The contract transfer of property and the Responsibility of the Parties

The Contract of Lease is commonly used by the entrepreneurs at the time of the transfer of the building trade, which, consequently, is characterized by the sale of the complex-the goods, whether tangible or intangible, and a specially organized to develop the business, whether an entrepreneur or business company.

In this kind of business, then the parties must, especially if you pay attention to the formalization of the details out, by means of a contract of their own, in order to establish the duties and rights of each one. Here, it is important to note that in all cases in which the contract is entered into, is not present or does not have the forecast of or in connection with the act, the onus will be on the application of the rule of the items 1.142 at 1.149 of the Brazilian Civil Code.

On the other hand, in addition to the legal relationship between the contracting parties themselves, that they also may be subject to liability to any third party, for which they will have to take measures ranging from the to the notice of the creditors, especially from produce, to the registration of the Contract of Lease with the board of trade, and the publication in a newspaper of wide circulation.

It is important to bear in mind that compliance with such requirements, and the caution of a report to the creditors, the aim is to establish the framework of a temporal, that will give the beginning of the period to the extinction of the liability of the selling as much as on some of its obligations. In this way, both parties resguardarão between you and the third party, and thus much of the discussion relating to the transfer of the business.

In this line you need to think over some of the key topics surrounding the lease:

1. The liability of the Parties

In the Contract of Lease, it is of the utmost importance that the parties to make provision for the extension of the liability upon the sale of your business and providing for the treatment to be given to the debt to be recognised and any liabilities that have not yet recognised for the produce.

As provided for by law, if the conveyor is not left with sufficient assets to pay their debts, the effectiveness of the Contract, the Lease will depend upon the payment in full with your creditors, or the taking of consent (such as for the sale of the business. This means that at the start of the negotiations on the transfer of the property, the selling will need to decide which strategy will: (i) maintenance of the goods sufficient to discharge in respect of the creditors; and (ii) a discharge in full of the debt; (iii) notice to the lenders stating that the lease, in order to obtain the consent of the latter.

The other caution is relevant to the recognition of liabilities in connection with its own business premises, to ensure that the buyer takes in full of the obligation to pay such charges for the transfer.

It is valid to note also, that the alienation shall remain jointly and severally liable for a period of 01 (one) year, and it will start to count from the date of publication of the Contract, the Lease, as stated above, in the case of overdue loans on the maturity date, in the case of other loans. Therefore, it is up to the parties to determine the form of the reimbursement of the amounts required for the alienation in situations in which such expenditure would be borne by the purchaser of the property.

This is because, generally speaking, the players tend to opt for a fourth strategy, in order to provide contractually represented a landmark period for which the assumption of the obligations of that establishment, the object of the lease. Thus, the parties are able to allocate for the price and on the conditions and in the best format for the assumption of such liabilities, on the basis that such a prediction will ensure that those parts of the law of return and obtain a refund, subject to the remaining fixed contract.

1. The seal of the competition, the selling to the buyer

With regard to the non-compete agreement between the selling and the purchaser, the parties will also have to pay attention to the forecast of the contract, in view of the omission of this point, the system generates the application of the law in order to be prohibited from competition for a period of 05 (five) years after the transfer.

In addition, if it is the intent of the parties, a contract may be able to establish the rules of the seal of the competition exclusively in the certain field of activity, as well as the location and period of time.

1. The absence of subrogation in favour of the Contract

After the signing of the Contract, the Lease, the buyer should pay particular attention to the non-existence of the subrogation in favour of the (transfer control of the contract position them, especially the contract for the lease of the property of the business. In the negotiation for the purpose of supplementing the existing contracts should be pre-evaluated, taking into account the assumption of such termination, and, in consequence, inviabilização from the property.

Even within the framework of the III meeting of the Civil Law, he was posted to the Statement, 234, it was fixed with the understanding that: “When the good of the establishment of the business, with the agreement of the location where it will not pass automatically to the customer.”[1]

The lack of subrogation in favour of the agreement, the lease may make it impossible for the business as a whole, given that a large part of the time, the assumption of a business that involves a commercial hub, due to its location and clientele.

Depending on the factual circumstances, it may be advisable, rather than by his own purchase and sale of the shares of the company, taking into account that, in such cases, as a rule, there is no need for any amendment to the lease agreement was originally entered into. Regardless, it needs to be verified in the absence of a clause in a termination due to a change of social control, resulting in the careful analysis of the contract in order to seek the best solution for you.

1. The assignment of the Claims that are Inherent in the Establishment of

In addition to the assumption of contracts and debts of the parties shall pay attention to the assignment of the credit facility, in order for the debtor to proceed to be paid by the purchaser. The debtor is not informed, and to make the payment to the selling, we will not be liable, and there is a regular discharge, resulting in the parties due to the transmission of values.

Despite being widely used by the business, and the act of “passing the point involves a number of circumstances and legal consequences of which have to be met at the time of the transaction between the two parties.

For this reason, the drawing up of the Contract, the Lease, any of the assumptions set out in advance, must be taken into account, in particular to ensure that there is no omission in the contract, or for which it is possible to predict from or in connection with the law, or even to preserve the performance of the contract in the case of the relationship with the creditors ‘ and the debtor or a third party in the contractual relationship.

Clarice Souza Martins, a Lawyer with a degree in law from the University FUMEC, and a bachelor of mixed media from the University of Santo Antonio de Murcia, Spain (2016), and which is registered at the Ordem dos Advogados do Brasil, Minas Gerais Section (OAB/MG) (2016). Post-graduate education using the L. L. M in Corporate Law from the Brazilian Institute of Capital markets (2018). Global MBA/LLM degree at Loyola University Chicago/IL (2019), an expert in Corporate Reorganization by the FIPECAFI (2022), and the IBDT (2023), a member of the State Council of the Business Law of the FEDERAMINAS. – A lawyer for a Senior Lacerda Diniz in the river Seine (in 2021).

Leonardo Theon in Paris as well as in Europe, with a degree in law, with an emphasis in business law from the University Presbyterian Mackenzie (2012), which was registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2012). A post-graduate degree and an Expert in Corporate Law from the Law School of São Paulo da Fundação Getulio Vargas (2014) Master’s degree in Law and Political economics, Universidade Presbiteriana Mackenzie, brazil (2017), the author of many books and articles, a speaker, a teacher at the undergraduate, MBA, and Executive Education in the FIPECAFI, a member of the bar Association of São Paulo (AASP), and the Chairman of the State committee of the Business Law of the FEDERAMINAS. A founding member of the TM is Associated with it.

[1]https://www.cjf.jus.br/enunciados/enunciado/453#:~:text=Quando%20do%20trespasse%20do%20estabelecimento,se%20transmite