Liabilities of purchaser in case of assignment of company business

Art. 2560 II Comma of the Italian Civil Code provides that in case of assignment of the company, the purchaser is jointly liable with the seller for debts incurred during the carrying out of the business, if those debts are on the obligatory account books.
It is a mandatory norm, which therefore besides operating independently from the will of the parties to the purchase (seller and purchaser), cannot even be avoided by the parties if the contrary or something different is agreed upon by contract.
Indeed, more often than one would imagine, it happens to read clauses such as: “the credits and debts remain the responsibility of the seller”, or “no further liabilities other than those expressly provided for by this contract are subject of the cession”, etc.

However, what happens when the subject of the sale is not the company, but a branch thereof? For example, when the company has a number of managed outlets and wishes to assign one to a third party; or when a fashion company has a number of clothing trademarks and wishes to sell one to a third party together with its branch of the company. In all these cases (and many others) more than a few issues can arise concerning the applicability of art.2560 Italian Civil Code.

Consider, for example, the hypothesis where a company contracts a loan with a bank for the purchase of a instrumental estate. In that case it is obvious that, if the real estate remains the property of the employer and does not fall within the assigned company brach, the original scope of the loan (purchase of real estate) would be sufficient so as to exclude that the purchaser of the company branch be liable for the debt towards the Bank.

Consider now, a debt contracted with a bank because of a contract to open a credit and consider the case where a branch of the company is assigned when the credit is entirely used by the entrepreneur: where the company has kept the accounts separated for the company branch, one can assume that the art.2560 cod.civ refers to the debts resulting from the accounts of the company branch, however what if the accounts were unique and unidistinguishable? Will the art. 2560 Italian Civil Code be applicable?

The Court of Trento has clarified that art.2560 Italian Civil Code will be applicable also for the assignment of a company branch, however, in that case, it cannot be applicable to the entire debt. The purchaser will answer for the debts found in the accounts of the selling company within the limits of the existing proportion between the entire company and the purchased branch: «the seller has only acquired one branch of the whole company belonging to the seller; therefore the bank’s credit can only be proportionate to the value of the sold part of the company».

In that case, a bank had sued the purchaser of a company branch so as to obtain from the latter, under art.2560 cod. civ., the payment of a seller’s debt because of a contract for the opening of a credit line in an account already in existence at the time of the sale of the branch itself.

The Court of Trento, after having ascertained that the sale effectively concerned a branch of the company and not the entire company, unable to establish how much of the moneys had been used for the company branch and how much for the remaining company, found a way out in the following solution: “to attach the entity of the ceded debt to the proportion between the value of the sold company branch and that of the remaining company assets”, entrusting the relevant investigation with a technical office consultancy.

The seller of the company branch, represented by Scarpellini Naj-Oleari & Partners, thus avoided the payment of the entire debt managing to reduce its liability to the 4% of the debt.

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