Transmission issue of Business Agreement
The transfer of a business can cause serious problems when used legal form contains loopholes or gray areas.
Si la object bounding transmission It is unclear, it is likely that as time passes differences that end up in the courts are generated. ¿the complete legal position or only certain rights of a contract is transmitted?
The Supreme Court has ruled in Judgment 4 February 2016 one of these cases.
TDN is a company dedicated to transport throughout the national territory.
For distribution in the Canary Islands, had their own company called Rucasa. TDN was of principal customer.
In April 2009, Rucasa celebrates "Business transfer agreement" for it, transmitting a "South Cargo" their "business". And define "business" in the Expository I of the contract, indicating:
"The selling activity performed circumscribed transport goods to the geographical area of the Canary archipelago, performing tasks transportation agency (onwards, the business). It is not found in its object, nor part of "business" and is the subject of this contract, the carriage from the peninsula and the Canary Islands destination. It is therefore restricted its scope to inter-island traffic ".
The agreement, the "totality of assets" gave way, "ownership of the customer base", la “cartera de pedidos de venta” y todos los trabajadores a la compradora cuya responsabilidad asume. It did not include or liabilities of the seller, and their legal positions in contracts with third parties (except workers) or selling treasury.
In exchange, the price to pay were 184.000 euros, 30.000 payable upon signing the contract and 154.000 to pay in monthly installments from the sixth month from that day.
The seller agreed to collaborate with the buyer for transferring customers and if service requests received after signing, They not perform them and be communicated to the buyer.
Equally the seller is obliged not to compete with the buyer for a period of two years, setting yourself penal clause 720.000 cars infringement case.
the possibility is provided for both sides of assign the rights of contract.
The seller promised to deliver to the buyer two first demand bank guarantees, one 100.000 and within euros 3 months and another for 200.000 euros and within four years, warranty obligations of the seller.
Cargo south, only he paid 30.000 euros and did not face any of the other amounts.
Rucasa was suffering a crisis situation (that would lead to its liquidation) and ceded rights to the TDN commercial contract.
differences in operational occur between TDN and South Cargo, so in December 2009, TDN stopped hiring with South Cargo and went on to work with other companies.
So in September 2010, Cargo filed a complaint against South TDN demanding payment of the penalty clause of the contract (720.000 euros) for breach of the prohibition of jurisdiction more 352.134 euros for damages and 237.497 euros for unpaid bills and other expenses.
TDN opposed the lawsuit alleging that the prohibition of competition was not for him not to have been part of the contract.
Also, He brought a counterclaim requesting 154.000 euros for the deferred price and unpaid, as well as other amounts outstanding.
The Court of First Instance found that TDN was obliged to enforce the ban on competition and ordered it to pay the penalty clause plus compensation for damages. It also considered the claims counterclaims TDN. En total 674.545 euros to pay for TDN.
TDN appealed and the audience estimated, only with regard to the return of a forklift.
For Hearing, comprehensive "legal position" of all active and passive relations relented, and in particular, the obligation not to compete.
So TDN stands extraordinary appeal for procedural infringement and appeal to the Supreme Court.
The appeal alleges infringement of Article 1282 CC interpreting business between Rucasa and TDN as an assignment of contract and not as a mere transfer of credit.
The Board considers the reason. The pact 11.3 the business transfer agreement does not prevent Rucasa cede their rights separately. South charge separately could not give his rights until he had not completed payment.
Although South Cargo expecting keep TDN as a client, It rucasa not guarantee in any way that would thus.
It is considered that what happened was an assignment of credit rights TDN and not the full legal position.
Therefore, not appropriate to impose the penalty clause for breach of the prohibition of competition TDN.
Ultimately, states that no transfer of contracts but credit and therefore, TDN should not pay nor 720.000 euros of the penalty clause, nor 15.419 euros for damages. It also condemns South fee to return the forklift.
It should be clear whether we are giving a complete contractual legal position and rights or only some of it. The difference can be substantial.