Manager or partners must not jeopardize their SCI

That the partners agree and that the act complies with the statutes does not change the prohibition, specifies the Court of Cassation.

The problem submitted to the Court concerned a family SCI. One of the members with a large professional debt had decided to give a building that belonged to the SCI as payment guarantee to his creditor. He had granted his creditor a mortgage on the SCI building.

But difficulties subsequently arose between partners and a protester obtained the cancellation of this decision. The mortgaged building risks being sold, observed the judges, which jeopardizes the very existence of the SCI. In this case, they said, this constitution of guarantee is null because contrary to the interest of the SCI.

In addition, the risk of seizure which would weigh on the mortgaged building would also jeopardize the rights of the SCI's creditors who could then see their repayment guarantee disappear, the Court of Appeal had previously observed.

In conclusion, not only would the SCI not derive any benefit from the operation, but it would also see its existence jeopardized. Assembly is therefore not permitted. Unless the SCI has enough assets to survive if a mortgaged asset were to be seized.

(Cass. Com, 6.1.2021, X 19-15.299).