The Basic Principle: Legal Personality Is a Prerequisite

A French company acquires legal personality — and with it the capacity to enter into contracts, including a French commercial lease — only upon registration in the registre du commerce et des sociétés (RCS). This applies to all commercial companies (SNC, SCS, SARL, SA, SCA, SAS) and to civil companies alike (C. com. Art. L 210-6; C. civ. Art. 1842). Before registration, the company does not legally exist, and any act purportedly concluded in its name binds not the company but the individuals who signed.

A lease signed directly in the name of a company that is not yet registered is null and void by absolute nullity — there is no cure by subsequent ratification. The only path is a fresh agreement once the company is registered. Once registered, the company's capacity to take or grant a French commercial lease is broad but constrained by two sets of rules: the rules on objet social (corporate objects) and the rules on representative authority.

Leases Signed Before Registration: The Pre-Incorporation Regime

International investors setting up a French operating entity often need to secure premises before the company is formally registered. A founder may sign a lease on behalf of a société en formation and intend that the company, once registered, takes over the lease as its own. French law provides a specific mechanism for this: the reprise des engagements (take-up of commitments) regime under Articles L 210-6 of the Code de commerce and 1843 of the Civil Code.

The Foundational Rule: Personal Liability Until Take-Up

The starting position is strict: persons who act on behalf of a company in formation are personally liable, jointly and severally without limit (for commercial companies), for any pre-incorporation lease they sign. This liability persists until the company, once duly incorporated and registered, formally takes up (reprend) the commitment. Only upon valid take-up does the personal liability of the founder cease and the lease become, retroactively, an obligation of the company from the date it was originally concluded.

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The Critical Risk: No Automatic Take-Up

A clause in the lease stating that "the company, once registered, will automatically take over this lease" is ineffective unless one of the three statutory take-up procedures has been followed (Cass. 3e civ. 15-10-2015; Cass. 3e civ. 23-5-2019). Even if all founders unanimously agreed on the commitment, there is no valid take-up without following the prescribed procedure (Cass. com. 6-12-2005). The founder remains personally bound.

The Three Statutory Take-Up Procedures

1
Pre-Signature Annex: Automatic Take-Up at Registration
Where the lease is signed before the statuts are executed, it may be taken up automatically at registration if a statement (état) identifying the commitment is presented to the founders before the statuts are signed and is annexed to them (C. com. Art. R 210-5 and R 210-6 for SARLs and sociétés par actions; Décret 78-704 Art. 6 for civil companies, SNCs and SCSs). The lease must be expressly and individually identified — a general clause in the statuts is not sufficient (Cass. com. 13-3-2001). Mentioning the lease directly in the body of the statuts is, however, sufficient (Cass. 3e civ. 13-7-2011).
2
Mandated Founder: Take-Up at Registration
Where the associates authorise one or more of their number, in the statuts or a separate instrument, to conclude specific, determined commitments on behalf of the company in formation, those commitments are automatically taken up upon registration. The mandate must identify the engagements with sufficient precision; a general mandate is not sufficient. For SNCs, SCSs, civil companies and SARLs, the mandate may be given to any associate or non-associate manager. For sociétés par actions without public offering, only a shareholder may receive the mandate.
3
Post-Registration Decision: Voluntary Take-Up by Associates
After registration, the company may take up the lease by a collective decision of the associates (not merely the directors) passed by majority. For a single-member EURL, the sole associate may decide alone, but the act must be recorded in writing (Cass. com. 31-5-2005). There is no implied or tacit take-up: subsequent use of the premises or conduct in litigation relating to the lease does not constitute take-up (Cass. com. 20-1-1987; Cass. 3e civ. 30-3-2023).

Consequences of Take-Up: Retroactivity and Release

When a company validly takes up a pre-incorporation lease, the consequences are retroactive: the lease is deemed to have been concluded by the company from its original date (C. com. Art. L 210-6). The founders or mandataries who signed are released from all personal liability, unless they expressly assumed a personal guarantee. The release applies to all who participated, even if the mandate was given to only one of them (Cass. com. 13-12-2005). The retroactive effect also means the company can rely on the lease as having run from its original date for all purposes of the commercial lease statute — including the nine-year period and renewal rights.

When Take-Up Fails: The Founder Remains Bound

If the company does not take up the lease, or if the take-up procedure is not validly followed, the act remains the personal obligation of those who signed. The company has no right to enforce or rely on the lease (Cass. 3e civ. 19-10-2022). The founder may seek reimbursement from the company on the basis of gestion d'affaires if the lease benefited the company — but not on the basis of unjust enrichment.

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Drafting Counsel: The "For the Account Of" Mention

Despite a 2023 evolution in case law relaxing the strict requirement for an express mention, best practice remains to include in the body of the pre-incorporation lease an explicit statement that it is concluded "au nom" or "pour le compte" of the company in formation, with the company's future corporate name and anticipated registered office. Relying on surrounding circumstances to establish common intention (now permitted by Cass. com. 29-11-2023; Cass. 3e civ. 17-10-2024) exposes the take-up to challenge. The express mention costs nothing and eliminates the risk.

Leases Signed by a Registered Company: Representative Authority

Once a company is registered, the question shifts from capacity to authority: who is entitled to bind the company by signing a French commercial lease on its behalf? A lease can only be validly concluded in the company's name by its représentant légal — the person vested with legal representative authority — or by a person holding a valid delegation of powers. A lease signed by someone who lacks authority is null and void. This nullity is relative: only the company, not the counterparty, may invoke it (Cass. 1e civ. 12-11-2015).

SARL, SA, SCA, SAS
The legal representative may bind the company by any act including acts outside the corporate objects, unless the counterparty knew or could not have been unaware of the ultra vires nature of the act (C. com. Art. L 223-18 al. 5, L 225-56, L 227-6). Publication of the statuts alone is insufficient to establish the counterparty's knowledge.
SNC, SCS, Société Civile
The gérant's authority is limited to acts falling within the corporate objects (C. com. Art. L 221-5; C. civ. Art. 1849). A lease outside the corporate objects may be annulled at the company's initiative as a matter of public order. Counterparties must verify the scope of the corporate objects carefully before contracting with these entities.
GIE & Associations
A GIE has full capacity once registered; limitations on the representative's powers are unenforceable against third parties (C. com. Art. L 251-11 al. 2). A declared association has capacity to lease premises that fall within or facilitate its objects. An undeclared association has no legal personality and cannot conclude a commercial lease at all.

The Corporate Objects Limit in Practice

For SARL, SA, and SAS, the practical importance of the objet social limit is largely eroded: the representative's power extends to acts outside the corporate objects, and a counterparty who relied on the appearance of authority is protected. For SNCs and civil companies, genuine vigilance is required: a lease by the gérant that does not relate to the corporate objects can be voided at the company's initiative. Landlords should verify that the prospective tenant SNC or civil company has corporate objects that encompass occupying commercial premises for the proposed activity; tenants should ensure the lease purpose is within the company's stated objects — or amend them before signing.

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Ultra Vires and Object Modification

A French commercial lease that effectively modifies the corporate objects — rather than merely falling outside them — requires prior amendment of the statuts by the associates (with the exception of SAS, where the statuts may reserve this power to the president). A director who concludes such a lease without prior amendment commits an act of dépassement de pouvoirs; the act is null, though the nullity cannot be invoked by the counterparty if the company subsequently ratifies it.

Leases Signed During Insolvency Proceedings

Where a company is subject to French insolvency proceedings, its capacity to conclude a French commercial lease as landlord or tenant is affected by the nature and stage of those proceedings. This regularly catches international counterparties in transactions that prove unenforceable.

The Suspect Period (Période Suspecte)

In the period between the company's date of cessation des paiements (deemed insolvency) and the opening of formal insolvency proceedings, the company retains full legal capacity. However, a commercial lease concluded during this period is subject to retrospective nullity if, once the company enters redressement or liquidation judiciaire, it is found that the tenant's obligations under the lease materially exceeded those of the landlord at the date of signature (C. com. Art. L 632-1, 1-2°). A lease on normal market terms is not at risk; an above-market-rent lease taken during financial distress is.

Sauvegarde and Redressement Judiciaire

During sauvegarde or redressement judiciaire, the debtor company's ability to conclude a commercial lease depends on the administrateur judiciaire's mandate. If no administrateur has been appointed, the debtor continues to manage the business alone and may conclude leases subject to the court commissioner's authorisation for acts of disposition outside ordinary management. Where an administrateur has been appointed with a general management mandate, they may conclude leases only for acts of administration — not acts of disposition. Since granting a commercial lease as landlord is an act of disposition (whereas taking one as tenant is an act of administration), the same company subject to proceedings may freely take a lease but require court authorisation to grant one.

Liquidation Judiciaire

A company in liquidation judiciaire loses the power to manage its own affairs from the date of the liquidation judgment. Only the liquidateur judiciaire has authority to manage assets; any lease concluded by the company's directors after that date without the liquidator's involvement has no binding effect on the insolvency estate.

Signing a French Commercial Lease Through a Company: The Essentials
Legal personality at registration (C. com. Art. L 210-6; C. civ. Art. 1842): capacity to conclude a French commercial lease only from RCS registration. A lease signed in the name of an unregistered company is null and void by absolute nullity — no cure by subsequent ratification.
Pre-incorporation personal liability: a person acting for a société en formation is personally liable, jointly and severally without limit (commercial companies), for any pre-incorporation lease they sign. Liability persists until valid take-up. Automatic take-up clauses in the lease itself are ineffective (Cass. 3e civ. 15-10-2015).
Three statutory take-up procedures: (1) pre-signature annex identifying the lease, annexed to the statuts → automatic take-up at registration; (2) specific mandate given in the statuts or separate instrument → automatic take-up at registration; (3) post-registration collective decision of associates. No implied or tacit take-up (Cass. 3e civ. 30-3-2023). Best practice: include "au nom / pour le compte" express mention in the lease deed.
Valid take-up: retroactivity and release (C. com. Art. L 210-6): releases founders from personal liability retroactively to the original lease date. The company relies on the lease as having run from its original date — including for the nine-year period and renewal rights. Release applies to all who signed, even if mandate was given to only one (Cass. com. 13-12-2005).
SARL, SA, SAS representative authority (C. com. Art. L 223-18 al. 5, L 225-56, L 227-6): the legal representative may bind the company by any act including acts outside corporate objects, unless the counterparty knew of the excess. Publication of the statuts alone does not establish knowledge. Nullity for lack of authority is relative — only the company may invoke it (Cass. 1e civ. 12-11-2015).
SNC, SCS, civil company (C. com. Art. L 221-5; C. civ. Art. 1849): the gérant's authority is limited to acts within the corporate objects. A lease outside those objects is voidable at the company's initiative as a matter of public order. Counterparties must verify the corporate objects carefully before contracting with these entities.
Insolvency (C. com. Art. L 632-1, 1-2°): suspect-period lease on materially imbalanced terms subject to retrospective nullity. During sauvegarde/redressement: taking a lease as tenant = act of administration (generally permissible); granting a lease as landlord = act of disposition (requires court authorisation). During liquidation judiciaire: only the liquidator may manage assets; leases concluded by directors without liquidator's involvement have no binding effect.
Setting Up a French Company to Hold a Commercial Lease?

The interaction between French company law and commercial lease law creates risks at every stage — from pre-incorporation take-up to representative authority to insolvency. Our guides and legal contacts are here to help international investors, founders, and in-house counsel structure French commercial lease transactions correctly.

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This article is for general information and educational purposes only. It does not constitute legal advice and does not create a lawyer-client relationship. Laws and regulations may have changed since publication. Always seek qualified French legal advice before concluding, assigning, or terminating a French commercial lease.