Business Transfer, Leasing, and Entrepreneur Liability
Sales (Inter Vivos Transfer)
The sale involves the inter vivos transfer of a business. This is determined by the specific assets being transferred, essentially the company itself. This applies specifically to trading companies when transferring a capital unit formed by economic activity and labor, managed and organized by its owner.
The transfer conveys ownership of the company, focusing on economic factors and factual/legal relationships not subject to legal control. These include organization, customers, expectations, contractual labor relations, and banking relationships. The purchase contract is commercial in nature and not subject to special formalities.
The complex nature of the sales contract requires a specific legal framework. Contractual obligations and debts are transferred as agreed. Each element is transferred according to its nature: property via public deed and property registration, and personal property via simple delivery.
The actual delivery of the company also includes intangible assets, obligating the seller to communicate know-how necessary to continue the business. This should further stabilize the company and address any hidden defects.
Leasing
Leasing is a legal transaction where possession is transferred from one company to another for a price and time period. It lacks specific legal regulation under our law, so it is governed by local agreements.
The Tenancy Act regulates the business, distinguishing between company and business premises. In the former, the tenant receives the company (the premises being one element) in operation or ready for immediate use. In the latter, the tenant receives only a room or building for uses other than housing.
Commercial premises leasing involves the simple enjoyment or use of a building to conduct business. Company leasing focuses on the continued operation of the business, its assets, and complex organization.
The Individual Entrepreneur
An individual entrepreneur is a person or legal entity who, in their own name, engages in intermediary activities in the market, typically for profit. A sole proprietor has the legal capacity to engage in commerce regularly.
Those of legal age with the free disposal of their property have the standing to trade regularly. Minors or incapacitated persons may continue a trade previously exercised by parents or guardians, but cannot initiate a trade if they lack the capacity to do so.
Trade by a Married Person
There are three classes of goods:
- Private property brought into the marriage.
- Acquisitions during the marriage.
- Private property of the other spouse.
The other married person is liable with their private property and part of the acquisitions when the spouse engages in commerce. The code assumes that other acquisitions may also be liable if there is no spousal opposition. Spousal consent is needed to encumber proprietary assets.
Both spouses are free and equal when initiating or continuing commercial activity. The marital authorization system, which required women to access established freedom, has disappeared. Agreements between spouses are now paramount.
Employer Liability
The employer is responsible for fulfilling their obligations with all present and future assets (Art. 1911 C.c.). This includes personal financial liability and unlimited contractual liability.
The employer’s liability extends to acts or omissions involving fault or negligence that cause harm to another person (tort, Art 1902 CC), and also when performed by persons working with them (Art. 1903, para. 4th, Cc).
Liability also extends to damages to third parties during the development of the business (strict liability or no fault). For example, entrepreneurs engaged in activities that involve a risk to others are liable for damages caused to consumers, even without fault or negligent act (only for the mere fact of occurrence).
Within the EU, there is a movement to create separate assets for the employer, distinct from personal assets, to limit liability. This facilitates access for individual entrepreneurs in activities involving large economic risk and provides flexible instruments for partitioning risk arising from various business activities.