112 / 516
As per art. 13/III of the NTCC, which will enter into force on 1
July 2012:
“The commercial enterprise will be transferred as a whole
which will not necessitate conducting the legally required transactions
for the transfer of each asset separately. Unless otherwise indicated,
the transfer agreement is considered as covering the fixed assets,
enterprise value, tenancy rights, trade name and other intellectual
property rights, and other assets which are permanently attached to
the business. The transfer agreement and other agreements subject to
which is a whole enterprise shall be in written form and shall be reg-
istered and announced with the trade registry.”
On the basis of the foregoing, the above mentioned provision of
NTCC supports the claim that for transfer of commercial enterprise,
the togetherness of assets and liabilities are not mandatory and it is
possible for parties to freely determine the components of a transac-
tion. Because, the relevant article explicitly indicates that otherwise
may be agreed and there is no reference to any debt and liability in
such article.
Conclusion
As discussed above in detail, the provisions of both NTCO and
NTCC related to the transfer of enterprise/business is in a nature sup-
porting the idea that it is not mandatory to transfer assets and liabilities
together for a transfer of enterprise. However, we will simply see how
Court of Appeal will interpret and evaluate the actual situations which
will occur after the new laws enter into force.
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NEWSLETTER 2012