Ali al pro pro alio in the sale of a going concern

Compraventa empresa


Who is required to negotiate with the landlord when a going concern is sold? 

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A operating company sales contract, it is the selling party who has to negotiate with the lessor so that the subrogation in his legal position as lessee is real and effective. Otherwise, the contract is breached in an essential and very serious way.

Section 1 of the Ávila Provincial Court ruled on 9 March 2020, with No Resolution 146/2020, dismissing the appeal filed by D. Belarmino, fully confirming the sentence handed down in the first instance by the Court of First Instance No. 1 from Arévalo. The Section considered that for the contract of sale of a company in operation is understood to have been fulfilled, era it is necessary that the possession of the business premises be transferred, namely, the selling part, through this type of contract, was obliged to negotiate with the lessor the subrogation in its legal position as lessee, so that the contract was real and effective.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

D. Belarmino, as part selling, y D. Calixto, as purchaser, signed a sale and purchase agreement on 23 November 2017. The purpose of this sales contract was to sell a bakery business that included the transmission of economic activity, of the assignment of lease contracts, the transfer of ownership of the machinery, a car and the customer portfolio. The total purchase price was 43.000 €. The day of the signature, D. Callistus paid 20.000 € a D. Belarmino.

Later, D. Calixto filed a lawsuit, exercising the action of resolution of the contract and the refund of the price paid, under the precepts 1.124 and 1.101 of the CCivil for essential breach by D. Belarmino.

Primera Instancia

The Court of First Instance No. 1 de Arévalo sentenced the 15 November 2019. He estimated the lawsuit filed by D. Calixto, and he condemned to D. Belarmino to return the 20.000 € paid the day of signing the contract by D. Calixto, as well as the appropriate legal interests.

The Court considered that there was cause for termination of the contract for essential breach of the contract of sale of a company in operation.

Provincial Court

D. Belarmino interposed appeal.

The Section applied the figure of "Someone else" to resolve the appeal. I consider, after bringing up jurisprudence and doctrine of the Supreme Court, that, two were the notes for it to be considered that something other than the agreed had been delivered, which led to D's breach of the contract. Belarmino:

  • Disability of the object for which the contract was intended.
  • Dissatisfaction of the buyer.

For Section, it was before a serious breach of contract by D. Belarmino, for, within the contract of sale of the company in operation, the transfer of the legal position as lessee of the business premises was included: It was in said premises where all the necessary machines for the exercise of economic activity were installed.

Ultimately, if the possession of the business premises was not transmitted, the total inability of the object of the contract occurred.

With the contract of sale of a company in operation, D. Belarmino was obliged to negotiate with the lessor, subrogation in your legal position as tenant, so that this subrogation was real and effective. Don't negotiate this, The breach of the sale contract was essential and very serious, so it had to be resolved.


The operating company purchase and sale contract carries with it the obligation of the seller to do everything necessary for the subrogation in his legal position as tenant to take place, under the same conditions. Otherwise, the contract can be terminated for essential and very serious breach, under articles 1.124 and 1.101 CCivil.

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