Business law

The notary and the lawyer are complementary. The lawyer is more involved in strategic counsel and litigation, whereas the notary gives deeds an authenticity and an enforceable status (executory force) that private deeds do not have. For the transfer of business assets (fonds de commerce), the sale of company shares or the drafting of a commercial lease, the notarial deed offers superior legal security and immediate enforceability against third parties.

The involvement of a notary is mandatory for deeds relating to real estate (contribution of a property to a company, transfer of shares in a predominantly real-estate SCI) and recommended for complex transactions such as the transfer of business assets, LBOs or mergers. In all cases, the notarial deed is preferable for its legal security.

The notary fees for the transfer of business assets (fonds de commerce) include the registration duties (3 % on the bracket from €23,000 to €200,000 and 5 % beyond), the notary's fees (regulated by scale) and disbursements. The notary provides you with a precise estimate as soon as the engagement begins. These fees are generally shared between the seller (transferor) and the buyer (transferee) according to the parties' agreement.

A notarial commercial lease benefits from enforceable status (executory force), which means that in the event of non-payment, the landlord can instruct a bailiff without going through the court. It also offers better protection in the event of a resale of the premises, as it is published and enforceable against third parties. The notary checks that the lease complies with the commercial lease statute and includes the clauses suited to your situation.

A shareholders' agreement (called a partners' agreement in SARLs and SCIs) is a confidential contract signed between all or some of the partners, in addition to the articles of association, to organise their relations and anticipate sensitive situations. It may provide for pre-emption clauses (priority to buy back the shares), approval clauses, non-transferability, non-competition, tag-along or liquidity clauses. Unlike the articles of association, it is neither published nor filed with the registry and is enforceable only against its signatories. Drafted by a notary, it benefits from maximum legal security and can be made authentic to give it enforceable status (executory force).

The asset and liability warranty (GAP) is a clause inserted into a deed transferring company shares. Through this clause, the seller undertakes to indemnify the buyer in the event of an increase in liabilities or a decrease in assets whose origin predates the sale but which comes to light afterwards (tax reassessment, Urssaf debt, dispute with an employee, unpaid invoice, etc.). It is limited in time (often three years, to cover the period for tax and social-security claims) and capped in amount. It is frequently accompanied by a "warranty of the warranty" (bank guarantee or escrow of part of the price) and is annexed to the memorandum of agreement and then to the deed of sale. Not to be confused with the shareholders' agreement: the GAP protects the buyer during a transfer, while the agreement organises the relations between partners.