The engagement letter of a contributions auditor (commissaire aux apports) is liable to be annulled where that professional has already carried out, before being appointed, an accountancy engagement (mission d'expertise-comptable) for the company whose shares are contributed. That incompatibility stems from the requirement of independence. Direct consequence: the clause shortening the limitation period (prescription) inserted in that engagement letter disappears with it, and the statutory liability regime applies again.
Key points
- The role of contributions auditor is incompatible with any activity or any act liable to impair their independence towards a party to the contribution transaction.
- A professional who has carried out the accountancy work of the company whose shares are contributed cannot review the value of those same shares.
- The sanction is not limited to the resolutions passed on the basis of the report: the engagement letter itself is void.
- The nullity of the engagement letter removes the clause that reduced to one year the time limit for bringing a claim against the professional.
When the engagement of the contributions auditor becomes incompatible
A professional cannot assess the value of shares whose accounts their own firm keeps. The commercial chamber of the Cour de cassation (France's highest civil court) so holds in dismissing the appeal (Com., 28 May 2026, No. 25-13.211): an engagement letter signed in breach of the incompatibilities applicable to a contributions auditor is liable to be annulled.
An accountancy firm provided the accountancy services of a company. Its executive, a chartered accountant and statutory auditor, accepted on 9 November 2017 an engagement as contributions auditor concerning a capital increase in another company, carried out by way of a contribution in kind of the shares in the first. Four days later, they delivered a report concluding that the amount contemplated for the contribution was not overvalued. The extraordinary general meeting of the recipient company approved the transaction, and the capital was increased.
The company receiving the contribution then brought proceedings against the professional and their firm seeking compensation, complaining of the irregularity of the accounts used to value the shares. The professional relied on the one-year limitation period stipulated in the engagement letter; the company then sought the annulment of that letter. The court of appeal (CA Toulouse, 28 January 2025, No. 22/02321) declared the engagement letter void, held the claims admissible and ordered a court-ordered expert appraisal (expertise judiciaire).
According to the decision under review, the incompatibility follows from the combined effect of Articles L. 225-149-3, L. 225-147, L. 227-1 and L. 822-11-3, now L. 821-31, of the French Commercial Code, in the following terms (free translation):
the role of contributions auditor is, on pain of nullity of the resolutions passed on the basis of their report, incompatible with any activity or any act liable to impair their independence towards one of the parties to the contribution transaction or towards a person controlling it or controlled by it
Such is the case, the decision states, of a contributions auditor who has, before being appointed, "carried out, on behalf of the company whose shares are contributed, an accountancy engagement for that company". The commercial chamber draws an express consequence from this: "That nullity extends to the engagement letter itself." The contract concluded "in breach of the incompatibilities to which they were subject" is therefore affected.
What are the effects of the nullity of the engagement letter?
The nullity of the engagement letter deprives the professional of the contractual protections they had inserted in it, starting with the shortened limitation period. The calculation was simple: a clause reduced to one year the time limit for bringing a professional liability claim. With the letter annulled, that stipulation loses its basis.
The company receiving the contribution then falls under the statutory regime. The court of appeal rejected the limitation defence by applying the three-year period running from the harmful event or, where that event has been concealed, from its discovery, and set that starting point in 2018. The claim brought on 13 November 2020 was therefore held admissible. The date of the writ of summons (assignation) matters here because, together with the applicable limitation regime, it determined the admissibility of the claim.
The argument that professional rules are purely disciplinary in nature did not succeed. The appeal to the Cour de cassation argued that a breach of ethical rules does not, in itself, entail the nullity of contracts concluded in breach of their provisions. The commercial chamber does not reason on ethics alone: it bases the incompatibility on provisions of the French Commercial Code, Article L. 227-1 of which makes the rules on the appointment of the contributions auditor applicable to simplified joint-stock companies.
What the decision confirms and leaves open
The contribution of the decision lies in extending the nullity to the engagement contract, beyond the corporate resolutions. The incompatibility of the contributions auditor was already sanctioned by the nullity of the resolutions passed on the basis of their report. The decision of 28 May 2026 adds the nullity of the engagement letter, and expressly characterises the earlier accountancy engagement for the contributing company as a case of impaired independence.
For its part, the court of appeal held that this nullity is a matter of public policy, that it cannot be cured and that the parties cannot waive it. It inferred that it was irrelevant whether the recipient company knew, at the time of the appointment, that the professional headed the accountancy firm of the contributing company. The commercial chamber did not uphold the criticism directed against the nullity.
The merits of the dispute remain untouched. The decision under review determines neither the actual value of the shares contributed, nor the breaches alleged against the professional and their firm: a court-ordered expert appraisal has been ordered and the case continues before the lower court judges. Nor does the decision rule on the fate of the capital increase approved in 2017.
Which independence checks should be documented in advance?
Appointing a contributions auditor requires verifying, before signature, the absence of any link with the contributing company and with the recipient company. The sensitive point, which the court of appeal describes as self-review, is the review of the value of contributions established on the basis of accounts that one has produced oneself. The check concerns the professional appointed, but also the firm they head.
For the recipient company, there is a twofold issue. An irregular appointment weakens the resolutions adopted on the basis of the report; it also destroys the contractual protection the professional believed they had secured. A company that discovers an overvaluation late is therefore not necessarily met with the shortened limitation period stipulated in the engagement letter.
For the professional, the reflex is symmetrical. Accepting a contributions auditor engagement when their firm has prepared the accounts of the contributed company exposes them to the nullity of their own contract, and the informed consent of the other contracting party changes nothing, on the analysis adopted by the court of appeal. The independence statement deserves to be formalised and kept.
Points to secure in the engagement letter
Before any appointment, the list of the earlier engagements of the professional and of their firm for the two companies concerned deserves to be drawn up and dated. The engagement letter is better for containing an explicit independence statement addressing the absence of any self-review situation. Clauses shortening the limitation period are not a reliable shelter: their fate follows that of the contract that carries them. Finally, the company receiving the contribution has an interest in keeping the engagement letter, the report and the accounts provided, since those documents determine both the assessment of independence and the starting point of the time limit for bringing a claim.
Frequently Asked Questions
Can the firm that keeps a company's accounts value that company's shares contributed to another company?
No. Under the decision of 28 May 2026, a professional who, before being appointed, carried out an accountancy engagement for the company whose shares are contributed is incompatible with the role of contributions auditor. The incompatibility covers any activity liable to impair independence towards a party to the transaction. It also applies where the accountancy work was performed by the firm that the professional heads.
Is a clause setting a one-year time limit for suing the contributions auditor still enforceable?
No, once the engagement letter containing it is annulled for incompatibility of the contributions auditor: the clause loses its contractual basis. In the case decided on 28 May 2026, the court of appeal then applied the statutory regime, namely three years from the harmful event or, if that event was concealed, from its discovery, and held the claim admissible. The merits of the dispute remained to be decided.
Does the recipient company lose its claim if it knew of the professional's links with the contributing company?
The court of appeal held that such knowledge was irrelevant: the nullity attached to the contributions auditor's lack of independence is a matter of public policy, cannot be cured and cannot be waived by the parties. The commercial chamber did not uphold the criticism directed against that nullity when it dismissed the appeal on 28 May 2026. Informed acceptance therefore does not cover the irregularity on this analysis.
How should the independence of a professional be documented before a review engagement is entrusted?
The method is to list, in writing and before the appointment, every service already provided by the professional and by their firm to the entities involved in the transaction. A dated independence statement, annexed to the contract, evidences that check. The most sensitive point remains self-review: no one can objectively assess material they have produced themselves. Keeping these documents makes later proof easier, whichever way the dispute goes.
What happens to the clauses of a services contract when that contract is annulled?
In principle, the annulment of a contract deprives its provisions of any basis, including those limiting remedies or the time available to bring a claim. A protective clause therefore has no autonomous life: it falls with the instrument that carries it. This mechanism means that a defence strategy should never rest on the drafting of a clause alone, without first checking the validity of the undertaking itself.