Extract
[...] But its scope remains uncertain. Jurisprudential uncertainty that is not without posing problems in light of the requirements of legal security and equality of citizens before the law. However, in a second phase, consolidation of the solution with several judgments important Venus to specify the reasons why these stipulations escaped the prohibition of article 1844-1 of the civil code (v. for example, in the matter of portage: Com May 1994; and of capital investment operations: Com November 2004; Com September 2005). [...]
[...] Court of Cassation, Commercial Chamber May 1986, n° 85-16.716 - Can a promise to buy back social rights accompanied by a minimum price be lawful even if it frees the beneficiary from any contribution to social losses? Introduction : Based on the assessment of the relevance of legal rules in light of their economic consequences, the economic analysis of law is generally considered to be insufficiently taken into account by French courts. Yet, rendered on 20 May 1986 by the Commercial Chamber of the Court of Cassation, the judgment Bowater, which consecrates the licitness of principle of promises of transfer of social rights accompanied by a minimum price, seems perfectly to answer this requirement. [...]
[...] Consequence: the beneficiary of the promise is assured of selling at the agreed price their shares, even if the company makes losses; he is therefore protected from any social risk; the floor price acts there in reality as a financial guarantee. If these observations seemed to condemn these clauses in the light of the principle of prohibition of clauses of a leonine nature, such was not the solution adopted by the Court of cassation. Recall of the terms of the judgment: ' the Court of Appeal did not have to verify whether the fixing, at the time of the promise, of a minimum price, had the effect of releasing the seller from any contribution to social losses, provided that it found that the disputed contract constituted a transfer ». [...]
[...] The criterion of unlawfulness is therefore based on the object of these agreements, as assessed in relation to the concept of social pact. Social pact? The expression irresistibly evokes the notion ofaffectio societatis, which can be defined as the will of the associates to collaborate on an equal footing in the pursuit of their interest. Le raisonnement replaces the principle of prohibition of clauses leonines at the heart of the requirements drawn from the protection of equality between associates. Applying article 1844-1 of the civil code to promises of redemption would, in reality, amount to distorting this provision, which was not written for this case, but for hypotheses in which the subtraction of the associate from the profits or losses constituted the 'primary' objective of the stipulants (example of a statutory clause depriving an associate of their right to profit). [...]
[...] Or, as the Court of Cassation specifies, the main object of this convention was to ensure the transmission of social rights. II. The justification of the licitness by reference to the object of the promises of cession Justified in light of its objectA.), the solution of the judgment Bowater has been the subject of useful judicial clarifications since,B.). A. A solution based on the need to ensure the transmission of social rights Recall of the terms of the judgment: ' it could not be otherwise when it came to a convention, even between associates, whose object was nothing other than, except for fraud, to ensure, at a price freely agreed upon, the transmission of social rights ». [...]
