Is it possible to sell the enterprise, production? Such a question often arises in an inexperienced entrepreneur who wants to free himself from a case that is not to his liking. Orientation in this area is also necessary for those who would like to buy a ready-made business. Current legislation allows us to consider a working company as an object of law, which means that transactions with it are allowed if they are properly executed and all the duties are paid. To find out more about the legal regulations governing these issues, special attention should be paid to the Civil Code, the articles of which contain detailed answers to any questions related to such a transaction.
How it works?
The law currently in force calls for the sale of a part of the enterprise or business as a whole to consider the object of the transaction as a complex of property applicable for doing business. It includes everything that was used by the previous owner and the new one needs to be successful: land, structures, consumables, machine tools and machines, transport, products, rights, obligations, individual signs and symbols, services. In a word, any property, all exclusive rights at the conclusion of a transaction pass from the previous owner to the new one.
The sale and purchase of an enterprise as a complex property is possible, since such a transaction subject to law is evaluated by real estate, although certain articles of this collection of laws disclose transactions with real estate, but other chapters are devoted to entrepreneurship intended for sale. In them, however, it is expressly stated that the standards prescribed for immovable objects can be applied to such an object, unless a different approach is declared by the rules governing the agreement on the sale operation. You can familiarize yourself with legal settings in article 549 of the Civil Code, in the second paragraph of this document.
Question Features
Buying and selling an enterprise in an operating mode, an object as a whole, is a direction from the former to the new owner of an abundance of different elements. This includes: equipment, buildings, rights, obligations related to the material aspects of the business. The procedure becomes the cause of the formation of complex relationships. As practice has shown, the previously existing norms were not enough to regulate them, so relatively recently the legislation was supplemented with additional rules that made transactions transparent, honest, understandable.
If the property complex acts as an object in the sale of a large enterprise (as well as a small one) as an object of the agreement being concluded, certain obligations and rights may be such that the previous owner simply cannot transfer them to other persons. There are two special categories, regulated, respectively, by two paragraphs of the 559th article - the second and third.
And more?
The first subtle point is the brand name, symbols of the product, service, other individual labels, allowing to identify the company, the product from the general mass, rights associated with licenses. All of them must be transferred to the new owner, unless the agreement on the transaction contains other conditions.
The second nuance associated with the contract of sale of the enterprise is the rights that arose on the basis of permission to engage in the chosen field of entrepreneurship. No licenses of this kind can be sent to the buyer at the conclusion of the agreement.As an exception, the legislation noted special cases expressly prescribed by regulatory enactments. Additionally, the law declares liability to creditors if the company has not fulfilled its obligations due to the lack of a new owner of the license that the former issued. Responsibility here lies simultaneously with both the former and the new owner. When planning a transaction, the object of which will be a company that needs special licenses for work, both parties must think through this issue in advance and complete all the required documents on time so as not to become violators.
All on the shelves
Concluding a contract for the sale of an enterprise, it is necessary to register in detail the composition of the company in it, indicating the price of all the elements, without missing a trifle. In order for the list to be correct and complete, an inventory is preliminarily carried out. The current rules of the Civil Code include instructions for certifying the composition. This is described in detail in article 561, second paragraph. Before signing the agreement, both parties must jointly prepare, study inventory acts, balance sheets, audit reports, for which an independent expert was invited to issue an assessment of the composition and price of the transaction. Also, the buyer, seller together study the list of obligations attached to the company. It should mention the terms, financial values, names of creditors.
All the listed documentation at the signing of the contract of sale of the company accompanies it as an integral application. The agreement itself must be made in writing in the form of one official document on which both parties put their own signatures. If at least one official paper from the listed list is absent, the agreement will be declared invalid because the contractual form has not been followed. This norm is established by Article 560 of the Civil Code, the second paragraph of the document.
Everything is official
Within our country, any agreement regarding the sale of an immovable object must be fixed in the prescribed manner in the registers intended for this purpose, maintained at the state level. The sale of the enterprise is carried out similarly, that is, a record of the transaction must be entered in the list intended for this. Only from the moment of state registration can a transaction be considered concluded and entered into force.
The sale of existing enterprises implies that the new owner receives all rights to demand fulfillment of obligations from third parties. At the same time, debts are moving to him. This procedure is possible only with the official consent of the lender. The Civil Code established in what form and in what time frame it is necessary to send notifications to interested parties. If lenders agree to agree on a business process, a deal can be made. If the order is violated, you will have to answer before the law - these persons have the right to appeal to the court to restore justice. These opportunities are declared by the 562nd article of the Civil Code.
What should be done?
When selling a company, it is necessary to send written notifications to all creditors. This applies to any, even the smallest obligations associated with the company. The procedure must be completed before the transfer of the object to the new owner. The scope of creditor rights, the result of their implementation depend on the extent to which the regulations are correctly executed. At the same time, the lenders themselves, having received notifications, must reasonably decide: do they agree with the operation of the sale of the business. Those who respond negatively, as well as those who do not receive notifications, may demand that they fulfill their obligations ahead of schedule. You can request a complete cessation and return of losses associated with violation of the agreement.In some cases, the sales contract itself may be recognized as illegal, invalid. This can only apply to a paragraph, a paragraph of the agreement.
If the lender received a formal notice, he has three months to express his disagreement with the planned transaction. The countdown begins at the moment when the paper arrived informing about the planned sale of the enterprise (including LLC). But if the notification to the interested person did not come, then he has a full twelve months to express his disagreement. The deadline is counted from the day when the person found out about the transaction or should have received a notice of completion.
It is necessary - it means it is necessary
The sale of an enterprise in some cases involves the possibility of transferring debt to a new owner without agreement with the creditor. In such a situation, after the transaction to the creditor, both parties to the agreement will answer together.
In order to correctly and fully fulfill all the obligations provoked by the concluded agreement, you will have to take a number of actions that are not typical of other agreements. In general, the seller prepares the property for transfer to the new owner. This procedure is organized at their own expense, although sometimes the contract may declare otherwise. The seller is also responsible for the formation of the deed of transfer and all its annexes. The document is sent to the acquirer for approval and signing. The act associated with the sale of the enterprise reflects information about which of the creditors was notified of the event. Here it is necessary to reflect the composition of the company, all the shortcomings discovered during the inventory, as well as property that the seller recognized as lost.
Official moments
The date of sale of the enterprise is the day when both parties put their signatures on the deed of transfer. It is on this day that the buyer accepts the possibility of accidental death, harm to the property complex. But the new owner will receive the right of ownership only on the date when information on the new agreement is officially entered into the state register. The buyer, not being the owner until the moment of registration, can already carry out operations with property, as far as those are required to maintain efficiency and realize the goals for which the object was purchased.
At the same time, the seller, until the date of registration of the transaction, is the owner, but does not have the right to dispose of the property specified in the contract. This applies to various formats of joint work, including the sale of enterprises from tenders. Often the complex being implemented is numerous immovable objects. In any of the options, a full-fledged execution of a transaction involves the conclusion of only one agreement to be entered into the state register. At the same time, the enterprise is registered as one object, it does not play a role, how many elements of it are in reality.
Alternative ways
All modern types of sale of an enterprise practiced in business, as a rule, have one goal - to get out of business. In addition to the actual implementation, there are two more ways - to liquidate the company or to issue an alienation of the share. The sale is optimal for a businessman who wants to complete his work in the previous sphere, but plans to conduct other activities in the future as an entrepreneur, having good experience behind him.
Sequence of operations
Start selling a business by deciding on the possibility of such a transaction. Responsibility for this lies with such a company body that has the appropriate authority. In most cases, the transaction includes more than a quarter of the book value of assets, which means it is regarded as large.If the price exceeds half of this value, the only method of legalizing the planned one is to hold a general meeting of shareholders with the record of the event. If the decision could be agreed with all interested parties, they invite a lawyer to formulate a draft agreement and additional documentation mentioned above, after which they send notifications to the lending legal entities.
When all the preliminary steps are completed and the buyer is found, you can sign a deal agreement and register it in an official manner. Registration takes place at the place where the company is officially located. Then the transfer, documented by the act, is carried out, the rights of the owner are registered, including rights to real estate, non-residential objects.
Is it perfect?
Often, the sale of state-owned enterprises (as well as private ones) is a transaction concluded in relation to a property complex, which has a number of significant drawbacks. This is not an obstacle to concluding an agreement, but only if the seller conscientiously approaches the documentation and indicates all such aspects. It is necessary to register them in the agreement governing the transaction, as well as reduce the price. If defects were discovered by the buyer after the transfer of the object to him, and the price due to their presence was not reduced, this person has the right to apply for compensation. This also applies to obligations that limit the activities of the company. If the buyer manages to prove that before signing the agreement he simply didn’t have a real opportunity to detect weaknesses, after the conclusion of the contract, the seller can be required to reduce the amount.
Regardless of the presence of deficiencies, the agreement governing the transaction must be registered in the prescribed manner. This applies to all rights to objects, land, non-residential buildings.
What are we talking about?
In order for everything described above to be applicable to a particular transaction, its object should be precisely the enterprise, that is, the property complex, which has a number of characteristic features declared by law as defining features. First of all, you need to mention the composition. The company is a tangible and intangible elements. The first include retail space, workshops and production facilities, land and facilities, cash and reserves. Intangible - rights to own property, exclusive, associated with creative activity, individualization.
An enterprise can only be called such an object, within which a technological closed cycle is implemented, that is, a single process should be established. The whole complex as a whole does not have to act as an object; a deal can be concluded as applied only to a certain part suitable for entrepreneurship. The implementation of individual elements is carried out according to the same standards as the whole complex as a whole.
I have the right to demand!
The buyer, having received the purchase at his disposal, first of all must verify the full compliance with the real situation and established documentation. If missing items are found, it is possible to require the seller to deliver them or compensate for their absence. If the acquirer spent money on eliminating the deficiencies, the seller is obliged to make up for these expenses. Equally, the law establishes obligations for the reimbursement of expenses associated with the acquisition of goods in return for low-quality ones.
If the buyer concluding the transaction receives property from the seller in an inappropriate condition or less than specified in the agreement, a reduction in the transaction price should be requested. Through these features at the level of laws, the protection of the rights of all parties involved in concluding an agreement is implemented.If a notice was sent from the buyer to the seller, but the deficiencies were not eliminated, the interested party has the right to demand an adjustment to the agreement or its termination.
Legal subtleties
The consequences of declaring a transaction invalid in some cases by laws can be recognized as limited to use. This applies to a situation where they can cause a violation of the rights of creditors, the interests of buyers and other persons associated with the agreement. Subject to public interest. If no restrictions are identified, the consequences may constitute a natural penalty, termination of the agreement.