commercial lease guide<\/a>.<\/p>\nTransfer of a business<\/h2>\nConditions of validity and obligation to provide information<\/h3>\n The sale of a business is subject to the general conditions for the validity of contracts (capacity of the parties, free and informed consent, lawful object). On one point, the special regime has changed radically. Until 2019, article L. 141-1 of the French Commercial Code required the vendor to include a precise list of compulsory details in the deed of sale: origin of the business, turnover and results for the last three years, statement of pledges and liens, date and term of the lease, and contact details for the lessor. Order no. 2019-1234 of 27 November 2019, issued as part of the Soilihi law, has removed these compulsory details<\/strong> to simplify transactions.<\/p>\nThis deletion does not relieve the vendor of any obligation to provide information. It simply means that the obligation is no longer based on a special text, but on ordinary law. Article 1112-1 of the Civil Code<\/strong> Any party who knows information that is decisive for the other party's consent must disclose it to the other party. Deliberately concealing a major labour dispute in progress, the imminent loss of an authorisation that is essential to the business, or a planning project that directly threatens the business: each of these forms of reticence constitutes a \"breach of contract\". fraudulent concealment<\/strong> and exposes the seller to having the sale cancelled or having to compensate the buyer. Transparency remains the rule. It has simply changed its basis - from the special to the general.<\/p>\n\nArt. L. 141-2 C. com. - Accounting documents on transfer<\/div>\n
Amended by the Sapin 2 Act (9 Dec. 2016), this article imposes two separate obligations on the seller. To day of sale<\/em>, In the event of a sale, the parties will jointly sign a document showing the monthly sales figures achieved since the end of the last financial year up to the month preceding the sale. During the three years<\/em> following the purchaser's entry into possession, the vendor shall make available to the purchaser, on request, the accounting records for the three financial years preceding the transfer. Any clause to the contrary is deemed unwritten.<\/p>\n<\/aside>\nMandatory information for employees<\/h3>\n Since the Hamon Act of 31 July 2014, the owner of a business with fewer than two hundred and fifty employees must inform them of his or her plans to sell the business. This information must be provided no later than two months before the sale is completed<\/strong>. It allows them to make a takeover offer - but this is not a right of pre-emption: the seller remains entirely free to choose his buyer, even when employees have submitted an offer. Failure to comply is punishable by a civil fine. There are exceptions: sale to a spouse, ascendant or descendant, or if the company is the subject of insolvency proceedings.<\/p>\nThe procedure: publicity, sequestration and opposition<\/h3>\n Once the deed of sale has been signed, a number of publication formalities must be carried out. The sale must be published in a legal notices<\/strong> and Official Bulletin of Civil and Commercial Announcements (BODACC)<\/strong>. This publication opens a period of ten days<\/strong> during which the seller's creditors may object to payment of the price. Opposition blocks the release of the price: it obliges the buyer and the receiver not to release the funds until the opposing creditors have been paid or the opposition has been lifted.<\/p>\nThe sale price is held in escrow by a notary or lawyer until all objections have been cleared. This period can extend to several weeks if creditors - tax, social security, former suppliers - lodge objections. If the buyer pays the seller directly before all objections have been purged, he may have to pay the objecting creditors a second time.<\/p>\n
\n
The 6 stages in selling a business<\/p>\n
\n1.<\/span>Employee information (at least 2 months before signature)<\/span><\/li>\n2.<\/span>Signature of the deed of sale (preliminary agreement with conditions precedent, then final deed)<\/span><\/li>\n3.<\/span>Publication in the legal gazette and the BODACC<\/span><\/li>\n4.<\/span>Opposition period for creditors: 10 days from publication in BODACC<\/span><\/li>\n5.<\/span>Cancellation of oppositions (payment to creditors or discharge)<\/span><\/li>\n6.<\/span>Release of the price to the escrow agent and definitive entry into possession<\/span><\/li>\n<\/ol><\/div>\nSeller's warranties: lien and resolutory action<\/h3>\n When the price is not paid in full in cash - which is often the case when the seller grants a vendor loan - the law reserves two guarantees. The vendor's lien<\/strong>, This agreement, provided for in article L. 141-5, paragraph 2 of the French Commercial Code, gives the seller a preferential right to the resale price of the business if the buyer defaults. It must be registered with the registry in good time. It applies only to those parts of the business expressly listed in the deed of sale and in the registration. A precise breakdown of the price between intangible items, equipment and goods is therefore essential - without this breakdown, the lien may be reduced to zero on certain items.<\/p>\nL'resolutory action<\/strong>, This right, provided for in article L. 141-6, enables the seller to request the cancellation of the sale - i.e. the return of the business - in the event of non-payment of the price. It is strictly limited to the items forming part of the sale. These two guarantees are subject to formalities relating to time and registration: a seller who delays registering his lien may find himself prevailed upon by a pledgee registered subsequently.<\/p>\nNon-competition clause<\/h3>\n The seller has a legal obligation not to compete with the buyer. This obligation - a component of the warranty against eviction due to personal acts - exists even without an express clause: a seller who immediately relocated next to the business being sold in order to attract former customers would be in breach of his legal warranty. In practice, deeds of transfer systematically include a clause of non-establishment<\/strong> which defines the scope of the ban.<\/p>\nTo be valid, the clause must be limited in three respects. It must specify the\u2019activity<\/strong> prohibited - only activities that genuinely compete with those of the business being sold. It must set a duration<\/strong> reasonable - a few years depending on the nature of the business; a perpetual clause is void. It must define a geographic scope<\/strong> relevant - a reasonable radius around the business, a town, a department. A clause that is unlimited in any of these three areas is null and void. The prohibition applies to the vendor himself and to his indirect actions: he may not take a financial interest in a competitor's business, work there as an employee to canvass the clientele he has sold, or act through an intermediary. Violation of this rule may result in damages and, if necessary, closure under penalty.<\/p>\nPledging a business<\/h2>\nA non-possessory guarantee<\/h3>\n The pledge of a business is the security that allows a trader to offer his business as collateral for a bank loan without ceasing to operate it. The analogy with a mortgage is a convenient one: a mortgage charges the building without depriving the owner; a pledge charges the business without depriving the operator. The trader keeps his business, continues to manage it, continues to generate sales - and it is precisely these sales that enable him to repay the loan.<\/p>\n
Collateral can be conventional<\/strong> - resulting from an agreement between the debtor and his creditor, typically his bank, in the case of a business loan - or judicial<\/strong>, In the case of a claim that appears to be well-founded and circumstances that threaten its recovery, the creditor may obtain a protective order from the enforcement judge or the president of the commercial court.<\/p>\nThe base: what you can afford<\/h3>\n The pledge base distinguishes between compulsory and optional elements. The following items must be included in the basis of assessment: the customers and traffic<\/strong>, l\u2019sign and trade name<\/strong>, and the leasehold rights<\/strong>. These elements form the hard core of the business - without them, there is no business, and therefore no valid pledge.<\/p>\nOther elements may be included by express agreement: machinery and equipment<\/strong>, patents, trademarks and licences<\/strong>, goods<\/strong>. In practice, banks systematically include trademarks and patents where they exist and have their own asset value. What cannot be included under any circumstances is real estate, even if it is used for that purpose.<\/p>\nIncorporation and registration with the Registry<\/h3>\n The pledge must be recorded in writing<\/strong> (under private seal or notarised). It is only enforceable against third parties from its registration with the commercial court registry<\/strong> of the place where the business is operated. This registration must be made within one month<\/strong> from the date of the deed.<\/p>\n\nReform of the law on securities - Order of 15 September 2021<\/div>\n
Prior to Ordinance no. 2021-1192 of 15 September 2021 (which came into force on 1 September 2021), the Company was required to pay a fee for the services it provided.er<\/sup> January 2022), failure to register within the one-month time limit resulted in the nullity<\/em> of the pledge - radical sanction. Since the reform, the penalty has been reduced to the payment of a fine.\u2019unenforceability against third parties<\/em> The pledge remains valid between the parties, but cannot be enforced against competing creditors. The reform also simplifies publication formalities and harmonises the territorial jurisdiction of court registries. Pledged creditors are now ranked by earlier registration date<\/strong> (new article L. 143-15-1 of the French Commercial Code), without further distinction.<\/p>\n<\/aside>\nThe rights of the secured creditor - and its practical limits<\/h3>\n The secured creditor has a preferential right<\/strong> on the sale or realisation price of the business, in the order of registration. This is the essence of his protection: if the debtor defaults, he will be paid before unsecured creditors, up to the amount of the proceeds of the realisation.<\/p>\nThe limits are real, and often underestimated. The secured creditor has no right of retention<\/strong> Unlike a pledgee with dispossession, the creditor cannot freeze the business in his hands. The debtor remains free to use the business, modify its composition and even reduce its value within the limits of his contractual obligations. Nor can the creditor take legal action to have the business assigned to him in payment.<\/p>\nIn the event of collective procedure<\/strong>, In the case of a pledge, the pledged creditor must declare his claim within the legal time limits, on pain of foreclosure and loss of his preferential right. It is then ranked in the order of registrations for the distribution of the proceeds of the realisation of the assets - after the super-privileged creditors. The absence of a right of retention makes the pledgee's position precarious in the event of a sale plan: the buyer may receive the business without the pledgee being able to physically oppose it.<\/p>\nFor these reasons, well-informed creditors often combine the pledge of the business with other securities, such as a personal guarantee from the manager, a pledge of company shares, or a mortgage on real estate. Pledging the business alone does not generally guarantee significant financing. Its effectiveness depends closely on the value of the business at the time of realisation, which may be much lower than the value estimated when the loan was granted. For a more detailed description of the general system of security on movable property, see the guide Pledging and security interests<\/a>.<\/p>","protected":false},"excerpt":{"rendered":"Le fonds de commerce n’a jamais \u00e9t\u00e9 d\u00e9fini par la loi. Le Code de commerce l’organise et en r\u00e9glemente la cession, le nantissement et la location-g\u00e9rance, mais il ne le d\u00e9finit pas. C’est la jurisprudence, depuis un arr\u00eat de la Chambre des requ\u00eates du 15 f\u00e9vrier 1937, qui a fix\u00e9 la notion : un ensemble de biens mobiliers, corporels et incorporels, r\u00e9unis autour d’une client\u00e8le. Ce guide expose le r\u00e9gime du fonds tel qu’il se pratique en 2026, \u00e0 la lumi\u00e8re des r\u00e9formes de 2019 (suppression des mentions obligatoires, assouplissement de la location-g\u00e9rance) et de 2021 (r\u00e9forme du droit des s\u00fbret\u00e9s).<\/p>","protected":false},"author":0,"featured_media":0,"parent":18290,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"page-templates\/template-guide-enfant.php","meta":{"footnotes":""},"solent_domaine":[412,442],"class_list":["post-18376","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18376","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/types\/page"}],"replies":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/comments?post=18376"}],"version-history":[{"count":1,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18376\/revisions"}],"predecessor-version":[{"id":18377,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18376\/revisions\/18377"}],"up":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18290"}],"wp:attachment":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/media?parent=18376"}],"wp:term":[{"taxonomy":"solent_domaine","embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/solent_domaine?post=18376"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}