A foreign founder may need to secure a first customer before the French company has received its Kbis, the official extract showing registration. The opportunity may be commercially urgent: a French customer may require a signed order, a pilot client may need a framework agreement, or an international group may want a French subsidiary to be contractually ready before its first invoice. French law does allow preparatory acts during this period, but it does not give an unregistered company the same legal personality as an incorporated SAS or SARL.

The practical question is therefore not simply whether the founder may sign. The decisive questions are who signs, in whose name, what the contract says, which formal route will allow the company to take over the commitment, and what happens if the Guichet unique or the greffe delays or rejects registration. The founder can often sign a customer contract, but a careless signature can leave the founder personally bound, or can expose the contract to a challenge for having been signed by a legal person that did not yet exist. The analysis below applies to a foreign founder signing from abroad as well as to a founder already present in France. It reflects the French rules and case law checked on 24 August 2026.

I. Can a foreign founder sign a customer contract before the French company is registered?

A. What does “company in formation” mean before registration?

A proposed French company passes through a legally important period between the decision to create it and its registration. In business English, this is often described as a company “in formation”. In French documents, the usual wording is “société en formation” or “société en cours d’immatriculation”. The wording identifies a project awaiting legal personality; it does not create legal personality by itself.

Article 1842 of the French Civil Code states that Les sociétés autres que les sociétés en participation […] jouissent de la personnalité morale à compter de leur immatriculation in the current text. The consequence is direct: the future company cannot be treated as an already existing SAS, SARL or other incorporated company merely because the draft statutes have been signed, the share capital has been deposited, or the future president has been appointed. The official Article 1842 of the Civil Code also provides that, until registration, the relationship between the founders is governed by the company agreement and the general principles of contract law.

For a commercial company, the same principle appears in Article L. 210-6 of the French Commercial Code: Les sociétés commerciales jouissent de la personnalité morale à dater de leur immatriculation. The reference to the Registre du commerce et des sociétés, or RCS, means the French Trade and Companies Register. Since the reform of business formalities, the filing is made through the Guichet unique operated by the Institut national de la propriété industrielle, or INPI. The INPI describes the Guichet unique and the Registre national des entreprises as the central entry point for creation, modification, cessation and accounts filings. The competent body may still be the greffe, the court registry, depending on the company and activity.

This distinction matters for a foreign founder because the proposed company may not yet have a final SIREN number, a definitive SIRET number for an establishment, a Kbis extract, a validated registered office or a French VAT position. A draft name and an address in the future articles are not substitutes for those identifiers. The founder must never invent a SIREN, present a draft Kbis as final, or describe the future company as already registered in a customer due-diligence file.

The absence of legal personality does not mean that every step must wait. The official Service-Public Entreprendre guidance on the creation of a company expressly recognises that activity may start before registration and recommends indicating “Société en cours de formation” on the relevant documents, with the pre-registration acts listed in an annex to the statutes. That administrative guidance must be read with the Civil and Commercial Code: the possibility of acting for the future company is a mechanism for allocating an act, not a blanket immunity for the person who signs it.

The starting rule for the person signing is found in Article 1843 of the Civil Code. It provides that Les personnes qui ont agi au nom d’une société en formation avant l’immatriculation sont tenues des obligations nées des actes ainsi accomplis, with solidarity when the company is commercial. The same provision allows the regularly registered company to take over the commitments, with the effect that they are treated as having been made by the company from the beginning. Until that takeover occurs, the founder is not simply a messenger. The founder is the legally exposed person.

That exposure is especially important when the founder is outside France. A foreign passport, a foreign residence and a foreign bank account do not prevent the person from signing for a French company in formation. They do, however, make evidence and execution more important. The customer needs to know the exact identity and address of the signatory, the proposed company name and form, the planned French registered office, the expected registration route and the allocation of responsibility if registration does not occur. A cross-border contract should also address the language of notices, electronic signing, governing law, jurisdiction and the time at which performance begins.

B. Can the founder sign a customer, supplier or distribution contract?

Yes, in many cases the founder can sign a customer or commercial contract before registration, but the contract should be signed by the founder acting for the company in formation, not by the unregistered company as if it were already a legal person. The difference may be visible in a single line beneath the signature, yet it determines whether the document enters the statutory takeover process.

A safe commercial signature normally identifies four elements:

• the founder’s full name, nationality or identification details where appropriate, and personal address or professional address;
• the proposed company’s name, planned form, future registered office and the words “company in formation” or “société en formation”;
• the capacity in which the founder signs, namely in his or her own name and for the account of the proposed company; and
• the precise customer commitment: the goods or services, price or pricing method, term, conditions precedent, delivery point, payment timing and any liability cap.

A useful English drafting formula is: “The founder signs this agreement in his or her own name and on behalf of [proposed name], a French [SAS/SARL] in formation, whose registered office is intended to be located at [address]. The parties acknowledge that the proposed company has not yet acquired legal personality. The agreement is entered into for the account of that company and will be submitted for takeover under the applicable French company-law procedure.” The French wording au nom et pour le compte de la société en formation may be included alongside the English wording where the customer, bank or filing adviser expects the traditional formula. The clause should not be copied without adapting the identity, timing and precise commitment.

The type of contract matters. A non-binding letter of intent, a memorandum of understanding, a conditional purchase order, a pilot agreement that starts only after registration, and a fully binding supply agreement do not create the same exposure. Calling a document a “term sheet” does not make it non-binding if it contains a definite service, price, exclusivity or payment obligation. Conversely, a document labelled “customer contract” may still be conditional if the operative clauses say that no service starts and no payment is due before registration and written confirmation.

The founder should separate negotiations from acceptance. Under Article 1112 of the Civil Code, L’initiative, le déroulement et la rupture des négociations précontractuelles sont libres, subject to good faith and the limits on damages for an unsuccessful negotiation. A foreign founder can therefore negotiate scope, pricing, technical specifications and a future start date before registration. The risk increases when the founder signs an accepted order, grants exclusivity, receives a deposit, promises immediate delivery or represents that the French entity already exists.

The ordinary rules of contract validity still apply. Article 1128 of the Civil Code requires consent, capacity and a lawful and certain content; the official Article 1128 text lists those three conditions. Article 1102 protects contractual freedom within legal limits, while Article 1103 provides that Les contrats légalement formés tiennent lieu de loi à ceux qui les ont faits. These provisions do not give the future company legal personality, but they do make a properly allocated founder contract commercially serious.

The customer should also avoid a false choice between “the company signs” and “the founder signs personally”. The document can identify the future business as the intended operating party while preserving the statutory mechanism: the founder signs personally, for the account of the company in formation, and remains personally liable until a valid takeover. If the customer refuses that allocation, the founder should consider delaying the binding signature, using a conditional agreement or signing a separate personal guarantee only after assessing the amount and duration of the commitment.

There is a sharp danger in signing “For and on behalf of [Company Name] SAS” when no SAS has yet been registered. The wording may suggest that the legal person itself is the contracting party. In Cour de cassation, Commercial Chamber, 21 February 2012, no. 10-27.630, the Court treated contracts signed by the company itself before registration as void and stated that la nullité affectant les actes conclus par une société dépourvue d’existence juridique a le caractère de nullité absolue. The contract in that case concerned commercial arrangements, but the principle is wider than a lease or a bank loan: a customer may use the defect to challenge a document that was presented as signed by a non-existent company.

The case law has since become more practical, but not risk-free. In Cour de cassation, Commercial Chamber, 29 November 2023, no. 22-12.865, the Court held that, where the document does not expressly state that the act is for the company in formation, the judge must examine all the circumstances to determine the parties’ common intention. The decision says that il appartient au juge d’apprécier souverainement, par un examen de l’ensemble des circonstances. This is a safety valve for a genuine transaction; it is not a drafting strategy. A foreign founder who deliberately omits the correct capacity line should not assume that an email chain or later payment will cure the defect.

The 2024 decision is useful for a commercial checklist because it shows what helped the signatory. In Cour de cassation, Commercial Chamber, 6 November 2024, no. 23-20.089, the Court upheld the conclusion that la commune intention des parties au contrat litigieux était que celui-ci fût conclu au nom ou pour le compte de la société en formation, after examining the proposed registered office, the constitutive document and the annex listing the relevant acts. The founder should recreate that evidential picture in the customer file rather than relying on the label “pending registration”.

Finally, a customer contract is not a licence to perform a regulated activity before the required authorisation, to issue a tax invoice without the required information, or to employ staff without following employment formalities. The contract can reserve a future service. It cannot erase professional licensing, consumer protection, sanctions, data-protection, product-safety or tax rules. For VAT, the founder should confirm the treatment and invoice sequence with the French tax administration; the official impots.gouv.fr overview of French VAT regimes explains that the regime is selected at creation and that the tax consequences depend on the nature of the operations and the chosen regime.

II. How should a foreign founder draft the contract, secure takeover and protect the customer?

A. Which documents and signature process reduce the risk?

The first safeguard is a coherent pre-registration file. It should contain the signed draft statutes, the identity of each founder, the proposed company name and form, the planned registered office, the capital and ownership structure, the beneficial-owner information, the business description, the customer contract and a written decision approving that contract or authorising a named person to sign it. For a foreign founder, add a copy of the passport, proof of authority for a corporate founder, translations where the customer reasonably requests them, and evidence showing who may bind the founder’s existing foreign business.

The second safeguard is to choose the correct takeover route before the contract is signed. French law does not offer one generic “ratification later” button. The route depends on the date of the act and the legal form of the future company.

Acts before the statutes are signed. Prepare an “act schedule” identifying each act, its date, counterparty, financial commitment, term, termination rights and any security. The schedule is presented to the founders and annexed to the statutes. For an SARL, Article R. 210-5 of the Commercial Code governs the schedule and the mandate route. Its structure makes the agreement’s identity and financial exposure visible before the statutes are signed.

For an SAS, the equivalent rule is Article R. 210-6 of the Commercial Code. It requires the act schedule to be made available to shareholders and provides for the effect of the statutes and registration. The provision also permits a mandate in the statutes or a separate instrument for defined commitments. The relevant principle is that the commitment must be identifiable. A schedule that says “all contracts necessary for the business” is weaker than a schedule naming the customer, agreement, maximum amount, term and principal obligations.

Acts after the statutes but before registration. Use a separate, specific mandate if the contract was not included in the schedule. The mandate should name the person authorised to sign, the counterparty, the agreement or transaction, the maximum price or financial exposure, the term, the subject matter, the conditions of performance and any authority to amend or terminate. The future shareholders or associates should sign it. The proposed president or gérant should not assume that a general power to manage the future business is enough.

The strictness of that requirement is illustrated by Cour de cassation, Commercial Chamber, 24 March 1998, no. 96-11.366. The official decision found that a mandate was general and insufficiently precise in circumstances involving a lease. That case is useful for a customer contract because a mandate to “enter into any agreement within the corporate purpose” does not necessarily identify the price, customer, duration or payment risk. The foreign founder should use a transaction-specific authority rather than treating the draft corporate purpose as a standing mandate.

Signature from abroad. A foreign founder may sign electronically if the process reliably identifies the signatory and preserves the integrity of the document. Article 1367 of the Civil Code provides that La signature nécessaire à la perfection d’un acte juridique identifie son auteur; the official Article 1367 also addresses reliable electronic identification and the link between the signature and the act. Article 1366 gives an electronic document the same evidential force as a paper document when the person and integrity can be identified. Use an audit trail, a timestamp, the signed PDF, the certificate or signature report and the final version circulated to the customer.

If the founder signs through a French lawyer, accountant or other representative, the file should include a written power of attorney. The power should identify the exact contract, the proposed company, the financial limits and the ability to accept amendments. A power to “handle incorporation formalities” may not authorise the representative to bind the founder to a long-term customer agreement. If the proposed shareholder is a foreign company, the file should also establish the authority of the person who signed its board or shareholder resolution.

Electronic signature does not solve the company-personality problem. It proves who signed and what was signed; it does not transform an unregistered entity into a legal person. Similarly, a French translation, an apostille or a notarised power may improve evidence, but it does not replace the act schedule or the specific mandate. The contract should therefore have one signature block for the founder in the correct capacity and, where helpful, a customer acknowledgement that both parties understand the company is pending registration.

The customer’s own protection should be written into the contract. A balanced clause can state that:

• the founder acts in his or her own name and for the account of the company in formation;
• the contract will be submitted for takeover immediately after registration;
• the company will provide its Kbis or RNE information and confirm the takeover by a dated corporate decision;
• the customer may suspend performance or terminate if registration has not occurred by a defined long-stop date;
• no delivery, payment, exclusivity or use of intellectual property starts before the agreed condition is satisfied, unless the customer expressly accepts the founder’s personal exposure; and
• the parties will not backdate the registration, invoice, acceptance or takeover documents.

A condition precedent can reduce operational uncertainty, but it should be drafted precisely. “Subject to registration” may mean that the whole contract is not yet effective, or that only performance is postponed. State which obligations are binding immediately, who pays incorporation costs, who owns pre-registration work product, and whether the customer may walk away without a penalty if the Guichet unique rejects the filing. If the customer pays a deposit, identify whether it is refundable, held by the founder, or payable only after the company’s account is operational.

Once the company is registered, the founder should not simply send an email saying “the company has taken over”. The file should include the final registration evidence, the Kbis or equivalent RNE information, the registered articles, the corporate decision or automatic-takeover evidence, and a short confirmation signed by the company’s registered representative. The contract should be updated only if the parties intend a novation or amendment. Otherwise, the confirmation should preserve the original economic terms and state that the company is now the debtor under the applicable takeover mechanism.

B. What happens after registration, and what if the company never registers?

Registration is the turning point, but it is not the end of the analysis. If the act schedule was properly annexed to the statutes, the statutory mechanism may cause the company to take over the listed contract on registration. If a precise mandate was given before registration, registration may produce the same result for the defined commitment. If neither route was used, the associates or shareholders should adopt a clear post-registration decision approving and taking over the contract, subject to the rules and majority provided by the company’s statutes.

The decision should identify the contract by date, counterparty and subject, approve the financial commitment, record the company’s willingness to take it over, and authorise the registered representative to notify the customer. Keep the signed minutes and proof of delivery. A resolution approving “all acts performed during the formation period” is less defensible than a schedule that identifies each agreement. The company should also update its internal legal register and accounting records and make sure the first invoices, payments and tax entries match the actual date and party of performance.

The legal effect of takeover is important. Under Article 1843, the commitment is treated as having been made by the registered company from the beginning. That does not mean that every person who signed disappears from the record. A founder who gave a personal guarantee, signed a bill of exchange, made a separate warranty or committed a personal breach may remain exposed. The company’s takeover also does not rewrite a tax invoice, delivery, regulated authorisation or data-processing obligation that was unlawful or impossible at the earlier date.

The Supreme Court has insisted that takeover is not achieved by wishful substitution. In Cour de cassation, Commercial Chamber, 18 June 2025, no. 24-14.311, it stated: La reprise d’un acte accompli au cours de la période de formation d’une société ne peut résulter du seul accord ou de la seule volonté of the parties. The decision requires compliance with the statutory and regulatory methods. This recent ruling should be placed next to the more flexible 2023 decision: a judge may investigate common intention where the act’s wording is imperfect, but the parties cannot replace the formal takeover process with a private statement that they now regard the company as substituted.

The same point appears in Cour de cassation, Third Civil Chamber, 30 March 2023, no. 21-25.920, which held that takeover of construction contracts was not implied merely because a company had taken over a commercial lease requiring works. The official decision states that the takeover of those contracts had to result from the statutes and annex, a defined pre-registration mandate or a post-registration majority decision. The lesson for a customer contract is simple: listing one commercial relationship does not automatically transfer every related purchase order, subcontract, software licence, side letter or personal guarantee.

If the company never registers, Article L. 210-6 becomes the practical risk rule. The person who acted for the company in formation remains responsible, and for a commercial company the responsibility is generally joint and unlimited as provided by the statute. The customer may demand performance from the founder, claim damages for breach or seek the contractual remedy applicable to the founder’s personal obligation. The exact result depends on the wording: a properly signed act for the account of a company in formation may remain a valid founder commitment awaiting takeover, while an act signed by the non-existent company may be challenged as void.

Article 1178 of the Civil Code says Un contrat qui ne remplit pas les conditions requises pour sa validité est nul. The official Article 1178 text adds that the annulled contract is treated as never having existed, with restitution rules and possible damages. This is why a founder should not assume that performance, a partial payment or the later issuance of a Kbis will always cure a defective signature. A registered company can take over a valid founder act through the statutory procedure; it cannot automatically validate every contract signed by an entity that did not yet exist.

The 2023 case law gives the customer and founder a practical evidence question. If the contract lacks the traditional wording, the court may consider the entire record: the draft statutes attached, the identity of the future manager, the intended registered office, the act schedule, the bank deposit, emails identifying the future entity, the customer’s knowledge, the form eventually registered and the absence or presence of fraud. This may preserve a genuine transaction. It also creates uncertainty, cost and delay. A foreign founder seeking a fast customer launch should treat the common-intention analysis as a last-resort argument, not as a substitute for a careful signature block.

Commercial proof has an additional dimension. Under Article L. 110-3 of the Commercial Code, acts of commerce may generally be proved by any means against merchants unless the law provides otherwise. Emails, data-room versions, e-signature logs, board approvals and payment records may therefore matter. Evidence of the commercial relationship does not prove that the correct person or entity was bound, however. It is necessary to prove both the agreement’s content and the legal capacity or takeover route.

The foreign founder should also monitor the registration process rather than treating the filing receipt as the Kbis. The INPI explains that a creation filing is transmitted to the competent authority, and that irregularities may generate a request for regularisation in the Guichet unique dashboard. A filing receipt can show that an application was submitted; it does not necessarily prove that the company has been registered. Until the final status is available, the founder should not tell the customer that the French company has acquired personality or that the RCS entry is complete.

Tax and invoicing should be sequenced with the corporate evidence. The company may have preparatory costs before registration, but the correct treatment of a customer invoice depends on the transaction, the VAT regime, the date of supply and the tax identifiers available. The French tax administration’s VAT guidance explains the main regimes and the relationship between taxable operations, collection and deduction. Where the customer is in another country, check place-of-supply and reverse-charge rules separately; the company-law takeover clause does not answer a VAT question.

A foreign founder should keep a post-registration closing checklist:

• download the final Kbis or RNE information and confirm the legal name, form, address and representative;
• compare the registered company with the entity described in the pre-registration contract;
• obtain the act schedule, mandate or corporate takeover resolution that covers the exact agreement;
• send the customer a dated takeover confirmation and, where necessary, an amendment correcting the party description;
• replace provisional identifiers with the real SIREN, RCS and VAT details when legally available;
• check whether the customer contract contains a personal guarantee, founder indemnity or direct liability that survives takeover; and
• archive the signed contract, all versions, signature evidence, registration notices, minutes, invoices and proof of customer receipt.

Before registration, the founder can still choose a lower-risk commercial path. The parties may sign a non-binding proposal, a conditional order, a letter of intent, or a framework agreement with no performance until the French company is registered. They may also use the existing foreign company as the contracting party if it is genuinely willing and able to perform, while making clear that the future French company will be a later affiliate or subcontractor. That choice must reflect the real business and tax structure; it should not be used to conceal a French permanent establishment, regulated activity or employment relationship.

The correct approach is therefore a controlled sequence: negotiate before registration, identify the future company without pretending it already exists, sign through the founder for its account, attach the act or obtain a precise mandate, file the company through the INPI Guichet unique, obtain final registration evidence, adopt or evidence the takeover, then activate performance and invoicing. The sequence gives the customer a clear answer and gives the foreign founder a document trail that can be understood by a French greffe, a bank, a tax office or a court.

Conclusion

A foreign founder may sign a French customer contract before the company receives its Kbis, but the contract should not be presented as signed by an already incorporated SAS or SARL. The founder must sign in the correct personal capacity for the account of the company in formation, identify the proposed entity, define the commitment and organise one of the statutory takeover routes. The act schedule, precise mandate and post-registration corporate decision are not decorative formalities: they determine who is bound and whether the company can become the debtor from the beginning.

The 2023 and 2024 decisions show that courts may examine the parties’ common intention and the surrounding documents when a contract is imperfectly drafted. The 2012 and 2025 decisions show the limits of that flexibility: a contract signed by a non-existent company may be void, and a private agreement to substitute the company cannot replace the legal takeover methods. For a foreign founder, a carefully drafted English contract, a French capacity formula, reliable electronic evidence and a dated registration checklist are the most effective way to convert a first customer opportunity into a valid French corporate relationship. Further guidance on the wider process is available through the firm’s French company formation and corporate-law service.

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