Two rulings from autumn 2024 frame what happens when a company obstructs the expert appointed to value the shares of a departing partner under article 1843-4 of the Civil Code (the provision under which a court-appointed expert sets the value of shares in the absence of agreement). In the first, a resigning shareholder of a simplified joint-stock company refuses the price set by the general meeting, obtains a 1843-4 expert, and the company refuses to disclose its accounts for 2014 to 2021: the commercial chamber, on 27 November 2024, accepts that the summary judge orders that disclosure, the refusal being a manifestly unlawful disturbance. In the second, a withdrawing partner of a property company obtains an expert, and the company refuses a visit of its building: the second civil chamber, on 3 October 2024, holds that the ordinary summary judge has no power to authorise the expert to enter the flats, because difficulties in executing an investigative measure fall to the judge who ordered it or the judge supervising it. For the valuer, these two rulings say whom to turn to when the assignment stalls, and how to document the obstruction.
The facts
In the first case, the capital of a simplified joint-stock company is held 57 per cent and 43 per cent by two shareholders. The articles provide that a shareholder who ceases his functions loses his shareholder rights and that the price of his shares is determined under internal rules, which entrust the setting of the price to a collective decision, the dissenting shareholder being able to look for a buyer within three months. The minority shareholder resigns in September 2015; the meeting sets the price of his shares at 73,253.94 euros. He refuses, obtains in 2016 the appointment of a 1843-4 expert, replaced in 2018. The expert asks for the annual accounts and management reports for 2014 to 2021; the company and the majority shareholder refuse. The shareholder sues them in summary proceedings, under article 873 of the Code of Civil Procedure, to obtain production of the documents. The Paris court of appeal, on 21 April 2023, orders it.
In the second, a partner of a property company authorised to withdraw obtains, by order of the president of the court in 2018, the appointment of a 1843-4 expert to value his shares. The company refuses the expert a visit of the building it holds. The partner applies to the summary judge, under articles 834 to 836 of the Code of Civil Procedure, to have the expert, his assistant, the parties and their lawyers authorised to enter all the flats to estimate their value. The judge grants it, but the Aix-en-Provence court of appeal, on 3 March 2022, reverses: that is not within the powers of the summary judge.
The decision
The commercial chamber dismissed the company’s appeal (Cass. com., 27 November 2024, no. 23-17.536, reported). “It follows from the combination of article 873 of the Code of Civil Procedure and article 1843-4 of the Civil Code that, where the articles of association or any agreement binding the parties do not set rules for valuing the shares but only provide for the procedure, a party may be ordered, in summary proceedings, to disclose any document the expert instructed to determine the value of those shares indicates as necessary to the performance of his assignment.” The company’s opposition, which had blocked for seven years an assignment ordered by an irrevocable decision, constitutes a manifestly unlawful disturbance.
The second civil chamber dismissed the withdrawing partner’s appeal (Cass. 2e civ., 3 October 2024, no. 22-15.788, reported). Under article 167 of the Code of Civil Procedure, “difficulties encountered in the execution of an investigative measure are resolved, at the request of the parties, on the initiative of the appointed technician, or of the court’s own motion, either by the judge conducting it or by the judge supervising its execution”. Seised of a difficulty in executing the order appointing the expert, the court of appeal rightly held that it was not within the powers of the ordinary summary judge to authorise the expert to enter the flats of the company’s building.
What this changes for valuation
Two routes depending on the nature of the obstacle. A refusal to disclose accounts is a manifestly unlawful disturbance the summary judge can end, provided the expert has indicated the documents as necessary to his assignment. A visit of a building, by contrast, is a difficulty in executing the measure: it is resolved before the judge who appointed the expert, or before the supervising judge, on application by the parties or by the expert himself. The expert who meets an obstacle therefore characterises it before advising on the route: missing documents, summary proceedings; refused access, the judge of the measure.
The expert himself names what he needs. The ruling of 27 November 2024 makes the injunction depend on what the expert “indicates as necessary to the performance of his assignment”. The list of documents, annual accounts, management reports, tax returns, leases, previous valuations, earlier deeds of transfer, must appear in a dated note to the parties, with the reasons for each request. That note is what the summary judge will examine, and its precision decides the outcome. The guide on a partner’s withdrawal describes how such an assignment unfolds.
Where the articles set a method, the injunction is narrower. The Court reserves the case where the articles “do not set rules for valuing the shares but only provide for the procedure”. Here, the internal rules entrusted the setting of the price to the meeting without indicating a method: the expert therefore had to value freely, and any document useful to a full valuation was necessary. Where the articles impose a formula, for instance a multiple of earnings or net book assets, the expert applies that formula, as recalled by the article on the expert and the two readings of the articles, and the necessary documents are limited to those the formula requires.
Visiting a property company’s building is no luxury. Valuing the shares of a property company means first valuing its buildings; the expert who cannot visit works from plans, photographs and references, with a margin of uncertainty he must flag. The ruling of 3 October 2024 does not deprive the expert of access: it points to the right door, the judge supervising the measure, seised by a simple request from the expert under article 167. An expert who documents the refusal and applies to that judge within the following weeks avoids years of deadlock.
Seven years of deadlock, and a valuation at what date. In the first case, the price offered in 2015 was still disputed in 2023, the expert asking for accounts up to 2021. The value of shares under article 1843-4 is set at the date closest to the repayment or transfer, which explains why recent accounts are necessary; but delay attributable to a party may also be taken into account by the trial judge. In that case the report gives the value at the date of the assignment and recalls, for the record, that at the date of departure, with the gap between the two. The article on partner withdrawal and the new expert deals with a related case.
What the valuer takes from it
- A refusal to disclose the documents the 1843-4 expert indicates as necessary is a manifestly unlawful disturbance; the summary judge may order their production.
- Difficulties in executing the assignment, such as a refused visit of a building, fall to the judge who ordered the measure or the judge supervising it, not to the ordinary summary judge.
- The expert lists in writing the documents and access he needs, with reasons, from the start of the assignment.
- Where the articles set a method, the expert applies it and his requests are limited to what it requires.
- The value is set at the date closest to the transfer or repayment; the report flags the effect of delay.
Further reading
The Business and company shares page describes the assignment, its timescale and its fee. The guide A partner leaves: how to value their shares and the glossary entries article 1843-4, tiers évaluateur and sapiteur complement this article. On the same theme: Article 1843-4 Civil Code: the expert may give two valuations and Partner withdrawal: a new 1843-4 expert after an annulled report. The decisions are available on Légifrance: no. 23-17.536 and no. 22-15.788.
What next
Shares to value under article 1843-4, and a company that refuses the accounts or a visit of its property?
I state from the outset of the assignment the documents and access I need, record refusals in my notes to the parties and, if need be, value on the available evidence while flagging its limits, so the competent judge can remove the obstacle.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
