Who Can Buy or Sell a Business in France: Minors, Spouses, Companies and Agents

Who can buy or sell a business in France: the capacity questions that undo deals

A French business sale can be perfectly negotiated, perfectly priced, perfectly drafted - and still fall, because the wrong person signed it. The sale of a fonds de commerce is in principle a commercial act for both sides, so each party needs the capacity to perform it; and around that simple rule sit the situations that generate the disputes: a married seller whose spouse never consented, a business owned by a minor or a protected adult, a foreign signatory whose capacity is governed by another country's law, a co-owned business sold by one co-owner alone, an agent whose mandate did not cover the sale.

Each situation has its own authorisation route and its own sanction - nullity, reduction or unenforceability, each with its own clock. This guide takes them in turn, from the deal-maker's angle: what to verify before signature, whose consent to collect, and what can still be saved when the verification was skipped.

Married sellers: both spouses sell the business - and both collect the price

Where the business belongs to the spouses' community, neither can sell it without the other - nor collect the capital arising from the sale (C. civ. Art. 1424). The co-management rule admits no exception: not even the rule giving each spouse sole power over the acts its separate profession requires displaces it. No formality is imposed, the consent need not be given at the signing and can come before or after the deed, but it must exist, and prudent practice takes it in writing, in the deed itself.

The porte-fort trap. Sellers sometimes sign alone, promising that the absent spouse will ratify (promesse de porte-fort). The Cour de cassation's chambers have split on what happens when the spouse then refuses: the first civil chamber has held such promises void, the commercial chamber has upheld them - an unresolved divergence, which means the technique carries litigation risk on its face. A buyer offered a porte-fort instead of a consent should treat it as a red flag, not a convenience.

The sanction. A spouse who sold a common business alone exceeded its powers, and the other can annul the sale (C. civ. Art. 1427). The nullity is relative: only the wronged spouse can invoke it, neither the spouse who signed, nor the buyer, and after death the action passes to the wronged spouse's heirs. The clock: two years from the day the spouse learned of the act, and never more than two years after the community's dissolution - softened by the case law so the spouse always keeps the two years following the act itself, even where the option under a promise was exercised long after the community ended. Ratification by any unequivocal act closes the question for good.

The deadlock exit. Where the consent cannot be had - a spouse durably unable to express a will, inapt to manage the common assets, or managing them in fraud of the couple's interests - the selling spouse can ask the court to transfer the powers over the community to it (C. civ. Art. 1426). Good or bad faith is beside the point: inaptitude alone opens the route.

Minors: who can sell, and who cannot buy, a business for a child

Buying is closed. A non-emancipated minor cannot be a trader or perform isolated commercial acts, and cannot acquire a business even through a legal representative; an acquisition made anyway is voidable for lack of capacity - a relative nullity only the minor's side can invoke, and which the other party can resist only by showing the act was useful to the minor and free of imbalance.

Selling runs through authorisations. A business owned by a minor can be sold, but never by the family alone. Under parental administration, even both parents agreeing cannot sell by private treaty without the judge's authorisation, which fixes the terms and, where relevant, the price (C. civ. Art. 387-1). Under guardianship (tutelle), the guardian sells only with the family council's authorisation, replaceable by the judge's where the business is worth less than €50,000 (C. civ. Arts. 505 and 502), the authorisation again setting the terms, and issued only after an expert measure or the opinions of at least two qualified professionals. Skip the authorisation and the sale concluded in the minor's name is void.

Emancipation changes half the picture. An emancipated minor has an adult's civil capacity (C. civ. Art. 413-6): it can freely sell a business it owns. Trading is the remaining gate: the emancipated minor can carry on commerce only with the judge's authorisation, given at emancipation or afterwards by the president of the judicial court (C. civ. Art. 413-8; C. com. Art. L 121-2). Without it, buying a fonds remains possible in principle, one isolated commercial act, but of little use, since the minor cannot operate what it bought.

Who is selling to you? Check the consents before the deed

Pick the situation on the other side of the table - the check shows which authorisations the closing needs.

Protected adults: who can sell under tutelle, curatelle or judicial safeguard

The baseline: a sound mind. A valid act requires a sound mind (C. civ. Art. 414-1): a sale concluded by a person whose mental faculties were impaired at the moment of the act, illness, infirmity, weakness, alcohol, medication, is voidable, the courts assessing the impairment case by case; two sales of the same assets to different buyers 24 hours apart, by a long-ill and freshly bereaved seller, were both annulled. During the person's life the action is theirs alone; after death, the heirs can pursue an action already begun, or bring one only where the act itself carries the proof of the trouble, the person was under judicial safeguard, or proceedings to open a protection had been launched (Art. 414-2).

Tutelle. The protected adult is represented by the guardian, and the minor's rules apply: sale by private treaty with the family council's authorisation, the judge alone below €50,000, after expert input; and the guardian can never buy a business to operate in the adult's name, even authorised (C. civ. Art. 509). The sanctions come in tiers (Art. 465): an act by the adult after the judgment's publicity is void as of right, no loss required; where the judge lightened the measure to allow assisted sales, annulment requires a loss; where the adult was allowed to act alone, the act is voidable or reducible as under judicial safeguard - and an act by the guardian alone, where an authorisation was needed, is void as of right. Acts made up to two years before the judgment's publicity can be reduced, or annulled on proof of loss, where the adult's inaptitude was notorious or known to the other party (Art. 464). The actions prescribe in five years.

Curatelle. Nothing bars the adult under curatelle from trading - with the curator's assistance for the acts of disposition the activity requires. Buying a fonds takes the curator's assistance (use of capital, C. civ. Art. 468); selling one likewise (Arts. 467 and 505); a curator who refuses can be overridden by the judge's substitute authorisation (Art. 469). An act done without the required assistance is annulled only on proof of loss (Art. 465); an act by the curator alone, where the adult should have signed with assistance, is void as of right.

Judicial safeguard. The person keeps capacity, but the acts remain challengeable - the reduction and rescission regime the tutelle and curatelle rules cross-refer to. In deal terms: a counterpart under any protection regime means one thing - the file must contain the order or authorisation matching the act, before signature.

Foreign buyers and sellers: which law decides who can sell

Capacity follows the person, not the deal. Whether a foreign national can buy or sell a fonds de commerce governed by French law is answered by that person's national law (C. civ. Art. 3): for an English seller, English law says whether an incapacity stands in the way. The rule cuts in both directions - a foreign party cannot borrow French capacity rules it lacks at home, and the French party cannot assume French rules protect it.

The case law adds one shield: a French contractant cannot be required to know every foreign law's incapacities, and the courts refuse to apply the verification duty as strictly against a good-faith French party contracting in France with a foreigner as between French parties. Comfort, not cover: the professional route is documentary - establish the foreign signer's capacity, matrimonial position and authority under their own law before the deed, and recite the findings in it. For foreign buyers, the same logic applies to their own side: the trading-capacity conditions attached to operating in France belong on the closing checklist, not after it.

Co-owned businesses: who can sell a fonds held in indivision

A business inherited by several heirs, or bought jointly, is held in indivision - and selling it is a question of arithmetic and procedure:

• All together, always works. Unanimity signs the sale; so does a special mandate, written, naming the operation and the principals, given by all co-owners to one of them or to a third party. A tacit mandate validates nothing.
• Two-thirds, to pay the debts. Co-owners holding at least two-thirds of the rights can sell the business to pay the indivision's debts and charges - informing the other co-owners, on pain of unenforceability of the decision (C. civ. Art. 815-3).
• Two-thirds, through the court. At the request of holders of two-thirds, the judicial court can authorise the sale (Art. 815-5-1) - unavailable where a co-owner is absent or unable to express a will, or where the ownership is split in usufruct; the sale then binds the non-consenting co-owners provided the intention to sell was formally notified to them.
• One, with the judge's help. A co-owner can be judicially empowered to represent another who cannot express a will (Art. 815-4), or authorised to override a refusal that endangers the common interest (Art. 815-5) - urgency not required; the authorised sale is then opposable to all, though it obliges only those who contracted. Failing everything else, acts done for another co-owner fall under the subsidiary rules of management of another's affairs (Art. 1301).
• The sanction is unenforceability, not nullity. A sale signed without the required consents binds the signing co-owner but is unenforceable against the others for their fraction - invocable throughout the indivision, with the sale's fate ultimately hanging on the partition. The buyer of a fraction has bought a lawsuit.

Someone without the power to sell signed - what happens now?

Pick the defect - the check names the sanction and the clock.

Companies and agents: who can sell for someone else

Where a party is a company, capacity becomes a question of powers: the company signs through its legal representative, and the deed's recitals establish who that is and that the act falls within their authority - with the corporate approvals the company's own rules require attached to the file. Where the buyer is a company still in formation, the deed uses the take-over mechanics standard drafting provides, so the company, once registered, stands in the signer's place.

Where a party signs through an agent, the mandate is read strictly - the indivision rules above are the model: special, written, naming the operation and the principals; tacit authority carries nothing on a sale of this weight. And where a signer offers to answer for someone else's future consent, that is the porte-fort - with the unresolved case-law split described above attached to it. The rule of thumb for the closing table is short: every signature is either the owner's, or backed by a written power that names this sale - anything less is a risk someone is silently accepting.

Frequently Asked Questions

This article is for general information only and states French law as published in the sources available at the date shown above. It does not constitute legal advice. Which authorisation a given sale needs depends on the owner's situation and the documents. Always seek qualified legal advice before signing.