"NEWS 14 SEPTEMBER 2016-link between assignment of the lease and sale of business"

Posted by on Sep 14, 2016

Pursuant to article 36 of law 392/1978, provision applicable to commercial leases, the lessee has the right to sublet the property or assign the lease without the consent of the lessor, provided you set sold or leased the company, by giving notice to the landlord by registered letter with acknowledgment of receipt.

To better understand this relationship, inherent in the standard, between the assignment of commercial lease and sale of company reports a maximum taken from the judgment of the Court of Cassation No. 9486/2007. The pronunciation in question States that the assignment of the lease to the sale of the company's contextual, as provided for by article 36 of law 392/1978, is framed as a hypothesis of transfer "ex lege" which is characterized as a special discipline dictated in terms of transfer of business contracts, and, for effect, as "subspecies" of the sequence covered by article 2558 cod. CIV., in which, although there is no necessary link between automatic and sale of the company and assignment of the lease, the two stores are inserted in an economic operation circle, where the relationship between them is the same between the General to the particular.

Found that the link between the two "disposals" located within the article 36, although there are many points on which you'd want to linger, will be dealt with aspects that are more profound in the light also of interventions exist in law. First, although the norm, with express reference to situations in which the company is sold or leased, does not require the consent of the lessor, the other still provides that the opposition of the same happens in a much more timely than provided by article 2558 of the civil code. In precept mentioned, therefore, can be seen first and foremost a derogation concerning the consent of the lessor, that is precisely its opposite within the article 1594 of the civil code, in which the civil law legislature prescribes that the conductor, unless otherwise agreed, has the right to sublet the thing locatagli, but cannot assign the contract without the consent of the lessor. Another aspect is the aforementioned opposition by the landlord that we detect differently as regards timing. According to article 36 of law 392/1978 the same can be effected, for serious reasons, within thirty days of receipt of notice, while under article 2558 of the Civil Code prescribes the withdrawal within three months from the notice of transfer: "the third party may nevertheless terminate the agreement within three months after the news of the transfer, if there is a just cause except in this case the liability of the transferor. The same provisions shall also apply to the usufructuary and the tenant for the duration of the usufruct and of the rent ". Also has a major provision within article 36, which attributed the lessor, if do not have freed the transferor, to act against the same if the assignee has not performed the obligations assumed. In support of the above benefits mention the order of Cassation No. 23111/2015 which States that:

  • There is a constraint of subsidiary liability, characterized by the mere "beneficium ordinis", between the transferor and transferee, become the next conductor of the property;
  • This constraint of responsibility allows the landlord to apply to the originator, with the experiment of its judicial actions for the fulfillment of obligations relating to the contract, only after you have consumed the non-performance of the new tenant.

A natural extension of our reasoning makes it appropriate to recall the decision of the Supreme Court No. 11010/2011, where it is made aware that, in case of plurality of divestment of companies resulting in the assignment of the lease, it remains the responsibility of all the intermediate assigns towards the lessor.

by Clare Raghuram and Sandro Cerato