In international law

A takeover of a company is different from a merger. While a merger requires a large number of formalities, some of them very costly, and results in the disappearance of the absorbed company, a takeover, on the other hand, simply involves the direct or indirect acquisition of a sufficient number of shares to run the company. If control is acquired, the two companies remain separate.


A takeover may present risks for the company and its employees (restructuring, job cuts, abandonment of activities), but also for minority shareholders (loss of influence, fall in the value of their shares).


obliged to
a particular form?



In principle, the transfer of control is not subject to any special rules and must comply with the general rules governing sales (prior negotiations, letter of intent, talks, prior studies, drafting of partial agreements, assumption of costs, risk of improper termination of negotiations, consideration of the existence of any pre-emption rights); verification that there are no defects of consent, that the parties have the capacity to act (spouses, PACS partners, joint ownership), the purpose of the sale, the sale price (expression, determination, amount, indexation), specific conditions (suspensive, resolutory); etc.

However, as these disposals can have a significant impact on the economic fabric, the public authorities are tending to regulate them through ‘anti-abuse’ measures.


Certain administrative authorisations must be obtained, particularly in the case of a takeover involving a business merger or the transfer of a business from the public to the private sector, the sale to a non-resident of a business operating in a ‘sensitive’ sector (arms, electronics, scientific research), or the sale of a credit institution or insurance company.


It is also important to check the seller's undertakings (surety, non-competition clause, liabilities guarantee) and those of the buyer, and to ensure that minority shareholders and employees are protected, etc.


In companies whose shares are admitted to trading on a regulated market, shareholder protection is ensured by the rules applicable to takeover bids.

What is the advantage of transferring control by notarial deed?


The notary will provide guarantees for the transaction, particularly with regard to the origin of ownership of the shares, as he has specific experience and expertise in the rules governing the transfer of assets.

He will check the capacity and powers of the parties, as here too he has expert knowledge. In the case of spouses, he will check whether the securities being transferred are joint property or private property. He will remind the transferor that spouses cannot, one without the other, alienate or encumber with real rights non-negotiable company rights. They may not, without their spouse, receive the capital arising from such transactions (C. civ., art. 1424). He will remind the purchaser that a spouse may not use joint property to make a contribution to a company or acquire non-negotiable company shares without his or her spouse having been informed and without this being justified in the deed (C. civ., art. 1832-2). In the case of spouses with joint property, it should be noted that if own funds are used, a declaration of reinvestment must be included in the deed of acquisition (C. civ., art. 1434). For PACS partners, he will recall the general principles governing PACS (presumption of joint ownership of half of the property, unless otherwise stipulated for PACS entered into before 1 January 2007; regime of separation of property for PACS entered into after that date, unless the joint ownership regime is opted for).

The notary will also advise on the transfer of undivided shares, dismembered shares or shares belonging to a minor who has not been emancipated.


He will check that the consent is free of defects, and whether or not there is an approval clause.


If the price is delayed, the notary will issue an enforceable copy of the deed of transfer.

If the company is predominantly property-based, the parties will benefit from a full legal audit of the situation of the buildings, as the notary has genuine expertise in this area. He will carry out all the necessary procedures, just as he would for the sale of the buildings themselves.


He will take steps to ensure that the transfer of shares can be relied on as against third parties (when the transfer deed is notarised, publication in the Trade and Companies Register is carried out by filing two authenticated copies in the appendix to the Trade and Companies Register; if these formalities are not carried out, the notary will be held liable). The involvement of the company's manager in the share transfer deed will make it possible to give a certain date to the opposability by avoiding service by bailiff or filing at the registered office.


By signing a single original document, on paper or electronically, the notarial form will avoid the tedious process of signing multiple originals that cannot be kept.

In addition to the guarantee of assets, the notary will draw up a guarantee of liabilities to prevent the possible appearance of additional liabilities due and arising prior to the transfer.


He will check that the transaction complies with Tracfin obligations.


The notarial deed will provide a guarantee by virtue of its intrinsic characteristics (date certain, probative value, enforceability).


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