The renunciation of partnership by a spouse may be tacit

Cass. com, 21 September 2022, n°19-26.203

In its decision of 21 September 2022, the Court of Cassation provides further clarification on the spouse’s claim to partner status when joint assets have been contributed to a company.

1. The legal framework

As a reminder, Article 1832-2 of the Civil Code provides that a spouse married under the community regime who contributes joint property to a company must notify his or her spouse.

The latter may notify the company of his intention to become a partner personally for half of the shares subscribed or acquired. The spouse will then be entitled to the rights attached to the shares.

This claim is possible as long as a final divorce has not been pronounced.

2. The facts

In this case, a wife married under the community of property regime made a contribution to a company using common property.

The wife sets up her transport company during the marriage.

Subsequently, almost 20 years later and after the divorce proceedings had been initiated, his spouse notified the limited liability company of his intention to avail himself of his status as a partner in the amount of half of the shares, and requested communication of the company accounts.

Since his wife refused to provide him with these documents, he sued her and the limited liability company for recognition of his status as a partner and for disclosure of the requested corporate documents.

On 29 August 2019, the Aix-en-Provence Court of Appeal recognised the spouse’s status as a partner and ordered the limited liability company to provide him with the corporate accounts.

The Court of Appeal ruled that the spouse’s waiver of membership must be express, and that a tacit waiver could not be an obstacle to the assertion of his or her right.

The limited liability company appeals to the Supreme Court.

The latter complains that the Court of Appeal recognised the spouse’s status as a partner, whereas this claim infringes the contributor’s right to exercise a separate profession.

The LLC also argues that a spouse can only claim to be a partner if he or she is motivated by a real and serious desire to collaborate actively and in an interested manner, in the common interest, in the realisation of the corporate purpose.

Finally, it criticises the judgment for requiring an express waiver by the spouse of his or her wish to become a partner, whereas the waiver of a right is not subject to any formal condition, and may be tacit as long as it results from acts that unequivocally show the author’s wish to waive this right.

3. The opinion of the Court of Cassation

The Court of Cassation ruled on three separate complaints. The first two relate to the conditions for the spouse to claim his or her status as a partner, and the third concerns the modalities for the spouse to renounce this right.

a) The disregard of the preservation of the professional autonomy of a spouse

The Court of Cassation first rejected the argument based on the infringement of the contributing spouse’s right to exercise a separate profession. This rejection did not give rise to an examination of the merits since the Court considered that the limited liability company had no interest in acting on this grievance, since it was the company and not the wife who appealed to the Supreme Court.

b) Failure to take account of affectio societatis in the application of Article 1832-2 of the Civil Code

The Court of Cassation also ruled on the requirement to characterise an affectio societatis for the spouse to be able to invoke his or her status as a partner, characterised in this case by a real and serious desire to collaborate in the realisation of the company’s purpose.

On this point, the Court dismissed the complaint on the grounds that affectio societatis does not constitute a condition for a spouse to claim partner status on the basis of Article 1832-2 of the Civil Code.

The Court had already refused to recognise that affectio societatis is a condition of validity in the case of share transfers. It is difficult for a spouse who is not yet a partner to actively contribute to the realisation of the company’s purpose.

c) Tacit waiver of the spouse’s right to claim partnership

The Court of Cassation overturned the appeal decision on this point, considering that the waiver of the right to claim the status of partner may be tacit if the circumstances unequivocally establish the spouse’s desire to waive it.

This solution is not surprising since no legal provision requires an express waiver.

Furthermore, the Court has already recognised on several occasions the possibility of tacitly waiving a right when the will to waive is unequivocal.

However, the question arises as to how demanding the judges will be on the unequivocal nature of the waiver. It will be for the referring Court of Appeal to decide on this point.

So be careful when setting up a company or making a contribution!

It is always worth considering whether it is appropriate to obtain an express waiver of partnership from the spouse in property.

Such an act makes it possible to avoid any judicial uncertainty linked to the assessment of an unequivocal waiver…