Sale of business and delimitation of the possibility of withdrawal of a shareholder Summary: 1.Nozione company. - 2.In what way the company runs?. 3.Allocazione-contracts the company sold. - 4.Crediti and debts relating to the company. - 5.Il simple withdrawal of a shareholder in the company (SS) and the limited liability company (SRL). 1.Nozione company. In common parlance the terms enterprise and company take the same meaning, however, from a legal perspective
the gap is clear, since the company has all the assets held by the contractor to the exercise of the company (art. 2555 cc), while the latter represents the activity organized economic,
the end of production or exchange of goods or services (art. 2082 cc). Between the two there is a relationship as a means to an end.
Consequently the company is aiming to cover all forms of production of the year, ie, configure the goods that are materially necessary to accomplish that particular business. And 'well to specify that the contractor may not have the properties on these particular goods, because he could also benefit from them in order to perform the business activities (eg the entrepreneur who uses such property under a lease
(1). 2.In what way the company runs?. The legislature has provided that the company, like any other asset, can circulate when the farmer disposes of, or the giving in usufruct or rent. For companies subject to registration agreements which relate to the transfer of ownership or enjoyment of the company must be evidenced in writing, save
compliance with the forms prescribed by law for the transfer of individual assets that make up the company or
to the particular nature of the contract (art. 2556 cc). The
writing procedural, for the validity of legal transactions is imposed only for companies subject to registration, or those that have as their object:
1) an industrial activity is the production of goods or services
2) an intermediary in the movement of goods;
3) transport activity by land, sea and air;
4) a banking or insurance;
5) other ancillary activities of the above (art. 2195 cc).
E 'we must specify that the written form will be required each time you will undertake a transfer of real estate, furniture and registered in other circumstances in art. 1350 cc. The moment will be transferred to the company not occorrerà specificare i singoli beni oggetto del negozio giuridico, in quanto, saranno compresi tutti quelli che attengono all’organizzazione comune dell’imprenditore. Le parti, tuttavia, potranno espressamente escludere taluni dei beni dal trasferimento.
Esiste un limite all’esclusione di tali beni, infatti se la traslazione si realizza al di sotto della soglia minima nella
quale è possibile svolgere un’attività commerciale, non si avrà una cessione di azienda ma un mero dislocamento di pluralità di beni
(2) .
3.Allocazione dei contratti dell’azienda ceduta. Nell’azienda l’imprenditore fruisce anche di beni rispetto which has only enjoyment, so the transfer of business involves the sale also derived from business carried on by the transferor.
If not otherwise agreed, the buyer takes over the company in contracts for the exercise of the same company that does not have a personal nature (art. 2558 cc).
Firstly there is the phenomenon of transfer of employment contracts entered into by the contractor to carry out its business, in fact in the case of company transfer, the employment relationship continues with the transferee and the employee shall retain all rights arising therefrom (art. 2112 cc). Unless otherwise agreed, in case of transfer for any reason the buyer takes over the company in the consortium contract (art. 2610 cc). Secondly
are relevant to business contracts in the strict sense, ie those involving the use of property not belonging to the entrepreneur and business contracts entered into for the use of the company (eg, contracts with suppliers, contracts insurance, et cetera ...).
Thirdly, deserving of attention are the leases and the payment of compensation by the tenant, the landlord permits the use of the property where the commercial activity takes place.
Finally the last category of legal acts relevant to the transfer of business are personal ones, since it is the legislature to provide that the buyer takes over the company in contracts for the exercise of the same company that does not have a personal nature (art. 2558 cc ).
First, the distinction between personal contracts and contracts for the financial enterprise, involves considerable difficulties of interpretation
(3) . In a nutshell, you can include in this special category of legal transactions in which there is a close connection trust between the employer and the professional who was chosen for its of competence.
4.Crediti and debts for the company. The transfer of the succession of legal transactions in regard to those performance fees that
before the transition to entrepreneur contractor had not yet been fully concluded.
The disposal of claims relating to the divested business, even in the absence of notification to the debtor or its acceptance has effect against third parties, by the time of the transfer in the register of enterprises (art. 2559 cc). But the debtor is released if he pays in good faith transferee
(Article 2559, paragraph 2, DC). As
regards the debts, they detect only those that are off the books required (article 2560, comma 2, cc), so the assumption of such a deduction only if you configure the vendor was a merchant art. 2082 cc. It 'good to clear it does not detect the fact that the buyer was aware of any debts not included in the records
(4) . The transferor is not released from
debts, with the exercise of the transferred prior to the transfer, if it does not appear that the creditors will have
allowed (Art. 2560, Civil Code).
5.Il simple withdrawal of a shareholder in the company (SS) and in society Limited (SRL). In simple societies each member may withdraw from the company when it is contracted for an indefinite period or for life of one of the members (art. 2285 cc).
This option is an exception to the system envisaged by the rules of common law, because the contractors usually can withdraw from the legal transaction only on the basis of mutual consent
art. 1372, comma 2, cc.
Members may also withdraw as provided in the social contract, or when there is a just cause (Article 2285, paragraph 2, DC). It must be determined in case by the interpreter, however, a recent case decided that this phenomenon is configuraallorquando members fail to fulfill duties of loyalty, diligence and fairness
(5) .
In the cases provided for in the first paragraph, the withdrawal must be communicated to the other shareholders with a notice of at least three months (Article 2285, paragraph 3, DC).
With regard to the limited liability company articles of association shall determine when the member can withdraw from the company and the relevant procedures. In any case, the right to withdraw the responsibility to shareholders it was not possible to change the object or type of company, its merger or demerger, to lift the state of liquidation by transferring the registered abroad after elimination of one or more Cases of withdrawal provided for in the Constitution and carrying out transactions which entail a substantial modification of the object
Society determined in the articles or the substantial modification of the rights granted to members pursuant to Article 2468, fourth paragraph, cc. Not affect the provisions on withdrawal pearls companies subject to management and coordination (art. 2473 cc).
In the case of a company contracted indefinitely the right of withdrawal is for the member at any time and may be exercised by serving a notice of at least one hundred eighty days, the bylaws may provide for a notice period of longer duration if not more one year (Article 2473, paragraph 2, DC).
Members who withdraw from the company are entitled to a refund in proportion to its participation in the assets. To this end it is determined taking into account its market value at the time of the declaration of withdrawal in case of disagreement, the determination is made by sworn report of an expert appointed by the court, which also provides for costs, at the request of either party , applies in this case, the first paragraph of Article 1349 Civil Code (art. 2473, paragraph 3, cc) ..
Repayment of equity that has been exercised the right of withdrawal must be completed within one hundred eighty days of the same made to society.
It can also be offered for purchase by other shareholders in proportion to their holdings or from a third party identified by such shareholders agree. If they do not, the refund shall be made using available reserves or, failing that, correspondingly reducing the share capital, in which case the provisions of Article 2482 and, based on where it is not possible a refund of the participation of members resigned, the company is in liquidation (Article 2473, paragraph 4, Civil Code).
The withdrawal can not be exercised and, if already executed, and is ineffective if the company withdrew the resolution that the legitimate or if you decide to dissolve the company (Article 2473, paragraph 5 cc).
NOTE: (1) Cass. Civ., October 20, 1966, No 2777, in Mass. Foro
it. , 1966
(2) Cass. Civ., June 16, 1967, No 1416, in Mass. Foro
it. , 1967
(3) Cass. Civ., April 12, 2001, No 5495, in
Jur. comm. , 2001, II, p. 543 ff., With a note of
M. CIAN.
(4) Cass. Civ., June 20, 2000, in Mass. Foro
it. , 2000
(5) Cass. Civ., February 14, 2000, No 1602, in Mass. Foro com., 2000
REFERENCES GALGANO, Commercial Law. The entrepreneur. Zanichelli, Bologna, 2009 GALGANO, Commercial Law. Companies. Zanichelli, Bologna, 2009
