1. The register of partners - Definition and scope of application
A register of associates is a document in which all the information relating to the transactions carried out by the partners is listed in chronological order. Each partner has his own sheet, which allows him to obtain a clear picture of all the legal transactions (acquisitions, transfers and pledges) that he has carried out.
Only legal persons with partners, such as civil companies, limited liability companies, partnerships or simple partnerships, may be required, legally and/or by statute, to establish such a register.
Indeed, this legal document results mainly from statutory freedom. Although its maintenance is covered by Decree No. 78-704 of 3 July 1978 and applicable only to civil companies, all legal persons with partners are in a position to stipulate the establishment of such a register in their statutes.
2. The register of partners - Legal framework
2.1. Bonds
2.1.1. For civil societies
Article 51 of Decree No. 78-704 of 3 July 1978 provides, for civil companies, that: “When a register of partners is provided for by the articles of association, it is kept at the company's head office and consists of the compilation, in the chronological order in which they are drawn up, of identical sheets used on one side only.
Each of these slips is reserved for a holder of shares because of their ownership or to several holders because of their joint ownership, their bare ownership or their usufruct on these shares [...].
This register is mandatory when the articles of association stipulate that the transfer of shares may be made enforceable against the company by transfer in its registers. ”
The register of partners is mandatory in two cases :
- When the statutes of civil society expressly stipulate that a register of partners must be kept;
- When the statutes of civil society stipulate that transfers of shares are made enforceable against the company by transfer in its registers.
In the absence of a statutory provision, no legal or regulatory provision provides for the obligation to keep a register of partners.
2.1.2. For limited liability companies, general partnerships and limited partnerships
For all other companies composed of partners (limited liability companies, general partnerships, limited partnerships), only the articles of association can make it mandatory to set up a register of partners. No legal or regulatory provision provides for the maintenance of such a register.
SYNTHESIS:
In short, whether in the field of civil society, limited liability, in a collective name or in simple partnership, only the statutes may require the keeping of a register of partners.
2.2. Mentions
Article 51 of the aforesaid decree provides for the entries that must be entered on each sheet of the register of partners. The list set out by the legislator is not exhaustive and it is therefore possible for the authors of the statutes to add any other mention deemed useful.
The terms listed in section 51 may be classified as follows:
- Information to be entered for any type of transaction: the nominal value of the shares and the date of the transaction (pledge, transfer, donation, subscription...);
- Information to be transcribed in case of transfer of shares : the identity of the transferor (s) and the assignee (s) (names, first names and addresses);
- Information to be transcribed in case of pledge : the identity of the debtor, of the secured creditor (s), the number of shares pledged and the amount of the guaranteed sum;
- Information to be transcribed when an organ of the company must give its approval prior to an operation (pledge, transfer, donation, subscription): the date of the approval and the body that granted it.
For example, when it comes to the sale of shares in a civil company, the articles of association may condition such transfer to the approval of the partners or the manager. In this case, the register of partners must include both the date of approval and the body that granted it (extraordinary general meeting, manager, etc.).
2.3. Conservation
In terms of retention period, no legal provision is expressly aimed at the register of partners, so the common law period applies. Article 2224 of the Civil Code states that:”Les Personal or transferable shares are subject to a limitation period of five years starting from the day on which the owner of a right knew or should have known the facts enabling him to exercise it”. However, it is advisable to keep this type of document beyond the legal deadline. Indeed, some actions such as real estate actions or even personal injury claims have longer limitation periods (30 years or 10 years). Also, keeping the register of partners for more than 5 years will preserve additional proof of the veracity of the contested transaction.
2.4. Interests
The register of partners corroborates the veracity of various acts that it transcribes. For example, it is wise to keep both the private document attesting to a transfer of shares and the register of partners, which contains the transcript of such an operation. Indeed, keeping such a register is crucial for a legal person because it makes it possible to obtain a legal document with evidentiary value.
2.5. Penalties
As indicated above, the establishment of such a register is a matter of statutory freedom. It is therefore appropriate to question the existence of sanctions in the event of a statutory violation.
First of all, article 1840 of the Civil Code provides for the civil liability of managers who do not comply with statutory provisions. In other words, if the manager must keep a register of partners because the articles of association require it, he is civilly responsible for a breach of this statutory provision.
Also, the articles of association may expressly provide for sanctions in case of failure to establish the register of partners.
2.6. Dematerialization
Nothing in the decree of 3 July 1978 provides for the dematerialization of the register of partners. However, as its maintenance is made mandatory by the statutes, they can also stipulate that it can or must be held in a dematerialized manner. Indeed, since the entry into force of Decree No. 2019-1118 of October 31, 2019, the dematerialization of registers (meetings, accountants, etc.) has proved to be very interesting for legal persons. It saves space and improves the security of the data contained in the various registers.
For example, in terms of a register of movements of securities, dematerializing such a register makes it possible to ensure its long-term, secure and confidential preservation. Indeed, the register will not be altered by the effect of time, or by any incident, and will only be accessible by authorized persons.
In short, in terms of the register of partners, statutory freedom prevails, both for civil companies and for limited liability companies, in general partnerships and in limited partnership.
3. The register of partners - Conclusion
The establishment of a register of partners is possible for all companies composed of partners (civil companies, limited liability companies, general partnerships, limited partnerships).
In the case of civil companies, Decree No. 78-704 of 3 July 1978 provides that a register of partners is mandatory:
- If the company's articles of association so stipulate (article 51 first paragraph);
- If the articles of association provide that a transfer of shares may be made enforceable against the company by transfer in its records (article 51 last paragraph).
With regard to limited liability companies, partnerships and simple partnerships, no legal or regulatory provisions provide for the keeping of a register of partners. However, statutory freedom allows bylaw writers to make it mandatory. In this case, the company and its bodies will have the obligation to establish it.
The content of the register of partners makes it possible both to obtain information relating to the partners (identity of the transferor, assignee, debtor...), to the transactions carried out by the partner (subscription, contribution, pledge, transfer, donation...), to shares (nominal value, quantity subscribed, quantity subscribed, pledged, transferred...) and to creditors (secured creditor, amount guaranteed by the pledge, date of pledge, etc.), to shares (nominal value, quantity subscribed, quantity subscribed, etc.) and to creditors (secured creditor, amount guaranteed by the pledge, gift...), to shares (nominal value, quantity subscribed, quantity subscribed, etc.) to creditors (secured creditor, amount guaranteed by the pledge, gift...), to shares (nominal value, quantity subscribed, quantity subscribed, etc.)...) but also to rely on a legal document with evidentiary value corroborating the various transactions it relates.
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