Signing a commercial lease before a French company exists can be commercially sensible: the premises may be needed for a licence application, equipment delivery, insurance, hiring or an opening date. The difficult situation arises later, when the company has been registered but refuses to take over the lease, or when its new manager says that the lease was never approved. The founder then needs to know who the landlord can pursue, whether rent and the security deposit remain personal liabilities, and how the file can still be regularised.
The central rule is chronological. A commercial company acquires legal personality when it is registered with the registre du commerce et des sociétés (RCS), the French companies register. Before that date, a “company in formation” is a project and not yet the contracting legal person. The person who signs for that project is exposed unless the registered company validly takes over the commitment. Registration alone is not a universal cure for an incorrectly documented lease.
This guide addresses the post-registration refusal scenario for foreign founders. It distinguishes a lease signed in the name of the future company from a lease signed personally, explains the takeover mechanisms for a société par actions simplifiée (SAS, a flexible French joint-stock company) and a société à responsabilité limitée (SARL, a French limited-liability company), and sets out a practical evidence and remedy plan. It also explains why the Kbis extract, the filing with the greffe (the registry office), the guichet unique operated through INPI (the French Intellectual Property Institute), and the RCS date must be kept together in one file.
A refusal should be handled quickly. It can leave the founder paying rent while the company occupies the premises, but it can also reveal that the lease, the articles of association, the shareholder decision and the landlord’s expectations were never aligned. The best outcome is often a documented takeover or a negotiated exit. If that is impossible, the parties’ exact signatures and the evidence of their conduct determine the available claim.
I. What does a commercial lease signed before French company registration legally do?
A. Why the founder remains bound until the company takes over
The first question is not whether the founder intended to create a French company. It is who was legally capable of being the tenant on the date of signature. The French company may have a proposed name, a draft registered office, a bank account application and a tax plan, but those elements do not give it legal personality. A lease signed during this period is normally an act made “for the account of” a company in formation. That wording is useful, but it must be supported by the formal takeover rules and by the actual document.
Article L. 210-6 of the French Commercial Code states: « Les sociétés commerciales jouissent de la personnalité morale à dater de leur immatriculation au registre du commerce et des sociétés. » In English, the company becomes a legal person from its RCS registration. The same provision then gives the consequence for pre-registration acts: « Les personnes qui ont agi au nom d’une société en formation avant qu’elle ait acquis la jouissance de la personnalité morale sont tenues solidairement et indéfiniment responsables des actes ainsi accomplis, à moins que la société, après avoir été régulièrement constituée et immatriculée, ne reprenne les engagements souscrits. » The word “indefinitely” matters: the signatory’s personal exposure is not capped merely because the proposed company was intended to be an SAS or SARL.
Article 1843 of the Civil Code expresses the same mechanism in broader terms: « Les personnes qui ont agi au nom d’une société en formation avant l’immatriculation sont tenues des obligations nées des actes ainsi accomplis, avec solidarité si la société est commerciale, sans solidarité dans les autres cas. » It adds that the registered company may take over the commitments, which are then treated as having been contracted by that company from the beginning. For a commercial lease, the practical starting assumption is therefore that the person who signed remains answerable until the takeover is established, not that the landlord must wait for an internal corporate debate.
This rule does not mean that every founder who helped negotiate a lease becomes a tenant. Signature, representation and the lease’s wording remain decisive. If the founder signed personally as “tenant”, gave a personal guarantee or accepted a rent guarantee, the landlord may rely on that undertaking even if the lease also mentions a future company. If several founders signed on behalf of a commercial company in formation, solidarity can allow the landlord to pursue any one of them for the obligations covered by the act, subject to the document and any valid limitation or guarantee arrangement. If a foreign parent company signed directly, its own liability must be analysed separately from the future French subsidiary’s liability.
The lease should be read word by word. The heading may say “company in formation”, while the signature block may identify an individual without that capacity. The landlord’s consent may be conditional on registration, or the lease may contain a substitution clause. The commencement date may precede the RCS filing, and the rent-free period may depend on delivery of the premises. The signature page, annexes, guarantee, inventory, insurance certificate and correspondence are part of the legal evidence. A later Kbis cannot silently rewrite a signature that identified the founder as the tenant.
Contract law reinforces this analysis. Under Article 1103 of the Civil Code, « Les contrats légalement formés tiennent lieu de loi à ceux qui les ont faits. » Under Article 1104, « Les contrats doivent être négociés, formés et exécutés de bonne foi. Cette disposition est d’ordre public. » A founder cannot assume that an internal refusal by the new manager releases the person who signed. Conversely, the landlord cannot disregard a properly documented company takeover simply because the initial signature occurred before registration.
Foreign founders should also separate four dates that are often confused. The first is the date on which the lease was signed. The second is the date on which the articles were signed. The third is the date of the company’s RCS registration, normally evidenced by the Kbis extract. The fourth is the date on which the shareholders or company representative approved or implemented the takeover. The legal effect may be retroactive once a valid takeover occurs, but the proof of the takeover still needs to identify the act and the company. Keep the registration receipt from the INPI filing, the final Kbis, the draft and signed articles, and any decision approving the pre-registration acts.
“Greffe” and “guichet unique” also describe different stages. The greffe is the registry office that processes the company registration information for the RCS. The guichet unique is the digital filing channel through which the incorporation formalities are submitted; INPI operates that channel. The Kbis is the official extract showing the registered company’s identity and registration details. None of those labels proves, by itself, that a disputed lease was taken over. They establish that the company exists and help identify the date from which a takeover decision could be made.
The commercial lease rules must then be checked. Article L. 145-1 of the Commercial Code applies the commercial lease regime to premises in which a business is operated, including premises used by a trader or industrial business registered with the RCS. The character of the premises and the business activity may affect the regime. A lease called “commercial” in an email is not enough if the signed contract and actual use point elsewhere, but a founder should not postpone the liability analysis while debating that label.
B. How a French SAS or SARL can take over the lease after registration
A valid takeover is a corporate act with an identifiable route. For a SARL, Article R. 210-5 of the Commercial Code provides that the statement of acts made for the company in formation is presented to the shareholders before the articles are signed, and that the statement is annexed to the articles. Its operative wording is: « Cet état est annexé aux statuts, dont la signature emporte reprise des engagements par la société, lorsque celle-ci a été immatriculée au registre du commerce et des sociétés. » A commercial lease should therefore be described precisely in the annex: landlord, premises, date, rent, deposit, term, guarantee, conditions precedent and the person who signed.
The SARL can also use a mandate in the articles or a separate instrument. Article R. 210-5 requires the mandate to identify the engagements and their terms. A vague instruction such as “negotiate premises” is weaker than a mandate identifying the landlord, address, maximum rent, term, deposit and authority to sign. If the mandate is sufficiently determined, registration can bring about the takeover of the identified act. The person signing must remain inside the mandate; a materially different lease may not benefit from the same result.
For an SAS, the corresponding rule is in Article R. 210-6 of the Commercial Code. The SAS constitution documents should record the lease in the statement of pre-registration acts or provide a clear mandate. The wording should avoid a generic authority that leaves the landlord, the premises or the economic commitment uncertain. A foreign shareholder or parent may approve the commercial decision, but the French company’s corporate documents must still show how the registered company takes over the act under French law.
The third route is a post-registration decision by the competent corporate body. The precise body and majority depend on the form, the articles and the act. The decision should identify the lease, confirm the company’s intention to take it over, authorise the representative to notify the landlord, and record the effective consequences for rent, deposit, insurance, fit-out works and guarantees. Send the signed decision and the Kbis to the landlord. If the lease contains a substitution clause or requires landlord consent, obtain that consent in the form required by the contract. A unilateral internal resolution may not amend a clause that expressly requires a tripartite amendment.
French public guidance gives the same operational warning. The Service-Public Entreprendre guidance on starting before registration says: « Il est possible de démarrer l’activité avant l’immatriculation de la société. Dans ce cas, il est important d’indiquer sur tous les documents la mention “Société en cours de formation”. Il faut également rédiger une annexe aux statuts indiquant tous les actes passés avant la demande d’immatriculation. » The English lesson is practical: use the correct capacity in every document and maintain one complete schedule of acts. A lease omitted from the schedule creates a preventable argument about what the company intended to take over.
The effect of a valid takeover is not the same as a new lease signed months later. The commitment is treated as having been made by the company from the origin, subject to the applicable formal route and the contract. This can preserve the commercial start date, rent-free period and negotiated conditions. It also means that the company should take a position on ancillary commitments. If the founder also ordered works, bought equipment or signed an insurance policy, each act needs its own analysis. Taking over the lease does not automatically take over every other contract connected with the premises.
The Supreme Court’s current approach should be read with care. In Commercial Chamber, 29 November 2023, no. 22-12.865, the Court held: « la validité de l’acte passé pour le compte d’une société en formation n’implique pas, sauf les cas de dol ou de fraude, que la société effectivement immatriculée revête la forme et comporte les associés mentionnés, le cas échéant, dans l’acte litigieux. » The decision prevents an overly rigid objection based only on a change of form or shareholders. It does not remove the need to prove that the act was made for the company in formation and that a legally recognised takeover occurred.
Before registration, ask the landlord to accept a signature block such as “X, acting in the name and for the account of [proposed company], a company in formation”, followed by the proposed form and registered office. Add a schedule of acts to the articles, or prepare the mandate with concrete parameters. After registration, arrange the decision immediately rather than relying on rent payments as an informal signal. The founder should send the landlord a clean package: signed lease, corporate decision, Kbis, authority of the signatory and a statement of which commitments are covered. This is the simplest way to turn a dispute about intention into a document-based takeover.
For background on the preparation stage, a related guide on signing a French commercial lease before company registration explains how the pre-registration signature should be documented. The present issue is narrower: what happens when the company is now registered but refuses to take over. Both pages should be read together, but the refusal creates a new liability and remedies question.
The article’s practical corporate-formation hub is French company formation assistance for foreign founders. It is useful when the lease problem is part of a larger incorporation file involving the registered office, bank account, tax registration or the first employment relationship. A founder should not let a lease dispute obscure a separate deadline in the company’s legal calendar.
II. What should a foreign founder do when the company refuses to take over?
A. Who pays rent, deposit, works and exit costs?
A refusal produces a liability map, not an automatic cancellation. Start with the lease and identify the named tenant, the capacity in which each person signed, any guarantee, and the takeover clause. If the company refuses to take over but occupies the premises, pays rent, installs equipment or presents itself to the landlord as tenant, those facts may help prove the parties’ intention. They do not always replace the formal takeover route. Conversely, if the landlord rejects the company as tenant and pursues the founder, the founder must not assume that a Kbis alone will defeat the claim.
The leading warning appears in Commercial Chamber, 6 December 2005, no. 03-16.853. The Court stated: « la reprise d’un bail conclu au nom d’une société en formation ne saurait résulter de ce que tous les associés ont concouru à la signature du bail et ont expressément donné leur accord à l’engagement souscrit en le ratifiant. » In other words, all shareholders signing or later expressing agreement is not necessarily one of the recognised takeover mechanisms. The file needs the annexed statement, a sufficiently precise mandate or a post-registration decision, depending on the route.
In Civil Chamber 3, 13 July 2011, no. 10-18.640, the Court’s reasoning records that the company had “explicitly taken over the commitments of its founders” and was the tenant of the lease. The exact phrase is: « la société Péché Mignon, qui avait explicitement repris les engagements de ses fondateurs, était preneur du bail ». The contrast with a refusal is direct. An express takeover can make the company the tenant; a founder’s assumption that everyone understood the arrangement is weaker.
Do not treat rent payments as a universal answer. In Commercial Chamber, 15 January 2020, no. 17-28.127, the Court accepted a substitution in circumstances showing that the parties intended the company to replace the individual when the lease was signed and that the company had in fact substituted itself in the usual acts of performance. The relevant wording is: « les parties avaient la volonté de substituer la société 40 BC à M. P… lors de la signature du bail et que, de fait, la société 40 BC s’était bien substituée à lui dans tous les actes d’exécution de ce contrat habituellement accomplis par un preneur ». That is a fact-sensitive finding, not permission to ignore the statutory documents. Payments, invoices and occupation should be preserved as evidence, while the formal corporate decision is still sought.
The distinction between the lease and fit-out works can be decisive. In Civil Chamber 3, 30 March 2023, no. 21-25.920, the Court held: « la reprise d’un bail commercial conclu au nom d’une société alors qu’elle était en formation, n’emporte pas reprise des marchés de travaux conclus par des tiers pour l’aménagement du bien loué du seul fait que le bail oblige le preneur à effectuer ces travaux. » A company can therefore argue that it took over the lease while a contractor, architect or supplier remains tied to a different pre-registration act. Create a separate list for works orders, deposits, equipment, utilities, insurance and professional fees.
The legal regime of the premises also affects the exit calculation. Article L. 145-4 of the Commercial Code provides that the lease term cannot be less than nine years, while the tenant has a right to give notice at the end of a three-year period subject to the required notice period and formalities, unless a statutory or contractual exception applies. Article L. 145-9 states: « Par dérogation aux articles 1736 et 1737 du code civil, les baux de locaux soumis au présent chapitre ne cessent que par l’effet d’un congé donné six mois à l’avance ou d’une demande de renouvellement. » It further requires an extrajudicial act for notice. The founder should check the lease’s term, break dates, notice channel and any early termination clause before promising an exit date.
A useful liability matrix has at least five lines. First, base rent and service charges usually follow the named tenant until takeover, valid assignment, termination or another release. Second, the security deposit follows the lease and may be lost or returned according to the contract and the condition of the premises. Third, a personal guarantee can survive a corporate dispute and must be read independently. Fourth, works and supplier invoices require their own takeover analysis. Fifth, taxes, insurance, utilities and reinstatement costs may be allocated by separate clauses. The landlord’s claim, the company’s internal claim against its founder and the founder’s claim against the company are not automatically the same claim.
A director’s refusal can create internal consequences, but it does not necessarily release the original signatory against the landlord. If the company received the benefit of the premises, the parties should examine whether its conduct, a substitution clause, an assignment, a novation or an express takeover supports a claim. If the company never occupied the premises and the founder signed personally, the founder’s negotiation position may be poorer, but the company may still have breached an internal mandate or shareholder agreement. The correct defendant and remedy depend on documents, not on the job title used in an email.
Likewise, a foreign parent, investor or co-founder is not automatically liable because it approved the project. Liability may arise from its signature, guarantee, mandate, fraud or another independent undertaking. A group chart cannot substitute for the lease’s signature page. Keep proof of who authorised the premises, who paid the deposit, which entity received invoices, and which entity held the insurance. This evidence can support a negotiated allocation even where it does not, by itself, prove a statutory takeover.
B. How to cure the file, negotiate an exit or start a claim
The founder should use a staged response. The aim is to secure the premises or release the personal signatory before arrears, penalties or enforcement costs accumulate. The following sequence is designed for a foreign founder who may be managing the French company from abroad and who needs an auditable file for the landlord, the company’s accountants and counsel.
- Freeze the evidence. Save the signed lease in its original form, every annex, the signature certificate, the landlord’s identification, the draft and final articles, the statement of pre-registration acts, any mandate, the Kbis, the INPI filing receipt, the rent schedule, bank statements, deposit proof, insurance certificate, inventory, keys record and all emails. Preserve the French and English versions separately. Do not rename a document in a way that hides its date or signatory.
- Build the chronology. Record the negotiation date, signature date, articles date, RCS registration date, possession date, first rent invoice, first payment, opening of the premises, works orders, company decision and refusal. Add the time zone and identity of the person who sent each important message. A clear chronology often shows whether the refusal occurred before or after the company accepted the premises, and whether the company’s conduct is consistent with a takeover.
- Classify each commitment. Put the lease in one line and list the deposit, guarantee, fit-out contract, architect appointment, equipment order, insurance, utilities and licence applications separately. For each line, state who signed, for which entity, whether the act appears in the articles’ annex, whether a precise mandate exists and whether a post-registration decision exists. This prevents the company from taking over the rent while leaving a founder unaware of a large works liability.
- Ask the company to decide formally. The shareholders or competent body should adopt a written decision identifying the lease and all terms it takes over. For an SAS, check the articles and the president’s authority; for an SARL, check the manager’s authority and the relevant shareholder approval. Attach the Kbis and make the decision date clear. If the lease requires landlord consent to substitution, obtain a signed amendment instead of assuming that the corporate decision binds the landlord.
- Send a complete notice to the landlord. Explain whether the company is requesting confirmation of a takeover, a tripartite amendment, an assignment or an agreed termination. Attach only the documents needed to prove authority and solvency, but do not conceal the original signature. Ask the landlord to state the precise objection: missing annex, wrong tenant name, guarantee, registration delay, change of company form, unpaid rent or refusal to contract with the new entity. A precise objection creates a route to cure.
- Check the premises regime and deadlines. Confirm whether the lease falls within the commercial lease chapter, the next triennial date, the notice period, the service method and the consequences of continued occupation. Under Article L. 145-9, an ordinary email is not a substitute for the required formal notice when that provision applies. Use a French commissaire de justice (judicial officer) when the contract or statute requires an extrajudicial act, and obtain proof of service.
- Protect cash and access. Do not stop rent payments abruptly because the company has refused the takeover. Non-payment can create a separate default and accelerate enforcement. If the founder is paying to protect the premises, record each payment as made under protest or pending allocation, according to legal advice, and request receipts identifying the payor and the tenant. If the premises are vacant, secure the keys and inventory while negotiating surrender; abandonment can create additional questions about insurance, deterioration and restoration.
- Offer a documented settlement. A landlord may accept a tripartite amendment, a new lease to the registered company with a release of the founder, a short interim agreement, or a negotiated surrender with a fixed payment. Put the release, deposit treatment, works, reinstatement, keys, utilities, insurance and final rent date in the signed document. A promise that “the company will take over later” is not the same as a release. If the landlord wants a new guarantee, compare it with the personal exposure that the founder is trying to end.
- Send a formal notice to the company where appropriate. If the company received the benefit or was bound internally to take over, set out the facts, identify the corporate documents and request the decision or reimbursement. Article 1217 of the Civil Code lists the available contractual sanctions, including refusing or suspending one’s own performance, seeking specific performance, termination and damages, and states that compatible sanctions may be combined. The notice should not overstate the legal position: it should distinguish a claim for formal takeover, a reimbursement claim, a mandate breach and a claim against a landlord.
- Escalate with the right documents. If negotiations fail, counsel can assess an urgent application, a claim for performance or damages, termination, a dispute over the tenant’s identity, or a defence to rent and guarantee proceedings. The dossier should include the exact lease, not only a summary; the court will need to see the capacity in the signature block, the acts schedule, the mandate, the decision, the landlord’s consent and evidence of performance. A translated summary can help a foreign board, but the French originals remain central.
- Close the corporate and tax consequences. Once the lease is taken over or ended, update the registered-office evidence, insurance, accounting records, payment mandates and any professional tax or VAT correspondence affected by the premises. “BODACC” means the Bulletin officiel des annonces civiles et commerciales, the official bulletin used for certain corporate and insolvency notices; it is not a replacement for the Kbis or the lease file. Ask the accountant to reconcile rent, deposit, restoration costs and any founder advance so that the company’s accounts reflect the actual legal outcome.
Cross-border execution adds practical risks. A founder in the United Kingdom, the United States or another country may sign through an electronic platform, a power of attorney or a board resolution. Verify the platform’s audit trail, the signer’s authority and the version of the document sent to the landlord. If a French landlord asks for a certified translation or evidence of authority, address that request early. The existence of a foreign shareholder does not change the French rules on the company’s registration and takeover, but it can make proof slower when the original corporate decision is held abroad.
The 2005 decision also shows why a later “ratification” email should not be treated as enough. In Commercial Chamber, 13 December 2011, no. 11-10.699, the Court required the lower court to establish that one of the recognised formalities had actually been completed, stating: « sans avoir constaté l’accomplissement régulier de l’une ou l’autre des formalités précitées, la cour d’appel n’a pas donné de base légale à sa décision ». The safest correction is therefore a formal, dated and authorised corporate act, followed by communication to the landlord and a written amendment when the lease requires one.
There is also a difference between curing a defective takeover and manufacturing a new tenant after a dispute has begun. If the landlord has already served a demand or started proceedings, obtain advice before signing a document that changes the tenant, waives a defence or acknowledges arrears. A settlement can be valuable, but it should say whether it releases the individual, whether the company becomes the sole tenant, how historic rent is allocated and whether the deposit is transferred. Without those details, the founder may exchange one ambiguous document for another.
Finally, match the remedy to the business objective. If the premises are strategically necessary, the priority is a rapid company takeover and a landlord confirmation. If the company has changed its plan, the priority is an agreed surrender and release. If the company used the premises but refuses the legal commitment, the priority may be a formal demand and recovery of the founder’s payments. If the lease was personally signed and the landlord will not release the founder, the priority is to calculate the exit date, negotiate the guarantee and protect against arrears. A single letter cannot solve all four situations.
Conclusion
A French company’s refusal to take over a commercial lease signed before registration does not make the lease disappear. The first signatory may remain personally and indefinitely liable for the commitment, particularly where the lease names that person or where no valid takeover route can be proved. The registered company can normally take over a pre-registration act through the statement annexed to the articles, a sufficiently precise mandate or a properly adopted post-registration decision, subject to the lease and any required landlord consent.
For a foreign founder, the decisive work is documentary. Separate the lease from works and supplier contracts, preserve the four key dates, identify every signatory and guarantee, and obtain a formal corporate position. Then choose between a confirmed takeover, a tripartite amendment, a negotiated exit or a claim based on the company’s conduct and obligations. Rent should not be stopped without a plan, and a notice should respect the commercial lease’s formal requirements. A complete file gives the landlord, the company and the court a reliable answer to the central question: which entity accepted which commitment, and when?
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