Under French law, the enforceability of a share transfer against third parties requires the completion of certain formalities. However, in a ruling dated 21 May 2025, the French Cour de cassation held that the transferor’s heirs are not considered third parties to a transfer concluded prior to transferor’s death. They therefore cannot rely on the absence of formalities to challenge its effects with respect to them.
Article 1865 of the French Civil Code provides that the transfer of shares in a French civil company is only enforceable against the company if the transfer has been notified to it, accepted by authentic deed, or, when permitted by the articles of association, recorded in the company’s registers. In order to be enforceable against third parties, the transfer must also be published in the Trade and Companies Register, in addition to the formalities abovementioned.
If these conditions are not met, the transfer has no effect with respect to third parties.
In a ruling dated 21 May 2025,1 the French Cour de cassation clarified that the transferor’s heirs cannot be regarded as third parties. Therefore, they cannot rely on the lack of publication to challenge the enforceability of the transfer.
In the case at hand, an heir had acquired shares in a civil company from their deceased relative. Since the transfer agreement had not been published, the co-heirs argued that it was not enforceable against them and requested that the shares be reintegrated into the estate assets, a claim that the Reims Court of Appeal had upheld.
Before the French Cour de cassation, the acquiring heir argued that the co-heirs, having accepted the succession, had become parties to the transfer by succeeding to the rights of the deceased. Therefore, they could not be considered third parties.
The Court overturned the appellate decision based on Articles 724, 1122 (former version2), and 1865 (former version3) of the Civil Code. It affirms that the heirs of the transferor are not third parties and thus cannot invoke the lack of publication to contest the effects of the transfer.
Although rooted in succession law, this ruling is also relevant to corporate law. While heirs may be considered third parties during the lifetime of the transferor, their status changes upon the latter’s death. Acceptance of the succession results in the transmission of the estate, making them parties to the transfer agreement and presumed to be aware of the undertakings entered into by the deceased.
The scope of this decision appears to be applicable to the transfer of shares in French limited liability companies (société à responsabilité limitée – SARL) and general partnerships (société en nom collectif – SNC). Indeed, Articles L. 223-17 (SARL) and L. 221-14 (SNC) of the French Commercial Code also require publication formalities for share transfers to be enforceable against third parties.
However, the solution adopted by the Court raises certain questions. In particular, what if the transfer deed was concluded based on the personal qualities of the transferor and included commitments tied to those qualities?
Likewise, an express clause stating the intuitu personae nature of the transfer or the non-transferability of the parties’ rights and obligations could prevent the automatic transmission of the contract to the heirs. Indeed, nothing seems to prohibit the inclusion of such a clause, provided it reflects the mutual intent of the parties and complies with the contract’s validity requirements.
Thus, the May 21, 2025 ruling provides useful clarification for practitioners, while encouraging parties to structure their share transfer operations with care.
