Pledge of goodwill
The goodwill is an asset that can be used to support the credit of its owner: it can be pledged under the terms of a pledge agreement granted to the creditor lender or supplier. It may also be the subject of a judicial pledge by the creditors of the merchant wishing to benefit from a security interest. This is the case, for example, when the franchisee accumulates a debt of royalties and/or goods to the franchisor.
Conventional
pledge
The pledge is obligatory on the intangible elements of the fund:
- clientele and ridership;
- the name;
- the brand;
- the right to lease.
The pledge agreement is necessarily a deed registered and filed with the registry for registration. If the pledge also relates to industrial or commercial property rights, a special registration must be made with the National Institute of Industrial Property (INPI).
The pledge guarantees the pledged claim on all the elements of the encumbered goodwill. The pledged creditor has two main rights:
- eight days after an unsuccessful demand for payment, a pledged creditor may apply to the commercial court to order the sale of the fund by public auction;
- right: whether the goodwill is sold amicably or at an auction, pledged creditors have a preferential right to the price, which allows them to be paid before other creditors.
preferential
Judicial
pledge
The creditor of a merchant, “whose claim appears to be founded in principle” and who “justifies circumstances likely to threaten its recovery”, may ask the enforcement judge or the President of the Commercial Court for authorization to take a pledge registration on the debtor’s business.
The creditor who has obtained the authorization must make a provisional pledge registration on the debtor’s business within three months. However, it is necessary to confirm this provisional registration by a definitive registration. It must take place within two months of obtaining the enforceable title. This registration confers on the creditor all the rights of a pledged creditor over the goodwill.
