Extract
[...] we will move from a merchant operating within the framework of an individual entrepreneur to exercising under the form of a commercial company) > Consequences : - It will be able to further develop its activity - It will be subject to the remuneration of social managers - This will be the means of starting to organize the succession of the activity or the company - This will also allow for limiting the risks of exploitation The contribution of the business assets to a company falls under commercial practice and law > A partnership contract is a contract by which several people will pool their assets or an activity for a profitable purpose, either to achieve profits or to achieve economies. [...]
[...] The seller's obligations > The first obligation of the seller: to deliver the business assets It must therefore deliver all elements of the business assets as determined by the parties . [...]
[...] Commercial Law - Operations relating to the business assets Introduction : > The two main operations are : - The sale - The rental Section 1 - The sale of the business assets > Highly important and also dangerous economic operation It is sometimes the essential part of the merchant's assets A significant value also for the buyer Therefore, the legislator is attentive and many rules governing him are derogatory from common law: - to protect the seller on credit from the insolvency of the buyer - but also to safeguard the interests of buyers against sellers - and for fiscal interests of the State In contractual matters, to defraud the tax authorities, an agreement is made to sell at a low price of 70,000 (ostensible act) and after 30,000 in black, so a total of 100,000 (against letter) Third parties can rely on the hidden act and denounce) The conditions of the sale of the business assets The underlying conditions > Article 1128 (Are necessary for the validity of a contract: 1° The consent of the parties; 2° Their capacity to contract; 3° A lawful and certain content) and 1582 (determined and determinable price) > For the transfer to be valid, it must carry over the client base > Lease-sales: contract by which a tenant-buyer will pay for a certain period either monthly payments or quarterly payments or semi-annual payments corresponding to the payment of the part of the price and during the lease-sale he will be able to exploit the business assets to verify if this confirms his expectations At the end, the tenant-buyer will be debited from the price So, he loses the sums paid and does not debit himself The lease-sale exists but is very controlled by the tax authorities as it allows to hide a sale on credit To avoid this, the tax administration does not make any difference between the amount of the sale and the amount of dividends paid by the tenant The formal conditions > The article imposes a certain number of conditions to be respected. [...]
[...] The information can be given orally, in writing, during a meeting (they must be informed of the transfer of ownership of the business assets) Advertising the sale of the business assets > The sale of the business assets must be published in the BODACC (official bulletin of civil and commercial announcements) Also applies to the sale of business assets as well as the contribution of business assets to a company, applies to donations and auctions > The publication in the BODACC must be made within 15 days following the conclusion of the sale and must contain a certain number of mentions : - The identity of the parties - The date of the contract and its registration - The nature of the business assets as well as its headquarters - The price stipulated All this is done to make the sale opposable to third parties > In practice, it is the buyer who will ask the commercial court clerk to make this mention at the same time as he asks for his registration at the RCS At the same time, the seller often claims his deregistration (because he must be deregistered from the register otherwise he is held liable for the commercial debts of his successor) L123-2 > On the other hand, if the buyer is not registered, he may be held on the basis of being a de facto merchant without being able to benefit from the favorable provisions of commercial law in his regard He is also liable to penal sanctions if he exercises a commercial activity on an individual and speculative basis without being registered > The failure to insert in the BODACC does not result in nullity (because it is not a condition of validity) The judge may impose a daily fine for each day of delay Notice of eviction coming from a third party (former non-debtor owner) Here, a condition of opposability, as long as the insertion in the BODACC is not made, the sale is unenforceable against third parties, who may oppose payment of the price to the purchaser From then on, since third parties can claim that they have an unpaid claim against the seller, they can oppose payment of the price to be paid first This opposition must occur within 10 days following the BODACC publication > The insertion in the BODACC is a fault to protect the rights of third parties in the event of a sale of the business assets to ensure that they can be settled in whole or in part of their claims II- The effects of the sale of the business assets Transfer of ownership > The sale of business assets is a consensual and informal contract, and because it is a consensual contract, the transfer of ownership occurs as soon as the consent is exchanged (although the sale is not opposable to third parties on the day of publication in the BODACC). [...]
[...] (Failure to do so may result in the termination of the sales contract) The termination sanctions the bad execution of the contract > Second obligation: eviction guarantee The seller must guarantee to their buyer a peaceful possession of the business premises This means on the one hand that he is insured against legal troubles that could be carried out by a third party Makes a third party claim a right on the property He must also guarantee the buyer against the troubles that he himself could cause him by his personal act (this is the case in the event that the seller of the business premises re-establishes himself and opens a new business premises after having sold the old one) Non-competition The seller must protect the buyer against acts of unfair competition (anti-competitive practices) that must not allow a third party to harm the fact of the exploitation of the business premises The obligations of the buyer > In exchange for the delivery obligation that weighs on the seller, the buyer is, on the other hand, obliged to take possession of the business premises And he is especially held to pay the price of the business premises > Whether he pays it in cash, or he pays it on credit through a seller's credit, or he can benefit from payment deadlines and in this case he can issue checks that correspond to the different due dates provided for in the contract . [...]
