Legal issues 

Concept, characteristics, essential terms of the agreement for the sale of an enterprise. The concept of an enterprise, its qualifying characteristics. Agreement for the sale of an enterprise: concept, essential conditions, stages of conclusion and execution Essential conditions for the purchase and sale of an enterprise

Concept - under an agreement for the sale of an enterprise, the seller undertakes to transfer ownership of the enterprise as a whole to the buyer as a property complex, with the exception of rights and obligations that the seller does not have the right to transfer to other persons, and the buyer is obliged to accept the property complex and pay a certain amount for it.

Elements of a business sale agreement:

Item – an enterprise as a property complex. The composition of an enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, and work and services (trade name, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract.

In accordance with the law, the composition of the enterprise as the subject of sale does not include the rights obtained by the seller on the basis of a permit (license) to engage in the relevant activity (for example, the right to provide transport, audit services, etc.), unless otherwise established by law or other legal acts.

Subjects:

Seller may be a citizen-entrepreneur or a legal entity to which the enterprise belongs by right of ownership. When selling a property complex owned by a unitary state or municipal enterprise with the right of economic management or the right of operational management, the seller can only be the Ministry of State Property of the Russian Federation or the corresponding authorized body for the management of municipal property as representatives of one or another public owner.

Buyers enterprises can be citizen-entrepreneurs, legal entities, the state, municipalities.

The contract in question must be concluded in writing form by drawing up one document signed by the parties, with the obligatory attachment of an inventory act, a balance sheet, an independent auditor’s opinion on the composition and value of the enterprise, as well as a list of debts (liabilities) included in the enterprise, indicating creditors, nature, size and terms their requirements.

Inventory is a check of the actual presence of assets listed on the balance sheet of an enterprise (tangible and intangible assets), their safety, a description of the main features and a determination of the current state. The inventory must be complete, that is, carried out in relation to all property, all debts and claims included in the enterprise, even those that are not subject to transfer to the buyer by force of law or by agreement of the parties. Inventory is one of the basis for the valuation of the enterprise, and it can serve as the basis for the price requirements stated by the seller.


The inventory report is supplemented by the conclusion of an independent auditor on the composition and financial condition of the enterprise. An audit confirms the reliability of the enterprise's balance sheet.

An agreement for the sale of an enterprise is subject to state registration and is considered concluded from the moment of such registration.

Condition about price is an essential condition of the contract for the sale of the enterprise. If there is no price clause in the contract, the contract is considered not concluded. When determining the price of an enterprise, not only the cost of its constituent property is taken into account. The price of an enterprise as a business directly depends on its reputation. Outwardly, this appears as the price of individualization signs, which can sometimes be comparable to the price of the transferred material assets or may even exceed it.

Term is not an essential condition.

A contract for the sale of an enterprise is a type of contract for the sale of real estate. To the extent that the sale of enterprises is not defined by paragraph 8 of the Civil Code of the Russian Federation, the rules of the Civil Code of the Russian Federation on the sale of real estate are applied to the sale of an enterprise. Therefore, to the contract for the sale of an enterprise, first of all, special provisions of Art. 559-566 of the Civil Code of the Russian Federation, if they are insufficient - the rules of the Civil Code of the Russian Federation on the sale of real estate and only then - the general provisions on the purchase and sale.

Under the agreement for the sale of an enterprise, the seller undertakes to transfer the ownership of the enterprise as a whole to the buyer as a property complex (Article 132 of the Civil Code of the Russian Federation), with the exception of rights and obligations that the seller does not have the right to transfer to other persons.

The Civil Code of the Russian Federation does not determine the parties to the contract for the sale of an enterprise. But based on the fact that an enterprise is understood as a property complex used for carrying out business activities and including all types of property intended for such activities, it should be assumed that the parties to this agreement, or one of the parties, are business entities.

The essential terms of the contract for the sale of an enterprise are the conditions regarding the composition and value of the enterprise being sold, i.e., a precise definition of the elements of the property complex. They are determined in the contract on the basis of a complete inventory of the enterprise, carried out in accordance with the established rules for such an inventory.

An essential condition of the contract for the sale of an enterprise is the price condition. In this case, the general provision on the price in the contract for the sale of real estate applies (Article 555 of the Civil Code of the Russian Federation), according to which, in the absence of a price condition agreed upon by the parties in writing, the contract for its sale is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation do not apply.

The price of the enterprise is determined by the parties freely on the basis of a complete inventory of the enterprise and an audit report on its composition and cost.

The price of an enterprise as a property complex located on a land plot (buildings, structures, etc.) includes the price of the corresponding part of the land plot or the right to it transferred with this real estate. This rule applies if a different procedure for establishing the price of real estate is not determined by agreement or established by law.

According to paragraph 1 of Art. 560 of the Civil Code of the Russian Federation, a contract for the sale of an enterprise is concluded in writing by drawing up one document signed by the parties. In accordance with paragraph 1 of Art. 560 of the Civil Code of the Russian Federation, the contract is subject to state registration and is considered concluded from the moment of such registration.

Necessary annexes to the contract are documents certifying the composition and value of the enterprise: an inventory act, a balance sheet, an independent auditor’s conclusion on the composition and value of the enterprise, a list of all debts (liabilities) included in the enterprise, indicating creditors, the nature, size and timing of them requirements. In the absence of such documents, state registration of the agreement may be denied, i.e. the contract will not be concluded.

Before transferring the enterprise to the buyer, one of the parties to the agreement for the sale of the enterprise must notify in writing the creditors of those obligations that are included in the enterprise being sold. If the debts were transferred to the buyer without the consent of the creditor, then after the transfer of the enterprise the buyer and the seller bear joint liability for such debts included in the enterprise.

The composition of the enterprise being sold is subject to transfer to the buyer, which is determined by agreement of the parties. If the agreement of the parties does not determine the composition of the transferred property, then the property, rights and obligations that are reflected in the inventory report, balance sheet and list of all debts included in the enterprise are subject to transfer to the buyer.

", "municipal unitary enterprise", "state enterprise".

At the same time, in civil law literature one can still find a view of the sale of an enterprise as the sale of a subject of civil rights and obligations.

Thus, the use of the term “enterprise” to designate a subject of civil rights is allowed by I.V. Eliseev.

N.I. Klein notes: “In Art. 132 of the Civil Code, based on its name, defines an enterprise as an object of civil rights. However, the mention in the definition of rights of claim, debts and a number of exclusive rights of the enterprise gives reason to believe that in Art. 132 of the Civil Code essentially contains the definition of an enterprise as a subject of civil rights. This conclusion is based on the fact that claims, debts, and exclusive rights can only belong to the subject of law.”

Criticizing the position of N.I. Klein, V.V. Vitryansky rightly notes that, firstly, the enterprise itself, not being a legal entity, in principle cannot have any rights and obligations, and secondly, it is necessary to see the difference between the concepts of “enterprise” (as a property complex, an object of civil rights) and “state or municipal unitary enterprise” (as an organizational and legal form of a commercial organization, a subject of civil rights and obligations).

The concept of a purchase and sale agreement for an enterprise. By enterprise purchase and sale agreement the seller undertakes to transfer the ownership of the enterprise as a whole to the buyer as a property complex, with the exception of rights and obligations that the seller does not have the right to transfer to other persons, and the buyer undertakes to accept the enterprise under the transfer deed and pay for it (clause 1 of Article 559 of the Civil Code of the Russian Federation).

Legal regulation of the purchase and sale agreement of an enterprise. The rules governing relations arising from the purchase and sale agreement of an enterprise are contained in § 8 of Chapter 30 of the Civil Code of the Russian Federation.

Relations related to the sale of an enterprise are subject to subsidiary application of the rules governing the contract for the sale of real estate (§ 7 of Chapter 30 of the Civil Code of the Russian Federation), and in the absence of such, the general provisions on purchase and sale (§ 1 of Chapter 30 of the Civil Code of the Russian Federation).

In addition, the general provisions of the Civil Code of the Russian Federation on transactions, obligations and contracts apply to the agreement.

It is necessary to take into account that, according to Art. 566 of the Civil Code of the Russian Federation, the rules of the Civil Code of the Russian Federation on the consequences of the invalidity of transactions and on the amendment or termination of a purchase and sale agreement, providing for the return or recovery in kind of what was received under the agreement on one side or on both sides, apply to the agreement for the sale of an enterprise, if such consequences do not significantly violate the rights and legally protected interests of creditors of the seller and buyer, other persons and do not contradict the public interests. This norm is subject to application, as a rule, if enterprises are objects of social and cultural significance, include dormitories, which the previous owner in the event of restitution will not be able to maintain, which will entail a deterioration in the housing rights of citizens, etc.

Legal characteristics of the purchase and sale agreement of an enterprise. The purchase and sale agreement of an enterprise is formal, paid, mutual.

Essential terms of the purchase and sale agreement for an enterprise. The conditions in the absence of which the purchase and sale agreement of an enterprise is considered not concluded include provisions on its subject and price.

Subject of the enterprise purchase and sale agreement. The subject of the agreement, which determined its identification as a separate type of purchase and sale, is an enterprise.

An enterprise is understood as a property complex recognized as real estate as a whole and used to carry out business activities (clause 1 of Article 132 of the Civil Code of the Russian Federation).

The enterprise as a property complex includes (paragraph 2, paragraph 2, article 132 of the Civil Code of the Russian Federation):

  • all types of property intended for its activities (including land plots, buildings, structures, equipment, inventory, raw materials, products), including property rights;
  • debts (obligations) (this is an important specificity of the contract);
  • means of individualization of the seller and his goods, works and services (company name, trademarks, service marks), as well as the rights to use such means of individualization belonging to him on the basis of a license. These objects are transferred to the buyer, unless otherwise provided by the contract;
  • other exclusive rights to the results of creative activity (patent rights, related rights, etc.). These objects are transferred to the buyer, unless otherwise provided by the contract.

At the same time, according to paragraph 3 of Art. 559 of the Civil Code of the Russian Federation, the rights of the seller, obtained by him on the basis of a permit (license) to engage in the relevant activity, are not subject to transfer to the buyer of the enterprise, unless otherwise established by law or other legal acts. The transfer to a buyer as part of an enterprise of obligations, the fulfillment of which by the buyer is impossible in the absence of such permission (license), does not relieve the seller from corresponding obligations to creditors. For failure to fulfill such obligations, the seller and buyer are jointly and severally liable to creditors.

The subject of the purchase and sale agreement can also be a part of the enterprise: a workshop, a workshop, etc. (Clause 2 of Article 132 of the Civil Code of the Russian Federation). In this case, the alienated property must form a technologically unified whole, a closed production cycle. Complexes of things (machines, buildings) that do not have the properties of closed production do not form the subject of the contract in question. The general provisions on purchase and sale will apply to the alienation of such things.

The Civil Code of the Russian Federation establishes increased requirements for detailing the subject of the contract. According to Art. 561 of the Civil Code of the Russian Federation, the contract for the sale of an enterprise determines the composition and cost of the enterprise being sold on the basis of a complete inventory of the enterprise, carried out in accordance with the established rules for such an inventory.

Duration of the purchase and sale agreement for the enterprise. The term in the purchase and sale agreement of an enterprise does not refer to the essential conditions. The general provisions of the Civil Code of the Russian Federation on deadlines in a transaction and obligations apply to the term (Articles 190-194, 314).

Price of the purchase and sale agreement of the enterprise. The peculiarities of the purchase and sale agreement for an enterprise include the fact that the price of the enterprise is an essential condition (Article 555 of the Civil Code of the Russian Federation).

If there is no price clause in the purchase and sale agreement of an enterprise, the contract is considered not concluded. At the same time, the rules for determining the price contained in clause 3 of Art. 424 of the Civil Code of the Russian Federation, according to which, in the absence of a price clause in the contract, the goods must be paid at the price that, under comparable circumstances, is usually charged for similar goods, do not apply.

The parties to the contract are, as a rule, free to set the price of the enterprise, unless otherwise provided by law.

Parties to the purchase and sale agreement for an enterprise. The parties to the purchase and sale agreement of an enterprise are the seller and the buyer.

The seller, as a rule, is the owner of the property or a person authorized by the owner (representative under a power of attorney, attorney under a contract of agency, etc.).

The seller in most cases is commercial legal entities or individual entrepreneurs. When selling state and municipal enterprises, the sellers are the relevant state authorities and local governments.

Form of an enterprise purchase and sale agreement.

There are special requirements for the form of the purchase and sale agreement for an enterprise.

According to paragraph 1 of Art. 569 of the Civil Code of the Russian Federation, a contract for the sale of an enterprise must be concluded in writing by drawing up one document signed by the parties.

Failure to comply with the form of the agreement for the sale of an enterprise entails its invalidity (clause 2 of Article 560 of the Civil Code of the Russian Federation). This is also a feature of the contract.

The specificity of the contract form also lies in the fact that the following documents must be attached to it (clause 2 of Article 561 of the Civil Code of the Russian Federation):

  • inventory act;
  • balance sheet;
  • conclusion of an independent auditor on the composition and value of the enterprise;
  • a list of all debts (liabilities) included in the enterprise, indicating the creditors, the nature, size and timing of their claims.

In addition, an additional requirement when making a transaction is the need for state registration of the transfer of ownership of the enterprise and state registration of the purchase and sale transaction (clause 3 of Article 560 of the Civil Code of the Russian Federation).

That is, the agreement will be recognized as concluded from the moment of its state registration. Failure to comply with the requirement for state registration entails the non-conclusion of the purchase and sale agreement of the enterprise, but not its invalidity, since in paragraph 3 of Art. 560 of the Civil Code of the Russian Federation, which establishes the mandatory state registration of such an agreement, does not indicate that failure to comply with this requirement will entail the recognition of the agreement as invalid.

The list of documents submitted for state registration of rights and transactions is established by the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.” In addition, when state registration of a purchase and sale agreement for an enterprise, it is necessary to be guided by the order of the Ministry of Justice of the Russian Federation dated March 4, 2005 No. 16 “On approval of the Rules for making records of rights to an enterprise as a property complex and transactions with it in the Unified State Register of Rights to Real Estate and Transactions with him and the interaction between the Federal Registration Service and its territorial bodies.”

As for the state registration of the buyer's ownership of the enterprise, the Civil Code of the Russian Federation establishes a number of rules specific to this agreement (Article 564 of the Civil Code of the Russian Federation).

Firstly, unless otherwise provided by the contract for the sale of an enterprise, ownership of the enterprise passes to the buyer and is subject to state registration immediately after the transfer of the enterprise to the buyer.

Secondly, in cases where the contract provides for the seller to retain ownership of the enterprise transferred to the buyer until payment for the enterprise or until other circumstances occur, the buyer has the right, before the transfer of ownership rights to him, to dispose of the property and rights that are part of the transferred enterprise, in that to the extent necessary for the purposes for which the enterprise was acquired. That is, in fact, the buyer has the right to exercise the powers of the owner before the transfer of ownership.

Responsibilities of the seller under the purchase and sale agreement of an enterprise.

The seller under the purchase and sale agreement of an enterprise is obliged to:

1. Transfer the enterprise.

According to Art. 563 of the Civil Code of the Russian Federation, the transfer of an enterprise from the seller to the buyer is carried out according to a transfer deed signed by the parties.

The transfer deed must indicate:

  • data on the composition of the enterprise;
  • data on notification of creditors about the sale of the enterprise;
  • information about identified deficiencies in the transferred property;
  • a list of property, the transfer obligations of which were not fulfilled by the seller due to its loss.

The enterprise is considered transferred to the buyer from the day the transfer deed is signed by both parties. Consequently, the seller’s evasion from signing the transfer deed on the terms provided for in the contract is recognized as a refusal to fulfill the obligation to transfer the enterprise.

From the moment the enterprise is transferred, the risk of accidental loss or accidental damage to the property transferred as part of the enterprise passes to the buyer.

As for preparing an enterprise for transfer, the Civil Code of the Russian Federation establishes: preparing an enterprise for transfer, including drawing up and submitting a transfer act for signing, is the responsibility of the seller and is carried out at his expense, unless otherwise provided by the contract.

If the seller fails to fulfill the obligation to transfer the enterprise, the buyer has the right to present the same requirements as under the general provisions of the purchase and sale agreement (see Chapter 1).

2. Contact the registration authority.

The seller must contact the registration authority for state registration of the transfer of rights and the contract itself.

If the seller evades state registration of the right and transaction, the buyer has the right:

  • demand from the court a decision on registration of the transaction (if it is completed in the proper form) and the right;
  • demand the application of a measure of liability (compensation for losses caused by a delay in registration).

3. Transfer the enterprise free from the rights of third parties.

This is not about complete freedom of enterprises from encumbrances (since the subject of the agreement also includes debts), but about warning about all existing rights of third parties and transferring the debt properly.

In case of transfer to the buyer as part of an enterprise of the debts (obligations) of the seller, which were not specified in the agreement for the sale of the enterprise or the transfer act, the buyer has the right:

  • demand a reduction in the purchase price unless the seller proves that the buyer knew about such debts (obligations) at the time of concluding the contract and transferring the enterprise. The implementation of this norm may cause difficulties, because , it seems that the buyer cannot be unaware of the debts, since they are part of the enterprise and are indicated in the agreement and the transfer deed;

4. Transfer the enterprise, the composition of which corresponds to the agreement.

Violations of the conditions regarding the composition of the enterprise can be divided into two groups.

The first group - the absence of separate property was stipulated in the transfer deed.

In this case, the buyer has the right (clause 2 of Article 565 of the Civil Code of the Russian Federation):

  • demand the application of a measure of liability (compensation for damages).

The second group - the absence of separate property (or the presence of additional debts as part of the property) was not specified in the transfer deed and was discovered after the transfer of the enterprise.

In this case (unless the seller proves that the buyer knew about such debts (obligations) at the time of concluding the contract and transferring the enterprise), the buyer has the right to choose, unless otherwise provided by the contract:

  • demand a corresponding reduction in the purchase price;
  • demand replenishment or replenishment of missing property;
  • terminate the contract (if the consequences of termination do not significantly violate the rights and interests of other persons);
  • demand the application of a measure of liability (compensation for damages).

In judicial practice, the question arose whether the buyer has the right to demand restrictions on the limits of succession in the event of the transfer of debts (obligations of the seller) as part of an enterprise that were not specified in the agreement for the sale of the enterprise or the transfer deed.

Thus, in the event of the transfer of debts (obligations) of the seller as part of an enterprise, which were not specified in the agreement for the sale of the enterprise or the transfer act, the buyer has the right to demand a reduction in the purchase price, and not limit the limits of succession.

5. Transfer the enterprise that complies with the terms of the quality agreement.

Just as with the previous obligation, there are two possible options for violating the terms of the quality contract.

First option. The shortcomings were specified in the transfer deed.

  • demand a corresponding reduction in the purchase price, unless the right to present other demands in such cases is provided for in the contract of sale of the enterprise;
  • demand the application of a measure of liability (compensation for damages).

Second option. The defects were not specified in the transfer deed.

In this case, the buyer has the right:

  • demand a proportionate reduction in the purchase price;
  • demand the elimination of deficiencies free of charge within a reasonable time;
  • demand reimbursement of your expenses to eliminate deficiencies;
  • demand the application of a measure of liability (compensation for damages);
  • if it is established that the enterprise, due to shortcomings for which the seller is responsible, is not suitable for the purposes specified in the sales contract, and these shortcomings are not eliminated by the seller under the conditions, in the manner and within the time limits established in accordance with the Civil Code of the Russian Federation, other laws, etc. legal acts or an agreement, or the elimination of such shortcomings is impossible - to demand in court the termination or modification of the agreement for the sale of an enterprise and the return of what was performed by the parties under the agreement (clause 5 of Article 565 of the Civil Code of the Russian Federation). It is necessary to take into account that the consequences of changing or terminating the contract should not significantly violate the rights and interests of other persons (Article 566 of the Civil Code of the Russian Federation).

6. Notify and obtain the consent of creditors about the transfer of debts as part of the enterprise before its transfer.

The seller bears this obligation not in relation to the buyer, but in relation to his creditors (Clause 1 of Article 562 of the Civil Code of the Russian Federation).

If the creditor was notified of the sale of the enterprise, but did not inform the seller or buyer in writing of his consent to the transfer of debt, he has the right, within three months from the date of receipt of the notification, to choose (clause 2 of Article 562 of the Civil Code of the Russian Federation):

  • demand termination or early fulfillment of the obligation and compensation by the seller for losses caused by this;
  • demand recognition of the agreement for the sale of the enterprise as invalid in whole or in the relevant part.

If the creditor was not notified of the sale of the enterprise, then he has the right to present these claims within a year from the day when he learned or should have learned about the transfer of the enterprise by the seller to the buyer (clause 2 of Article 562 of the Civil Code of the Russian Federation).

In addition, the interests of the creditor are guaranteed by the rule according to which, after the transfer of the enterprise to the buyer, the seller and the buyer bear joint liability for the debts included in the transferred enterprise, which were transferred to the buyer without the consent of the creditor (clause 4 of Article 562 of the Civil Code of the Russian Federation).

Obligations of the buyer under the purchase and sale agreement of the enterprise.

Under a purchase and sale agreement for an enterprise, the buyer performs obligations similar to the obligations of the buyer under a real estate purchase and sale agreement. The consequences of failure to fulfill duties are also the same. Therefore, we will limit ourselves to only listing the buyer’s responsibilities.

The buyer under the purchase and sale agreement of an enterprise is obliged to:

  1. contact the registration authority;
  2. take over the enterprise under a transfer deed;
  3. pay for the enterprise;
  4. notify the seller of a violation of the terms of the quality contract.

Under the agreement for the sale of an enterprise, the seller undertakes to transfer the ownership of the enterprise as a whole as a property complex to the buyer, with the exception of the rights and obligations that the seller does not have the right to transfer to other persons (clause 1 of Article 559 of the Civil Code). The species-forming feature that makes it possible to distinguish an agreement for the sale of an enterprise into a separate type of purchase and sale agreement is the specificity of the subject of the agreement - the enterprise being sold as a single property complex. The sale of an enterprise involves the transfer to the buyer not only of buildings and equipment, but also of the rights and obligations of the seller tied to the material basis of production. The complexity of the resulting relationships requires special regulation.
An enterprise is a property complex used to carry out business activities. The enterprise includes all types of property intended for its activities: land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, works and services (company name, trademarks, service marks) and other exclusive rights (Article 132 of the Civil Code).
But, in addition, an enterprise is a living, profit-generating business enterprise, which includes clientele, reputation, trade and technological secrets, sales markets, etc. The likelihood that the clientele will remain with the company being sold is indicated using the legal categories of business reputation and is a special intangible element of the enterprise that can only be alienated when the enterprise as a whole is sold.
Thus, although an enterprise is recognized as real estate, heterogeneous elements are legally interconnected in it for business purposes: property, labor, intangible assets, which individually have their own legal regime.
The subject of the contract for the sale of an enterprise is the enterprise as a whole as a property complex, with the exception of the rights and obligations that the seller does not have the right to transfer to other persons. Therefore, the composition of the enterprise as the subject of sale does not include the rights obtained by the seller on the basis of a license to engage in the relevant activity. Such rights are not subject to transfer to the buyer of the enterprise, unless otherwise provided by law or other legal acts. The transfer to a buyer as part of an enterprise of obligations, the fulfillment of which by the buyer is impossible in the absence of such a license, does not relieve the seller from corresponding obligations to creditors. For failure to fulfill such obligations, the seller and the buyer bear joint liability to creditors (clause 3 of Article 559 of the Civil Code).
As a general rule, the seller of an enterprise can be an individual entrepreneur or a legal entity to which the enterprise belongs by right of ownership. When selling a property complex owned by a unitary state or municipal enterprise with the right of economic management or the right of operational management, the seller can only be an authorized body acting on behalf of the relevant public owner, but not the unitary enterprise itself (Article 5 of the Law on the Privatization of State and Municipal Property ). Buyers of an enterprise can be citizen entrepreneurs, legal entities, the state, and municipalities.
Before concluding this agreement, the parties must take preliminary actions to certify the composition of the enterprise being sold, an audit of its activities and an assessment of the enterprise. Certification of the composition of an enterprise is achieved by conducting a complete inventory of it (clause 1 of Article 561 of the Civil Code). Inventory is necessary to verify the actual presence of assets listed on the balance sheet of an enterprise (tangible and intangible assets), their safety, describe the main features and determine the current state. In addition, this is one of the ways to assess the composition of an enterprise. The audit of an enterprise aims to establish the compliance of the financial statements of the enterprise with the stipulated criteria, and its business transactions with the requirements of the law. An audit confirms the reliability of the enterprise's balance sheet.
The valuation of the enterprise is of particular importance, since the price condition is an essential condition of the contract for the sale of the enterprise. In addition, it is more complicated than the valuation of other types of real estate, since we are talking about the valuation of a business, the price of which depends on a number of factors (static and dynamic). As a result of these actions, before signing a contract for the sale of an enterprise, the following documents must be drawn up:
1) inventory act;
2) balance sheet;
3) the conclusion of an independent auditor on the composition and value of the enterprise;
4) a list of debts (liabilities) included in the enterprise, indicating the creditors, the nature, size and timing of their claims;
5) document on the assessment of the enterprise (clause 2 of Article 561 of the Civil Code).
These documents serve as a mandatory annex to the contract for the sale of the enterprise, which is concluded in writing by drawing up one document signed by the parties. The absence of any of these documents is regarded as non-compliance with the form of the contract, which entails its invalidity (clause 2 of Article 560 of the Civil Code). An agreement for the sale of an enterprise is subject to state registration and is considered concluded from the moment of such registration.
The peculiarity of this agreement, which distinguishes it from a contract for the sale of real estate, is that the sale of an enterprise is accompanied, on the one hand, by the assignment of the rights of claims of the seller to the buyer, and on the other, by the transfer of debts to him, which requires the consent of the creditors. Therefore, the Civil Code provides provisions defining a special procedure for notifying creditors and obtaining their consent to sell an enterprise, as well as the consequences of violating this procedure (Article 562). Notification of creditors for obligations included in the enterprise must be made in writing before the transfer of the enterprise by the seller to the buyer. The creditor's response must also be given in writing (clause 2 of article 391, clause 1 of article 389 of the Civil Code).
A duly notified creditor, within 3 months from the date of receipt of the notification, has the right to demand either termination or early fulfillment of obligations and compensation by the seller for losses caused by this, or recognition of the agreement for the sale of an enterprise as invalid in whole or in the relevant part (clause 2 of Article 562 of the Civil Code). If the creditor does not inform the seller of anything or does not state one of the listed requirements, he will be considered a creditor who has not given consent to transfer the debt from the seller to the buyer of the enterprise, and the seller of the enterprise remains a party to such obligations. However, if the obligation is fulfilled by the buyer of the enterprise, the creditor will be obliged to accept such fulfillment (clause 1 of Article 313 of the Civil Code). Until the creditor agrees to transfer the debt or the obligations are not properly fulfilled, the seller and the buyer bear joint liability to the creditor (clause 4 of Article 562 of the Civil Code).
If the creditor was not properly notified of the sale of the enterprise, he has the right, within one year from the day when he learned or should have learned about the transfer of the enterprise by the seller to the buyer, to declare one of the following demands: for termination or early fulfillment of obligations and compensation by the seller for damage caused these losses; on recognizing the contract for the sale of an enterprise as invalid in whole or in part.
The transfer of an enterprise is carried out according to a transfer deed, which indicates data on the composition of the enterprise, notification of creditors about the sale of the enterprise, identified shortcomings of the transferred property, as well as a list of property, the transfer obligations of which were not fulfilled by the seller due to its loss (clause 1 of Article 563 GK). Preparing the enterprise for transfer, including drawing up and submitting the transfer act for signing, is the responsibility of the seller and is carried out at his expense, unless otherwise provided by the contract.
The enterprise is considered transferred from the day the transfer deed is signed by both parties. From this moment on, the risk of accidental death or accidental damage to property within the enterprise passes to the buyer. If any of the parties to the contract for the sale of an enterprise refuses to sign the act of transfer of the enterprise, then this will be considered a unilateral refusal of the seller to fulfill the obligation to transfer the enterprise, and the buyer to refuse the obligation to accept the enterprise (clause 1 of Article 556 of the Civil Code).
When the contract provides for the seller to retain ownership of the enterprise transferred to the buyer until payment or until other circumstances occur, the buyer has the right, before the transfer of ownership rights to him, to dispose of the property and rights included in the transferred enterprise to the extent necessary for the purposes for the sake of which the enterprise was acquired (clause 3 of Article 564 of the Civil Code).
Ownership of the enterprise passes to the buyer from the moment of its state registration. Unless otherwise provided by the contract for the sale of an enterprise, ownership of the enterprise passes to the buyer and is subject to state registration immediately after the transfer of the enterprise to the buyer (Article 564 of the Civil Code).
Consequences of transfer by the seller and acceptance by the buyer under the transfer deed of an enterprise, the composition of which does not correspond to that provided for in the contract, i.e. transfers of an enterprise with defects are determined on the basis of the general rules on purchase and sale provided for in Art. 460-462, 466, 469, 475, 479 of the Civil Code, unless otherwise follows from the agreement or is not provided for by law (Article 565 of the Civil Code). When an enterprise is transferred and accepted under a transfer deed, which contains information about the identified shortcomings of the enterprise and about lost property, the buyer has the right to demand a corresponding reduction in the purchase price of the enterprise. The buyer has the right to demand a reduction in the purchase price also in the event that debts (obligations) of the seller are transferred to him as part of the enterprise, which were not specified in the agreement or transfer act, unless the seller proves that the buyer knew about such debts at the time of concluding the agreement and transferring the enterprise. The seller, having received notification from the buyer about the shortcomings of the property transferred as part of the enterprise, or the absence in this composition of certain types of property to be transferred, has the right to immediately replace the property of inadequate quality or provide the buyer with the missing property.
Taking into account the specifics of the agreement for the sale of an enterprise and its special socio-economic significance, the legislator significantly limited the rights of the parties to amend or terminate the agreement and apply the consequences of the invalidity of the transaction. The buyer has the right in court to demand termination or modification of the contract for the sale of the enterprise and the return of what was performed by the parties under the contract, if it is established that the enterprise, due to shortcomings for which the seller is responsible, is unsuitable for the purposes specified in the contract, and these shortcomings are not eliminated by the seller on conditions, in the manner and within the time limits established by the Civil Code, other laws, other legal acts or an agreement, or the elimination of such shortcomings is impossible (clause 5 of Article 565 of the Civil Code). The rules of the Civil Code on the consequences of the invalidity of transactions and on the amendment or termination of a purchase and sale agreement, providing for the return or recovery in kind of what was received under the agreement on one side or on both sides, apply to the agreement for the sale of an enterprise only if such consequences do not significantly violate the rights and protected by law, the interests of creditors of the seller and buyer, other persons and do not contradict the public interests (Article 566).

Transactions related to the purchase and sale of goods and services are carried out all the time today. One of the objects of acquisition and sale may be operating enterprise.

Regardless of the object and nature of the transaction, agreement, which must be drawn up in accordance with the requirements of the legislator.

Features of purchase and sale

The economic structure of the country has recently undergone changes, so the law introduced the institution of selling an enterprise as a property complex recognized as real estate.

As essential conditions prescribed in the contract, it is possible to highlight the composition and cost of enterprises. As mandatory applications The contract can include an inventory act, a balance sheet from the accounting department, and a conclusion drawn up by an independent auditor related to the structure and value of the enterprise.

To these is added a list of debt obligations that are included in the company and contain information about creditors, characteristics, size and terms.

As part of this transaction, the seller has certain obligations:

  • preparing the company for transfer to the buyer and drawing up the transfer act (these provisions are indicated within the framework of Article 536 of the Civil Code of the Russian Federation);
  • notification of creditors about the sale of the enterprise, this is stated in the provisions of Art. 526. Civil Code of the Russian Federation, otherwise the seller will be jointly and severally liable;
  • transfer of ownership to the buyer and direct transfer of the company to the new legal owner.

If the enterprise is transferred with an insufficient amount of property different from that specified in the transfer deed, the buyer has the right to demand a reduction in the purchase price of the enterprise.

If the sale transaction is declared invalid, the rules on return are used only if the consequences do not lead to a violation of the rights and interests of creditors.

As subject of the contract The sale is carried out directly by the enterprise itself, considered as a single property complex. Of course, all its elements will pass into the ownership and use of the buyer during the transaction.

As the only exception are the rights that are obtained by the seller for the purpose of engaging in certain types of activities. In general, the enterprise acts as a type of real estate that has specific characteristics. Therefore, the law contains some features for regulating transactions under it.

They consist in the fact that in the process of implementation there is a sale of not only material assets, but also the rights and responsibilities assigned to it.

For the sale of a company, as for any other sales transaction, it is provided special form of contract. If its rules and regulations are not observed, it becomes invalid and loses legal force. In order for an agreement to be considered concluded, even before signing, the parties must begin to consider certain documents:

  • act related to inventory;
  • balance sheet;
  • an independent audit report related to a description of the structure and price of the organization;
  • a list of all debt obligations that are part of the enterprise.

The Civil Code of the Russian Federation contains certain rules that regulate special procedures for notifying creditors, as well as the likely consequences of neglecting them.

Concept and characteristics

A contract for the sale of an enterprise is a document on the basis of which the seller is assigned an obligation associated with the transfer of the company as a property complex into the ownership of the seller.

The exception in this case is rights and obligations that the seller cannot transfer. The implementation process in this case implies the transfer to the buyer of not only skills and equipment, but also rights with obligations that have a material link.

Due to the complexities of relationships that arise within this procedure, it is required special regulation.

In this case, the enterprise is property complex which is used for commercial purposes. It includes all types of property:

  • plots of land;
  • buildings and constructions;
  • inventory;
  • equipment;
  • raw materials;
  • goods produced;
  • debentures;
  • trademarks;
  • rights of claim.

In addition to all these components, the enterprise is a business venture capable of generating profit. On this basis, it includes the customer base, reputation, trade secrets and technologies, and sales markets.

When is considered a prisoner?

An agreement related to the sale of a commercial company may be considered concluded from the moment it occurs state registration. In addition to this, the transfer of ownership to the buyer is also subject to such registration procedure.

This registration is formalized within the framework of an independent act, which differs from the registration of a sales agreement. The moment at which the enterprise passes from one hand to another is the day on which the parties signed the transfer deed.

From now on, the buyer assumes the risk of accidental death and damage to property. Until registration, the buyer only receives the right to use the property to the extent necessary to solve commercial problems.

Completed sample

A completed sample of this document contains several points and sections. In the upper part in the center the name “purchase and sale agreement” is indicated, the line below indicates the place and date of preparation.

  1. Subject of the agreement. Here the real estate being sold and purchased is characterized from various positions and points of view.
  2. Duties of the parties. Here are the clauses on the basis of which the seller and buyer are obliged to comply with certain aspects.
  3. Cost and procedure for settlement actions. The cost criterion is indicated, as well as when the buyer undertakes to pay the amount.
  4. Responsibility of the parties. For the fact of late payment, the buyer pays a fine, the amount of which is a certain amount from the value of the contract.
  5. Dispute resolution procedure. During the transaction, disputes and disagreements may arise that must be resolved. The order in which this happens is specified within the framework of this paragraph.
  6. Final Features. We are talking about applications, which can be an inventory act, a balance sheet, an auditor’s report, a list of debts.

After specifying each of these points, the addresses and bank details of the parties are specified in detail - the person acquiring the company and the person who is selling it. Upon completion, signatures and seals are affixed.