Correct: the Purchase and sale of the establishment of the business

The contract of lease shall regulate the sale of the properties, business, thus ensuring the continuity of the business. It requires the formalities, pay attention to the debt, and the tax and succession duties.

I. Introduction

The contract for the lease, which is regulated by art. 1.142 at 1.149 CC (lei 10.406/02-is the sale of a commercial establishment such as the unit that is organized tangible and intangible assets, to the exercise of an economic activity. The transaction includes assets such as equipment, goods, trademarks, patents, and contracts relating to the company, as defined by Terry Requião (2003). The securities shall be drawn up in writing and registered with the registry of commerce, as well as published to ensure its validity and effectiveness, to any third party.

The specific nature of the good is its purpose in the economy: it’s not just about the sale of the goods, but the transmission of the continuity of the business, maintaining the customer base and the potential for profit. In this sense, the doctrine that states that the lease does not cause loss of the business entity, but rather passes it to its exploration of the other party to the right.

II. the Nature of the legal

From a legal point of view, good has the nature of the contract-typical, two-way, proves to be costly, switching, and translativo. It is considered to be a contract of intuitu personae, in some aspects, especially the requirement of consent of the interested third parties, such as creditors.

The essential elements of the contract of the lease include the following: the object of the establishment of the business), the value (the amount of money or its equivalent), with the consent of the parties, and to comply with legal requirements. According to Modesto Carvalhosa (2020), the legal status of a lease that is closely related to the concept of universalidades, since the establishment, the business is treated as a whole unit, which the disposal occurs in a block.

III. the Difference between the sale of a commercial establishment and a company’s interest

Even though the lease and the sale of equity interests to be able to generate a similar effect on the structure of the business, they differ in substance and scope. The good, the subject matter of the contract is the establishment of the enterprise, as in the sale of a stake in your company, with the object, that is, the ownership of the shares, or the shares that comprise the share capital.

In the first case, it is a transfer of the assets of the components for the establishment of the business of the corporation, allowing you to explore directly with the business, by then, acquired the facility. In the second case, the executive board may or may not be transferable, depending on the aspect ratio of the shares, or the shares disposed of.

The purchase and sale of the establishment of the enterprise, that is, the contract of lease, the ownership of the legal entity (whether the seller or the buyer) does not change, what changes is the owner of the property. In addition, in the case of a full assignment of the shares or the shares of the company – the transfer of ownership of the corporate – acquisition of the shares, or the shares, also, wield, control, and to be understood in the premises, it is not necessary to perform a contract for the lease – the business is the part of the stockholders of the corporation.

Fabio Konder Comparato (2019) points out that the good will, the emphasis is on the continuity of the project, whereas in a sale the corporate level, the focus is on the changes in the composition of the membership.

Good

• The purchase and sale of a facility, change the ownership of the complex to the goods in the country. Go to a PAY for the other one, but that the company selling the facility undergoes a change in ownership;
• Only to the property is transferred from one company to another, while keeping the same ownership interest in the PJ’s the selling and the purchaser.

Sale security interest

• With the purchase or sale of a stake in your company, he was transferred to the ownership of the company, they now have a new corporate structure;
• The company, which was acquired remains the owner/proprietor of the establishment, and the changes that are members of the society.

IV. corporate and business succession

From the point of view of the corporation, and the securities and may lead to changes in the organizational structure, especially when it involves limited companies or public corporations. In these situations, you might have to watch out for in the articles of association or the regulations to verify that the requirement has been approved by the shareholders. As pointed out by Arnoldo Wald (2022), and the securities will not cause loss of legal personality of a company, but to transform the ownership of the property.

For the good cause of the succession of the purchaser in terms of obligations and contracts, linked to the establishment of the enterprise, according to the law and of the contract. According to the art. 1.146 on the DC, you will have to answer for the debt, the earlier of the sale, unless there is a discharge on the part of the conveyor, or if the creditor has expressly consented to the exclusion of their own responsibility.

The trim (the ability to generate a profit, income, assets, and liabilities recognised in the balance sheet) of the facility shall be submitted by the employer to produce, and this is an obligation under the contract of lease, presenting factual information, on pain of termination of the contract and the compensation corresponding to the customer.

It is important, therefore, to conduct a due diligence, in advance, before it enters into the operation of the lease, taking into account the risk of the liabilities of the various that you may provide, to be civil, tax, labor, among others.

– The liability of the trespassário/purchaser are limited to the passive declared/recorded on the balance sheet. The produce jointly, by a one-year term decadencial, the debts due to and by the assumed prior to the lease, which is a win and a year after the maturity date).

In accordance with art. 1,148 with the CC, in connection with the transfer of the facility, in the case of contracts relating to it, are a sub-rogados to you. This one happens to be a part of the relationship, in the place of the produce, except for the obligation of a contract, it is the personal obligation is extremely typical for the person or entity that must comply with it, or not exist at the forecast for the termination for a just cause, the opportunities for which the third party may terminate the contract at any time within (decadencial) for 90 days from the date of the publication of the transfer, except in the case of these cases, then, the liability of the selling.

How much more important it is to grapple with the repercussions of labor for the good. Compulsando the art. 448 CLT, a change in ownership for the change in ownership, corporate), or in the legal framework, such as the transfer of, for example, to set up) do not affect the terms of employment. It is assumed, therefore, that the good will is to transfer control of the contract for the work, and all of the labor obligations of the purchaser of the property.

It should be emphasized that the labor obligations are limited to the ones of the facility that you have purchased. As a result, in the event of being made good to the establishment of a subsidiary of the company to produce, it is necessary to be clear whether a particular employee is linked to the establishment of a head office or a branch office.

Y –  for Production of the purposes of the lease to any third party

So that’s the good effect against third parties, it is essential to comply with the requirements as to form. The art. 1.144 CC requires that the registration of the agreement on the public record of the business market and its publication in the official.

If you do not give publicity to the agreement will be valid and shall take effect inter partes, but you will not be able to rely on a third-party. These formalities are designed to protect the creditors, employees and other stakeholders, ensuring the transparency and publicity of operation. The failure to comply with these requirements could lead to the ineffectiveness of the contract, thereby compromising its validity to any third party, and allowing for the questions of the court.

If the conveyor does not have equity/assets are sufficient to pay for the liabilities relating to the facility is sold, the effectiveness of the agreement will be subject to the payment of all the creditors, or if the consent/approval of the transfer of intelligence to the art. 1.145 of the civil code).

As a result, in the acts of the transaction shall be published in the official media, giving it the beginning of the term, decadencial to the opposition of the creditors ‘ claims. During this time, the lenders will be able to resist or consent, express or implied (default configures the agreement of an implied – do not occur in the opposition after the last of the time). If a creditor objects to it, or some, of the effectiveness of the agreement in relation to third parties takes place only after the payment of the account (s).

In the case of a party to produce, possess the assets/funds to the creditors, it is only given to the science, without the need for approval.

If identified as a fraud, the transaction may be considered to be ineffective or, alternatively, as an act of bankruptcy. It is, in the latter case, the hypothesis of a petition in bankruptcy by its creditors, according to the art. 94), III (c), and (art. 19 and I SAW the law 11.101/05.

From the time of the publication of the lease, and the lenders shall comply with its obligations under directly with the customer, unless it in good faith, that the creditor has to prove it), it has failed to fulfil its obligations, with the conveyor (art. 1.149 CC).

In respect of the application, after the sale of the establishment of the business, the selling may not be able to compete with the buyer in a five-period of the sale, unless the contract is for the lease provide for a term different (art. 1.147 of the civil code).

Rent/lease, and use the establishment of the business

It should be emphasized that, in both the rental/lease, and in the enjoyment, there are implications related to the exploration and exploitation of entrepreneurial activity at the part of the tenant. In the rental or leasing of the art. 1.144 of the CC provides that a legal entity, the landlord may not be able to use the same business for as long as the contract, so as to avoid competition, which could divert the client or to compromise the continuity of the business by the tenant.

In the same way, in the enjoyment of the establishment of the enterprise, and the art. 1,393 new CC that prevents the naked owner to compete with the beneficial owner in the operation of the activity, the object of the contract, in good faith, the contract, and the social function of the company. These provisions reinforce the principle of the protection of the continuity of the business, one of the main pillars of the securities and, thus ensuring the uniqueness, in the exercise of the activity of the enterprise for the period stipulated in the contract.

VI.  the tax

The operation of the securities and raises a number of implications to the tax. You may want to focus on the due when the transfer of real estate that are included in the facility, there is also the possibility of a tax for the corporate income TAX on capital gains earned by selling. The classification of the tax the transferred assets, such as stocks, and intangible assets, although it may affect the basis for the calculation of the PIS and COFINS taxes.

On the other hand, do not form part of the VAT, or early childhood intervention in the conclusion of the contract of lease. If there is a tax credit towards the RFB, they will be kept in the establishment of object of a lease, and they will be transferred together with the right of establishment and used by you as much as possible permitted by law.

In addition to this, the estate tax provided for in art. 133 CTN size (law of 5.172/66 requires the purchaser to liability for taxes, owed by the conveyor, except in the case of preliminary authorization from the treasury for download at no charge. According to Hugo de Brito Machado (2021), it is essential that the parties will carry out a due diligence, tax, before concluding the lease, in order to avoid hidden liabilities.

If the selling is not over and explore the business, the liability of the buyer’s total. On the contrary, the continuity of the produce of the holding of the same, of business or, in the other branch, industrial and commercial, to the respondent, the purchaser, a subsidiary of the produce for the accounts payable, deferred tax assets, for a period of six months from the date of the sale, or the date on which it was carried out in the lease.

VII. Conclusion

The lease is a legal institution is of great relevance to the commercial law, allowing for the continuation of the economic activity without a break. Regulation of the CC provides legal certainty for the parties involved and the protection of the rights of third parties, such as creditors, employees and the internal revenue service.

In spite of its potential as a tool of the corporate reorganization, the lease requires the attention of the legal formalities to tax issues, and the succession of rights and obligations. Therefore, it is critical that business owners and operators in the law, to understand its characteristics, while ensuring efficient and proper operation.

BRAZIL. The Civil Code. Lei nº 10.406, de 10 de janeiro de 2002. Brasília: presidência da República. Available at: . Available at: [accessed 17 nov. 2024.

BRAZIL. National Tax Code. Lei nº 5.172, de 25 de outubro de 1966. Brasília: presidência da República. Available at: . Available at: [accessed 17 nov. 2024.

OAK, very low. A course in Business Law. 4th ed. São Paulo: Saraiva, 2020.

COMPARATO, Fabio Konder. The Power of Control of the corporation. 6th ed. São Paulo: Malheiros, 2019.

MARTINS, France. A course in Business Law. 32nd ed. Rio de Janeiro: Forense, 2018.

PAULSEN, the two become friends. Tax law: the Constitution and the Tax Code in the light of the doctrine and case-law. 26th ed. Porto Alegre: Livraria do’s Lawyer, 2022.

REQUIÃO, Terry. A course in Business Law. 26th ed. São Paulo: Saraiva, 2003.

WALD Interviews. A course in Business Law. 5th ed. São Paulo: Revista dos tribunais, 2022.

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