Foreign founders often sign a French commercial lease before the company has received its registration extract. The practical difficulty does not end when the application is filed. The proposed shareholders may change, the business may move from a société par actions simplifiée (SAS, a simplified joint-stock company) to a société à responsabilité limitée (SARL, a limited liability company), or the person who negotiated the premises may not be a shareholder of the company finally registered. The landlord may then ask whether the lease can still be transferred to the new company, or whether the original signatories remain exposed.

The answer is not a simple yes or no. A French company has no legal personality before registration, but French law provides mechanisms for taking over commitments made for a company in formation. The Court of Cassation changed the practical analysis on 29 November 2023: a change in shareholders or legal form is not, by itself, fatal to the takeover. The court must examine the lease, the surrounding correspondence and the parties’ common intention, subject to fraud and the other ordinary rules of contract law.

For the wider formation sequence, the firm’s French company formation service is the relevant pillar page; this article deals with the narrower lease-takeover problem.

This article addresses the specific post-signature problem. It does not repeat the general question of whether a foreign founder may sign before registration; that broader question is covered in the earlier article on signing a French commercial lease before company registration. The focus here is what happens when the company that is ultimately registered is not exactly the company described in the first draft, and what evidence should be prepared before rent, a deposit or a personal guarantee becomes difficult to unwind.

I. Can a French company take over a commercial lease after its shareholders or legal form change?

A. What happens when the lease was signed before registration?

The first point is temporal. Article 1842 of the French Civil Code states that companies acquire legal personality on registration. The official text provides that companies “jouissent de la personnalité morale à compter de leur immatriculation.” The relevant registration is ordinarily the registration in the Registre du commerce et des sociétés (RCS, the Trade and Companies Register) for a commercial company. Today, the filing route is generally the Guichet unique operated through the Institut national de la propriété industrielle (INPI, the French Intellectual Property Institute), with information also appearing in the Registre national des entreprises (RNE, the National Register of Businesses). The official version of Article 1842 of the Civil Code should be read before the lease is signed.

That rule explains why the draft must not treat a future company as if it already existed. A signature block that simply says “French NewCo SAS” when no SAS has yet been registered creates a serious identification problem. The safer structure identifies the individual or individuals who sign, states that they act for the company in formation, describes the intended company and its proposed activity, and records the mechanism by which the company will take over the lease after registration. The words “company in formation” are not decorative. They tell the landlord that the legal person does not yet exist and that the signatories accept a transitional risk.

Article 1843 of the Civil Code allocates that transitional risk. It provides that persons who act in the name of a company in formation before registration remain bound by the obligations created by those acts. Its official wording begins: “Les personnes qui ont agi au nom d’une société en formation avant l’immatriculation sont tenues des obligations nées des actes ainsi accomplis.” The complete official text of Article 1843 then explains that a regularly registered company may take over those commitments, with the commitments treated as having been made by the company from the beginning.

For a commercial company, Article L. 210-6 of the French Commercial Code expresses the same principle in stronger terms. The provision says that commercial companies acquire legal personality on registration in the RCS, and that the persons who acted for the company in formation are jointly and indefinitely liable unless the registered company takes over the commitments. The opening sentence is exact: “Les sociétés commerciales jouissent de la personnalité morale à dater de leur immatriculation au registre du commerce et des sociétés.” The official Article L. 210-6 of the Commercial Code is therefore central to any lease signed before the Kbis is available.

Kbis means the official registration extract traditionally issued for a company registered in the RCS. It is evidence that the company has been registered; it is not what creates the company retroactively on the date of the lease. The greffe is the registry clerk’s office attached to the competent commercial court. A foreign founder should therefore distinguish three dates: the date the lease is signed, the date the formation documents are accepted by the filing system, and the date the company is actually registered. A filing acknowledgement or an INPI submission receipt is not the same thing as a Kbis.

The same distinction applies to other French administrative acronyms. URSSAF is the network that collects and administers social-security contributions. Signing a lease does not register the company with URSSAF and does not, by itself, create an employee or payroll obligation. BODACC means Bulletin officiel des annonces civiles et commerciales, the official bulletin for specified civil and commercial notices. A BODACC notice is not a substitute for the company’s registration extract, the executed lease or a formal takeover decision. These documents should be kept in one formation file rather than treated as interchangeable proof.

The key risk is what happens if registration fails, is abandoned or produces a different legal entity. If the company never becomes a legal person, there is no company capable of taking over the lease. The individuals who signed for the commercial company can remain exposed to rent, service charges, restoration obligations, taxes contractually allocated to the tenant, indemnities and the cost of leaving the premises. If registration occurs but the company does not validly take over the lease, the same transitional liability can remain. A foreign founder who is outside France may still be pursued under the lease, and a foreign address does not turn a personal guarantee into a corporate obligation.

This is why the initial lease should state the intended tenant with precision but should not conceal the formation stage. It should identify the signatories, the planned legal form, the proposed name, the registered office that will be used for filing, the business activity, and the exact premises. It should also state whether the lease is one of the acts to be included in a schedule attached to the articles of association, whether a specific mandate will be issued, or whether the company will adopt an express decision after registration. A vague promise that “the company will replace the founders later” is weaker than a defined takeover route.

The distinction between a change and a substitution matters. A change in the spelling of the proposed name may be minor if the parties’ intention is clear. A change from one company to another, or the use of a foreign parent as the tenant while intending a French subsidiary to pay the rent, creates a different question. The file must show whether the original act was made for the future French company, for the foreign parent, or for the founders personally. The lease should not be used to hide a permanent establishment, a branch activity or a personal occupation of the premises under a corporate label.

B. What did the Court of Cassation decide on 29 November 2023?

The practical approach changed through three decisions delivered by the commercial chamber of the Court of Cassation on 29 November 2023. They are especially useful for a foreign founder because they address the problem that occurs after the signature: the final company may not have exactly the same shareholders, form or wording as the draft described before registration.

In Commercial Chamber, 29 November 2023, appeal no. 22-12.865, the case involved a commercial lease signed for a company in formation. The company was ultimately registered with different shareholders and a different legal form from those mentioned in the original act. The Court verified the following legal proposition in its reasons: “la validité de l’acte passé pour le compte d’une société en formation n’implique pas”. The Court’s reasoning continues by excluding, subject to dol or fraud, the idea that the company must necessarily retain the form and shareholders named in the original act. In practical terms, a change from the founders initially named in a lease to the shareholders finally recorded in the RCS does not automatically defeat the takeover.

That result does not mean that a founder can sign anything and repair it later. The Court still requires the act to have been made for the company in formation, and it leaves room for fraud or an abusive arrangement. The evidence must connect the original lease to the company that was actually registered. Useful evidence includes the draft articles, the formation timeline, the proposed business activity, the landlord’s knowledge, emails exchanged before signature, the payment of the deposit, the identity of the person who negotiated the premises and the reasons for changing the shareholders or legal form.

In Commercial Chamber, 29 November 2023, appeal no. 22-18.295, the lease contained defective wording. The issue was whether the court could stop at the imperfect wording or examine all the circumstances. The Court stated that “il apparaît possible et souhaitable de reconnaître désormais au juge le pouvoir d’apprécier souverainement”. It required the lower court to determine whether, despite the drafting defect, the common intention was that the lease be concluded for the company in formation and later taken over by that company. The decision is a warning against both extremes: a missing formula is not always the end of the analysis, but a foreign founder should never rely on a judicial rescue as a drafting strategy.

The third decision, Commercial Chamber, 29 November 2023, appeal no. 22-21.623, concerned a transaction concluded for a company in formation where the wording did not perfectly identify the company. The Court accepted an assessment of the evidence because “la commune intention des parties était que l’acte soit conclu au nom ou pour le compte”. The facts included correspondence showing that the other contracting party knew the signatory was acting for a company in formation. This makes the landlord’s knowledge and the pre-contractual record important, especially where the founder is signing from another country through a power of attorney.

These decisions concern the legal treatment of acts made during the formation period; they do not remove the ordinary requirements of contract formation. Article 1128 of the Civil Code states: “Sont nécessaires à la validité d’un contrat : 1° Le consentement des parties ; 2° Leur capacité de contracter ; 3° Un contenu licite et certain.” The official Article 1128 remains relevant to the identity and capacity of the person signing, the premises, the permitted use and the rent. A change in shareholders cannot cure the absence of consent, authority, a lawful purpose or a sufficiently determined lease.

The decisions also do not make a post-registration email equivalent to every statutory takeover procedure. The company should still use the route that corresponds to the time at which the lease was signed. If the lease was listed in the acts schedule attached to the articles, the file should preserve the signed schedule and the signed articles. If a mandate was used after the articles were signed, the mandate should identify the lease and its material terms. If neither route was completed, the company’s competent body should adopt a clear post-registration decision and notify the landlord. The 2023 cases make the factual inquiry more realistic; they do not make corporate records optional.

The practical answer to the headline question is therefore conditional. A French company can generally take over a commercial lease after a change in the founders, shareholders or legal form when the evidence shows that the lease was made for the company in formation and the statutory or corporate takeover route has been completed. The founder should treat the change as a documentation and authority problem, not as a reason to rewrite the history of the transaction.

II. How should a foreign founder secure the lease, the takeover and the evidence?

A. Which documents and mandates protect a SAS or a SARL?

The safest process begins by choosing one takeover route before the lease is signed. The route depends on when the act occurs and on the proposed legal form. The foreign founder should not copy a form designed for a French resident individual without checking who is actually authorised to sign, what identification documents the landlord requires and whether the company will be a SAS, a SARL, a branch or a subsidiary.

For a SARL, Article R. 210-5 of the Commercial Code deals with acts made for a company in formation. It requires a statement of the acts and the commitment that each act would create for the company, and it provides for that statement to be attached to the articles. The official provision says that the articles’ signature can carry takeover after registration when the statement has been properly prepared. Its mandate mechanism is also specific: the partners may authorise one or more partners or the appointed non-partner manager to enter into commitments for the company in formation, provided the commitments and the mandate’s terms are determined. The official Article R. 210-5 of the Commercial Code should be used for a SARL file.

For a SAS, Article R. 210-6 is the corresponding provision for a company by shares without a public offering. It states that the statement of acts is made available to the shareholders and annexed to the articles, and that the articles’ signature can carry takeover after registration. It also states: “l’immatriculation de la société au registre du commerce et des sociétés emporte reprise de ces engagements par la société.” The official Article R. 210-6 of the Commercial Code is particularly important where an overseas parent is subscribing for the shares of a new French SAS.

The first route is therefore the schedule attached to the articles. Before the articles are signed, prepare a schedule that identifies the landlord, the premises, the date of the lease, the intended activity, the rent, the indexation mechanism, the deposit, the guarantee, the term, the permitted use and every commitment that the company will inherit. The schedule should identify the lease even if the final company name or shareholders later change. It should be signed together with the articles and retained with the registration file. The schedule is not a vague list of “formation expenses”; the lease must be identifiable without reconstructing it months later.

The second route is a specific mandate. Article 1984 of the Civil Code defines a mandate or power of attorney as an act through which one person gives another the power to do something for the principal and in the principal’s name. The exact official wording begins: “Le mandat ou procuration est un acte par lequel une personne donne à une autre le pouvoir de faire quelque chose pour le mandant et en son nom.” The official Article 1984 matters when the foreign shareholder, director or corporate parent cannot attend in France.

The mandate should name the person authorised to sign and define the transaction. It should cover the exact premises, the maximum rent, the lease duration, any rent-free period, the deposit, any guarantee, the permitted business and the authority to sign an amendment needed after registration. A mandate that simply authorises the representative to “do everything necessary to create the company” may be challenged as too general for a long-term commercial lease. A foreign power of attorney may need a certified signature, an apostille or legalisation, and a certified French translation depending on the country and the filing or landlord requirements. Those formalities should be checked before the signature appointment, not after the greffe requests a correction.

The third route is a post-registration decision. If the lease was not correctly scheduled or covered by a sufficiently precise mandate, the newly registered company should convene the body that has authority under its articles and adopt a decision identifying the lease and taking over its commitments. The decision should state the registration number, the date of registration, the lease date, the landlord, the premises, the rent, the deposit, the guarantees and the effective date. It should be sent to the landlord with the Kbis and, where appropriate, an amendment confirming the company’s substitution as tenant. The amendment is useful evidence even where the statutory takeover operates retroactively; it should not silently alter the rent, term or permitted use.

The founders should also prepare a change memorandum when the shareholders or form changes. It should record why the change occurred, who approved it, how the new company is connected to the original project and why the landlord is not being misled. If the original draft referred to a SAS but the company is registered as a SARL, the file should contain the final articles, the decision approving the form and the evidence that the landlord understood the transition. If a foreign corporate shareholder replaces an individual founder, identify the ultimate beneficial owner and retain the foreign company’s registry extract, constitutional documents, board resolution and authority of the signatory.

The French Guichet unique is the filing channel, not a substitute for the legal analysis. The founder should use the official French business formalities portal and the INPI information site for the current filing route, but the portal’s acknowledgement does not prove that the lease has been taken over. For the general corporate formation sequence, the government’s service-public.fr company-formation guidance should be checked alongside the articles and the lease. The evidence of corporate authority remains in the signed documents and the company resolutions.

The following sequence is practical for an overseas founder:

Stage	Document to prepare	Legal result to verify	Residual risk
Before the articles are signed	Lease for the company in formation and a detailed acts schedule	Articles signed with the schedule and company later registered	Founders remain exposed if registration or takeover fails
After the articles but before registration	Specific mandate naming the lease and its limits	Registration triggers takeover where the mandate is sufficiently precise	Overbroad mandates, altered terms or an unidentified lease
After registration	Corporate takeover decision, notice and landlord amendment	Corporate records identify the company as the tenant	Earlier personal guarantees and unpaid rent may survive
After a change of form or shareholders	Change memorandum, final articles, approvals and updated Kbis	Evidence connects the registered entity to the original act	Fraud, a different business or a different tenant may defeat the argument

B. Who bears the rent, guarantee and lease risk during the transition?

A foreign founder should review the economic consequences separately from the company-law takeover. A commercial lease is usually a substantial commitment. The rent may become payable before registration, and the landlord may ask for a security deposit, a bank guarantee or a personal guarantee. A takeover by the company does not automatically mean that every separate personal guarantee disappears. The guarantee document must be read on its own terms, and the landlord should be asked to release or replace it expressly if that is part of the commercial agreement.

The parties must also decide whether the document is a standard commercial lease or a different type of occupation agreement. Article L. 145-1 of the Commercial Code defines the field of the commercial-lease regime by referring to premises in which a business is operated. The official text begins: “Les dispositions du présent chapitre s’appliquent aux baux des immeubles ou locaux dans lesquels un fonds est exploité.” The official Article L. 145-1 should be checked against the actual activity, the premises and the intended operation. A foreign founder should not assume that calling a document a “commercial lease” automatically gives the tenant every protection associated with an operating business.

The ordinary commercial lease is long. Article L. 145-4 states: “La durée du contrat de location ne peut être inférieure à neuf ans.” The same provision gives the tenant a right to give notice at a three-year interval, subject to the statutory notice period and formalities. The official Article L. 145-4 makes the financial exposure clear. A founder who signs personally for a nine-year lease before the French entity is registered should model the rent and exit cost if the filing is delayed or refused.

The parties may instead consider a short-term derogatory lease, but that is not a casual “trial period.” Article L. 145-5 allows the parties, when the tenant enters the premises, to depart from the commercial-lease chapter if the total duration of the successive leases does not exceed three years. The official wording is: “Les parties peuvent, lors de l’entrée dans les lieux du preneur, déroger aux dispositions du présent chapitre à la condition que la durée totale du bail ou des baux successifs ne soit pas supérieure à trois ans.” The official Article L. 145-5 should be read before selecting a short-term format. The lease must still address the company-in-formation issue, the signatory’s authority, the rent and the takeover.

The company’s later substitution also does not erase the original contract’s ordinary rules. Article 1103 of the Civil Code states: “Les contrats légalement formés tiennent lieu de loi à ceux qui les ont faits.” The official Article 1103 supports careful drafting of the rent, indexation, repairs, insurance, permitted activity, assignment, subletting, renewal and termination provisions. A founder should not assume that the new company can renegotiate every clause merely because its legal form or shareholders changed.

The landlord’s information is equally important. Article 1112-1 of the Civil Code provides that a party who knows information that is decisive for the other party’s consent must disclose it when the other party legitimately does not know it or trusts the counterparty. The official text begins: “Celle des parties qui connaît une information dont l’importance est déterminante pour le consentement de l’autre doit l’en informer.” The official Article 1112-1 should be considered where the landlord is told that the tenant is a French company but is not told that the company is not yet registered, that the proposed shareholders may change or that a foreign parent may ultimately control the business.

The information pack should be proportionate but complete. For an individual foreign founder, it will usually include a passport, proof of address, details of the proposed business, a financial plan, evidence of funds and the signed power of attorney if someone else acts in France. For a foreign corporate shareholder, it may include a recent registry extract, articles, director information, a board resolution approving the French investment and a beneficial-owner statement. Documents should be supplied in the format requested by the landlord and by the filing authority, with apostille or legalisation and a certified French translation where required. The translation question is separate from the commercial lease’s validity, but a refusal at the formation stage can leave the signatories paying rent without a company to take over.

The registered office needs separate planning. A commercial operating site can be the company’s registered office if the legal and contractual conditions allow it, but a registered office may also be established through a domiciliation arrangement. The address printed on the Kbis, the premises actually occupied by the business and the address used for tax correspondence should not be confused. The lease should state whether the tenant may use the premises as its registered office, receive mail there, host customers, store goods or employ staff. If the landlord permits only a virtual address or prohibits customer access, the company’s articles and filing should not describe a broader activity without checking the contradiction.

Tax and administrative follow-up should be scheduled after registration. The French tax administration’s official professional portal is the appropriate starting point for corporate tax, business premises and value-added tax (VAT) questions. A lease may contain VAT language, recoverable charges or tax allocations, but the lease alone does not create a French VAT number or determine the company’s corporate-tax treatment. If the company has no turnover during the first months, the founder should still ask the accountant or tax adviser which declarations, elections and local-premises forms are required. The rent should be recorded under the entity that is legally responsible at each stage, with intercompany funding documented if the foreign parent pays before the French company takes over.

Payment records are important evidence. If the founder or foreign parent pays the deposit, rent or legal fees, the bank transfer should identify the intended company in formation and the underlying lease. The accounting file should record whether the payment is an advance, a shareholder loan, a reimbursement or a personal payment to be repaid. The bank reference should not simply say “rent France” when the transfer is meant to demonstrate that a specified commitment was made for a specified company. Once the French entity is registered, the company should reimburse or assume the payment through a documented entry and retain the original transfer proof.

Before signing, the founder should ask the landlord to confirm in writing four practical points: first, that the landlord knows the company is not yet registered; second, that the named signatory acts for the company in formation and accepts transitional responsibility; third, that the landlord will accept the company’s takeover after registration if the company’s shareholders or form change in the disclosed project; and fourth, what happens if the registration is refused or delayed. The fourth point can be addressed through a condition, a long-stop date, a short-term occupation arrangement or a negotiated cancellation mechanism. It should not be left to an informal promise that the landlord will “see later.”

If registration is refused, the founder should immediately preserve the refusal notice, the correction request, the filing receipt, the lease, the acts schedule, the mandate, the landlord’s correspondence and every payment record. The INPI or Guichet unique refusal may concern an apostille, translation, identity document, registered-office proof, corporate purpose or beneficial-owner declaration. That administrative issue is not the same as a lease dispute. The founder must also ask whether the lease contains a termination or condition clause linked to registration, whether the deposit can be returned, whether rent accrued during the period and whether a personal guarantee remains enforceable.

If the shareholders or legal form change after signature, the response should be faster than waiting for a dispute. Prepare a written corporate file containing the original lease, the new articles, the registration extract, the takeover decision, the change memorandum and a landlord notice. State expressly whether the company remains the same legal entity after a change of form or whether a new entity is being introduced. Explain the commercial reason for the change, confirm the same premises and business purpose, and attach the evidence of authority. Where the landlord’s consent or an amendment is required by the lease, obtain it before the new entity begins operating from the premises.

The founder should also check whether the lease’s permitted-use clause is wide enough for the final activity. A company may begin with consulting services and later add retail, hospitality, storage, manufacturing or customer-facing operations. A change in legal form does not authorise a change in use. Planning, safety, insurance and licensing issues can be independent reasons for the landlord to object. The founder’s file should therefore include the intended activity, any licence or authorisation, insurance confirmation and the corporate purpose in the final articles.

The final checklist is short but should be completed in order:

• Identify the signatories and state clearly that they act for a company in formation.
• Describe the proposed company, its legal form, its activity, its registered office and its intended shareholders without concealing possible changes.
• Choose the acts schedule, the specific mandate or the post-registration takeover route before signature.
• List the lease, rent, indexation, term, deposit, guarantee, permitted use and premises precisely in the relevant corporate document.
• Obtain the foreign corporate documents, powers, apostilles, legalisations and certified French translations that the filing and landlord require.
• Keep the INPI filing record, greffe requests, Kbis, RNE information and BODACC notices in the same file, while treating each as a different item of evidence.
• After registration, adopt and communicate the takeover decision, update the landlord’s records and request the release or replacement of any personal guarantee that should end.
• If the shareholders or legal form changed, prepare a memorandum explaining the change and showing why the registered company is the company for which the lease was made.
• If registration is refused, document the rent, deposit and guarantee consequences immediately instead of assuming that the lease has disappeared.

Conclusion

A change in the founders, shareholders or legal form does not automatically prevent a French company from taking over a commercial lease signed during its formation. The 29 November 2023 decisions confirm that courts can examine the whole factual record and that the final company need not always reproduce every shareholder or form mentioned in the first act. That flexibility is useful for international projects, where the final investor, corporate parent or legal form may change during the filing process.

The protection is conditional. Before registration, the individuals who act for a commercial company remain exposed under Articles 1842 and 1843 of the Civil Code and Article L. 210-6 of the Commercial Code. The lease should be tied to a precise acts schedule, a defined mandate or a clear post-registration decision. The landlord should know the formation status and the expected changes. Rent, deposits, guarantees, registered-office rights and permitted use should be addressed separately rather than left to the assumption that corporate takeover will solve every problem.

For a foreign founder, the decisive evidence is usually the chronology: who negotiated the premises, what the landlord knew, what the lease says, which corporate document identified it, when the company was registered, which shareholders and form were finally recorded, and how the company adopted and paid the commitment. That file allows the new French company to demonstrate continuity without pretending that it existed before its registration.

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