Extract
[...] This argumentation did not convince the Court of Cassation, which again pronounced itself with its knowledge and culture. Or, the realization of a common real estate project by concubines allows for the characterization of a de facto company? In the view of Article 1832 of the Civil Code, the first civil chamber responds negatively and begins by recalling that 'the existence of a de facto company between concubines requires contributions, the intention to collaborate on an equal footing to achieve a common project and the intention to participate in the profits or economies as well as the losses that may result from it.' Or, according to the high magistrates, these elements, which 'must be established separately and cannot be deduced from one another', have not been sufficiently characterized by the judges of the fact, because 'the intention to associate in order to achieve a common enterprise cannot be deduced from financial participation in the realization of a real estate project and is distinct from the sharing of interests inherent in concubinage.' It will then be relevant to consider the fact that this ruling recalls the conditions for the creation of de facto companies but also that the characterization of these latter is complex (II). [...]
[...] In reality, the de facto company must be able to be appreciated independently of concubinage and any moral consideration. B/La complex demonstration of the existence of a de facto society Primarily, the difficulty lies in proving the latter, which is particularly the case in this instance. In fact, the society does not presume, but can be proven by all means6, and notably by presumption of the man7. It is notably theaffectio societatis what needs to be proven in reality to demonstrate the existence of a de facto society. [...]
[...] Finally, we must remember that the Court of Cassation in no way closes the way of the de facto company to concubines. These notions are in fact in no way incompatible as long as the community of life is accompanied by a desire "to collaborate on an equal footing in the realization of a common project". We can see in this a refusal to assimilate participation in a real estate project to a joint venture, which would therefore exclude in principle the recognition of de facto real estate companies between concubines. [...]
[...] It differs, however, by its permanent nature. While consent must only be found at the time of the conclusion of the contract, the'affectio societatis must be observed throughout the duration of the group Since the beginning of the current century, judges have been more demanding to recognize the existence of a de facto company. On the one hand, it is necessary that the different classical constitutive elements of a de facto company exist cumulatively.3 On the other hand, concubinage alone is not enough to prove the intention to associate4. [...]
[...] Despite these criticisms, the notion retains some utility, particularly for characterizing a de facto society, uncovering fictitious companies or dissolving a group. In addition, there must be contributions, which are the goods put at the disposal of the other to enable the partners to achieve their project, they can be considered as contributions in kind or in cash (joint account, goods of concubines combined). But it will be especially the work provided, the provision of knowledge, of techniques that will constitute contributions in industry. [...]
