|Court of Cassation
|Public hearing of March 26, 1996
N ° of appeal: 93-17895
Published in the bulletin
President: M. Bézard.
IN THE NAME OF THE FRENCH PEOPLE
Rapporteur: M. Canivet.
Advocate General: M. Raynaud.
Lawyers: SCP Lyon-Caen, Fabiani and Thiriez, M. Cossa.
Whereas, according to the confirmatory judgment under appeal (Bastia, May 10, 1993), that, on January 10, 1985, Ms. Vignal signed a deed of sale of 197 shares in the limited liability company Vincent et Nicolas (the company) for the benefit of Ms. Albertini; that, by deed of November 6, 1986, Ms Vignal and the company brought proceedings against Ms Albertini, stating that, the conditions of the transfer not having been respected, the signed deeds had been destroyed while no service or publication had been made. had been made, that, however, they had learned, on January 14, 1986, that the transfer of shares had been notified to the company and that the publication had taken place on January 3, 1986, that the acts thus published were forgeries, that they therefore intended “to challenge the veracity of the deed of assignment”; that a judgment of November 17, 1989 found that a regular transfer had indeed taken place on January 10, 1985, but that, the formality of the registration having been carried out by means of false “originals”, and these being devoid of probative force, the registration thus carried out was “of no effect with regard to the civil consequences of this formality”, and rejected all other requests;On the first plea, taken in its two branches:
Whereas the company and Ms. Vignal criticize the judgment for having declared the transfer regular, then, according to the appeal, on the one hand, that the judicial admission is fully authentic against the person who made it, that Ms. Albertini had, in his conclusions of appeal, admitted having “manufactured” herself “originals”, in order to proceed with the registration of the transfer of shares, and that by stating that no falsification, overloading or addition, the court of appeal violated article 1356 of the Civil Code, and then, on the other hand, that the trial judges can only rule for dubious reasons, by stating that each of the signatories had affixed his agreement by writing “it seems “consistent with his signature, the appellate judges disregarded this principle, thus violating article 455 of the new Code of Civil Procedure;
But given that the Court of Appeal held, for own and adopted reasons, that “the applicants do not dispute that the convention duly formed, was validly agreed by all the parties”, that “the deed of assignment stipulates that the sale price has actually been settled and that a receipt is given “,” that no other condition is provided for in the agreement “, and that no request for resolution or termination has been made; that, by these reasons, the court of appeal legally justified its decision; that the means is ineffective;
On the second plea, taken in its four branches:
Whereas the company and Ms. Vignal still criticize the judgment for refusing to declare the transfer to be null and void, then, according to the appeal, on the one hand, that article 45 of the law of 24 July 1966 requires notification of the planned transfer of shares to each of the partners of the company, which has a period of 3 months to accept or refuse the transfer; that by deciding that the intervention of all the partners in the deed of transfer could replace this procedure, the court of appeal violated the aforementioned text and articles 29 and 30 of the decree of March 23, 1967, then, of on the other hand, that the company can invoke the nullity of the assignment for non-compliance with the approval provided for by article 45 of the law of July 24, 1966; that by stating that only the co-partners could rely on a lack of approval, the court of appeal violated the aforementioned text, then, in addition, that in support of their request for nullity of the transfer of disputed parts, Mrs. Vignal and the company had, in their conclusions appeal, maintained that Mrs. Albertini was only the nominee of his son Pierre, what the latter did not formally contest; that by refraining from responding to these conclusions, the court of appeal violated article 455 of the new Code of Civil Procedure, and then, finally, that the company had argued that it was bound by a contract of franchise with “
But given, in the first place, that having noted that the act had been notified to the company at the behest of the transferee, the court of appeal, apart from the erroneous but over-abundant reason referred to by the first branch, thus rendering inoperative the reason erroneous aimed by the second branch and responding implicitly but necessarily to the conclusions invoked by the fourth branch, judged rightly that the cession was opposable to the company;
Given, secondly, that the acquisition of shares by nominee does not in itself constitute a ground for nullity of the transfer, the court of appeal did not have to respond to the conclusions without effect invoked by the third branch;
From which it follows that the means cannot be received in any of its four branches;
FOR THESE REASONS :
DISMISSES the appeal.
Publication: Bulletin 1996 IV N ° 98 p. 82
Revue des Sociétés, 1996-12, n ° 4, p. 799, note Y. CHARTIER. Legal Week, Company edition, 1996-11-28, n ° 48, p. 267, note E. JEULAND.
Contested decision: Bastia Court of Appeal, 1993-05-10
Case law precedents: TO BE CONSIDERED: (1 °). Commercial Chamber, 1990-04-24, Bulletin 1990, IV, n ° 124, p. 81 (rejection). TO BE COMBINED: (2 °). Commercial Chamber, 1990-05-09, Bulletin 1990, IV, n ° 145, p. 97 (rejection); Commercial Chamber, 1995-03-21, Bulletin 1995, IV, n ° 99, p. 88 (rejection). TO COMBINE: (3 °). Commercial Chamber, 1961-01-30, Bulletin 1961, III, n ° 54, p. 47 (rejection); Civil Chamber 1, 1972-12-06, Bulletin 1972, I, n ° 280, p. 247 (dismissal).