Cass. civ. 3rd, 6 June 2024, no. 23-10.526

Must the creditor of an SCI sue the company before the partners have sold their shares in order to be able to sue the partners for repayment?

This was the question addressed by the Third Civil Chamber of the Court of Cassation in a ruling dated 06 June 2024 (no. 23-10.526).

In this case, an SCI had taken out a loan with a bank, repayable in 240 instalments.

A few years after the loan was granted, the partners sold all of their shares.

Following the sale, the bank sued the selling partners for repayment of the loan.

The Court of Appeal ruled that the bank’s claim was inadmissible, since it considered that the bank had not satisfied the condition that it had previously pursued the company in vain before the partners sold their shares.

The Court of Cassation overturned this decision, pointing out that it is indeed a prerequisite for legal action that the SCI be sued in vain.

On the other hand, it ruled that this prerequisite must only be exercised before the partners are sued, and not before they have sold their shares.

In other words, this ruling reiterates the principle set out in article 1837 of the Civil Code, according to which the partners of a non-trading property company (SCI) are indefinitely liable for the company’s debts, in proportion to their share in the share capital.

This means that even if their shares are sold, the partners remain liable for the company’s debts.

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