3 mechanisms
By which a SAS can take over contracts signed during the formation period — the articles annex, the specific mandate, and post-registration ratification (Art. R. 210-6)
Joint & personal
The liability of every founder who signs contracts during the formation period if the company does not take them over — solidary and indefinite under Art. L. 210-6 al. 2
Guichet unique
Mandatory since 1 January 2023 for all company creation formalities — but electronic acknowledgement of receipt does not give the company legal existence; only RCS entry creates the company

The SAS Does Not Exist Until It Is Registered

A SAS acquires legal personality only from the date of its registration with the commercial registry (RCS). Until that registration happens, the company is treated as a société en formation. Every act taken "on behalf of" the company during this period is legally an act by the individuals involved in their own name, with their own personal exposure. Filing a creation dossier through the Guichet unique is not itself equivalent to registration — only the RCS entry creates the company, and only the Kbis extract confirms it.

⚠️
Personal Liability Is the Default

Before the SAS is registered, anyone who acts on its behalf — signing a lease, ordering equipment, engaging a consultant — is personally and jointly (solidairement) liable for every obligation arising from those acts (Art. L. 210-6, al. 2). This applies whether or not the person was formally designated as an officer or founder. If the company is never registered, or if it refuses to take over the act, the individual remains personally bound without any remedy against the company. There is no concept of "acting as agent" that automatically transfers liability to the as-yet non-existent entity.

Three Mechanisms for Transferring Liability to the Company

French law provides three structured routes by which a SAS can take over contracts signed during the formation period, substituting itself for the individual signatories and releasing them from personal liability (Art. R. 210-6). Each operates at a specific point in the formation timeline and has specific formal conditions — they are not alternatives to be chosen at leisure after the fact.

1
Articles annex — acts concluded before the articles are signed

A list of acts already concluded on behalf of the company in formation — specifying, for each act, the resulting obligation — is prepared and made available to founders at least 3 days before the articles are signed. The list is then annexed to the articles. When the articles are signed and the company is subsequently registered, takeover of all acts on the list is automatic. No separate decision is required. Critical limit: this mechanism only covers acts concluded before the articles are signed. Contracts entered into between signing the articles and completing registration cannot be covered by the annex; they must be addressed by a suspensive condition or post-registration ratification.

2
Specific mandate — acts to be concluded after the articles are signed

The founders can — in the articles themselves or in a separate document — authorise one or more of their number to enter into specified contracts on behalf of the company in formation. The mandate must be sufficiently precise: it must identify the commitments to be made and specify the terms. A mandate that is too general or vague has no legal effect (Cass. com., 24 March 1998, n° 96-11366; Cass. com., 14 November 2006, n° 05-16527). When the mandatary acts within the scope of this mandate and the company is subsequently registered, takeover is automatic by operation of registration. No additional collective decision is needed. The contract must state the correct formulation: "M./Mme [name], acting on behalf of the company [name], in formation" — not "as president of the company in formation."

3
Collective shareholder decision after registration — the safety net

Where neither of the first two mechanisms was used, shareholders can decide to take over a contract after the company is registered, by a collective decision taken in accordance with the articles. The directors alone cannot take this decision — it must be a shareholder act. There is no statutory time limit, but the personal exposure of the original signatory runs until takeover is completed. Shareholders can refuse to ratify specific contracts: where they refuse, the person who signed remains personally bound. This is a meaningful governance review power over commitments made without proper authorisation during the formation period.

Mechanism 1 — The Articles Annex: Completeness Is Everything

The list must be complete and precise. A list that identifies some contracts but omits others, or that lists contracts without specifying the resulting obligation for the company, is defective as to the omitted or imprecisely described items. The Cour de cassation illustrated this sharply: where a person acting for a company in formation engaged a consulting firm, and a list of acts was annexed to the articles, the court nonetheless held the individual personally liable — because the annex did not contain any indication of the obligation arising from the consulting engagement specifically (Cass. com., 13 July 2010, n° 09-68142). Only acts described with their resulting obligations are covered. The annex does not cover contracts concluded between signing the articles and obtaining registration — for those, use a suspensive condition or plan for post-registration collective ratification.

Mechanism 2 — The Specific Mandate: Precision and Correct Wording

The mandate must identify the commitments to be made with enough precision that the scope of authority is clear. A mandate that simply says "the mandatary is authorised to sign any contracts necessary for the company's business" is legally ineffective (Cass. com., 24 March 1998; Cass. com., 14 November 2006). Courts have held that a mandate does not need to pre-date the act it authorises in every case — where the mandate covers engagements necessary for the company's formation activity, automatic takeover on registration can apply even if the mandate was given after the contract was signed (Cass. com., 14 January 2003, n° 00-12557; Cass. com., 1 July 2008, n° 07-10676). But the prudent course is always to sign the mandate before the contract.

⚠️
The Wording in the Contract Matters

The distinction between acting "in the name of the company in formation" and acting "as president of the company in formation" is legally consequential — not semantic. Only the first formulation correctly positions the signatory as a specially mandated founder. The second attempts to use presidential authority that cannot yet exist, since the company has no legal existence. Contracts signed under the second formulation risk binding the individual personally even where a mandate exists, because the indication of authority relied upon in the contract was incorrect.

Effects of Takeover: Retroactivity and Release

Once a pre-registration act is properly taken over by the company — through any of the three mechanisms — the legal effect is retroactive. The act is treated as having been contracted by the company itself from the outset. The person who originally signed is released from the obligations arising from it, provided they did not separately give a personal guarantee. Third-party guarantees provided for formation-period obligations are also confirmed by the takeover (Cass. civ. 1re ch., 3 December 1980, n° 79-12619). However, where a founder gave a personal caution as security during the formation period, the company's takeover of the underlying contract does not discharge that caution — it survives independently (Art. L. 210-6).

When the Company Does Not Take Over: The Personal Consequences

Where a contract signed during the formation period is not taken over — because no mechanism was used, the shareholders refused, or the company was never registered — the person who signed is treated as the definitive party to that contract (Art. 1843 C. civ.). In some cases courts have found that where a contract clearly showed the signatory was not acting personally, the contract may be void for lack of a contracting party with legal capacity (Cass. com., 26 July 2019, n° 19-10006; Cass. com., 19 January 2022, n° 20-13719; Cass. com., 18 November 2020, n° 18-23239) — but this is uncertain and context-specific. The general rule remains personal liability. A critical procedural point: a company in formation has no legal personality and cannot bring legal proceedings. A court action filed in the company's name before registration cannot be cured by subsequent registration (Cass. civ. 2e ch., 4 March 2021, n° 19-22829).

⚠️
The Fraudulent Takeover

Where a takeover is arranged solely to transfer liability to an insolvent or worthless entity — not to protect the original signatory's legitimate interests — courts will treat it as a fraud on creditors and hold it null, leaving the individual personally bound as if no takeover had occurred (Cass. com., 2 July 1996, n° 94-19431). The takeover mechanism is not a vehicle for stripping assets from a founder's personal estate and leaving obligations with an empty shell.

The Tax Dimension: Avoiding Double Registration Duties

The company's takeover of a pre-registration contract does not give rise to a second levy of registration duties — provided the takeover document identifies the company precisely and introduces no novation to the essential terms (BOFiP-ENR-AVS-10-40). The fixed stamp duty of €125 applies to the ratification document itself (Art. 680 CGI). A specific risk arises for acts concluded before the tax administration considers the formation period to have begun (date of deposit of subscription funds, or date of appointment of the commissaire aux apports for in-kind contributions) — those may be treated as separate taxable transfers on takeover. Practical solution: insert a suspensive condition so the contract takes effect only upon incorporation and ratification — duties are then triggered at ratification, not at signing.

Founders' Bank Accounts

Where a founder opens a bank account in the name of the company in formation and issues cheques against it, they remain personally liable as drawer regardless of any subsequent ratification of the company's broader engagements (Cass. com., 25 March 2003, n° 01-00536). The ratification of broader corporate acts does not affect the personal obligation of the cheque drawer — it is personal and survives the takeover.

Formation Period Contracts: Practical Checklist
  • Choose your mechanism before signing: decide which of the three mechanisms (Art. R. 210-6) will be used to transfer each contract to the company before signing it. Personal liability is joint and indefinite (Art. L. 210-6 al. 2) and runs from the moment of signing until the company properly takes over the act.
  • Articles annex (Mechanism 1): prepare a complete, precise list of every act and its resulting obligation; make it available at least 3 days before signing; physically annex it to the signed articles. An incomplete annex leaves the founder personally exposed on missing items (Cass. com., 13 July 2010, n° 09-68142). Only covers acts concluded before the articles are signed — not the articles-to-registration window.
  • Specific mandate (Mechanism 2): draft with sufficient precision identifying the contracts authorised; sign before the contract where possible; ensure the contract states "acting on behalf of [company name], in formation" — not "as president of the company in formation." A vague mandate has no legal effect (Cass. com., 24 March 1998; Cass. com., 14 November 2006).
  • Post-registration ratification (Mechanism 3): where neither mechanism was used, take a collective shareholder decision to ratify immediately after registration — no statutory deadline, but personal liability runs until completed. Also the only route for contracts concluded between signing the articles and completing registration. Alternatively use a suspensive condition in the contract so it takes effect only on incorporation and ratification.
  • No legal proceedings before registration: never file claims, appeals, or formal legal steps in the company's name before RCS registration is confirmed. This procedural irregularity cannot be cured by subsequent registration (Cass. civ. 2e ch., 4 March 2021, n° 19-22829).
  • Personal cautions and tax: a personal caution given during the formation period survives the company's takeover of the underlying contract — it is not discharged (Art. L. 210-6). On the tax side, ensure the takeover document precisely identifies the company and introduces no novation to avoid double registration duties (BOFiP-ENR-AVS-10-40; CGI Art. 680). Cheque drawer liability is also personal and survives broader ratification (Cass. com., 25 March 2003).
Setting Up a SAS and Need Advice on Formation Period Contracts?

The rules on pre-registration contracts are technical, unforgiving on timing, and have both civil and tax dimensions. Getting the mechanism wrong — or forgetting to use one — leaves founders personally exposed on obligations they intended the company to bear. We advise on SAS formation, pre-registration contract structuring, and takeover documentation.

Get Legal Advice

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. The rules on pre-registration contracts are technical and fact-specific. Always seek qualified legal advice before taking any step during a company formation period.