Transfer of goodwill: beware of payment before publications!

The purchaser of a business, who pays the price without waiting for the expiry of the opposition period, is not released with regard to third parties, within the meaning of Article L 141-17 of the Commercial Code.

Under the terms of a compromise subject to conditions precedent, an optical brand undertakes to sell its business to a competing brand and pays it, as a capital allowance, half of the price.

At the signing of the final deed, before the legal advertisements, she pays him part of the balance of the price. The other party is placed in receivership until the end of the opposition period.

Following publication in the BODACC, the tax authorities object to the price.

His claim, the amount of which is greater than the balance of the escrowed price, is not paid to him.

In these conditions, it seeks in court the conviction in solidum of the seller, the buyer and the receiver.

At first instance, the tax authorities dismissed his claim against the purchaser.

On the contrary, before the Court of Appeal, it obtains the conviction of the buyer for the taxes for which the seller remained liable.

The purchaser refers the matter to the Court of Cassation.

In the first place, he criticises the Court of Appeal for having considered that the tax administration’s claim against the purchaser does not amount to a claim for compensation on the grounds that it is based on Article L. 141-17 of the Commercial Code.

According to the buyer, it was therefore appropriate to question the existence of a causal link between the damage suffered and its possible fault.


The High Court dismissed its plea in law, answering that:

the buyer is not released from third parties if he pays his seller before the expiry of the period of ten days following the publication of the assignment from which the creditors of the previous owner benefit to lodge opposition,

the payment made to the seller is unenforceable against the creditors whether or not they have validly objected to the payment of the price.

Secondly, the purchaser complains that the Court of Appeal rejected the claims made against the receiver who did not ensure the lifting of the registration benefiting the tax administration.

The High Court considers that the Court of Appeal deduced exactly from its finding, according to which the opposition of the tax administration had not been duly filed, that the purchaser could not claim to suffer any damage in connection with the acts of the receiver.

Comment:

This decision recalls the requirement of Articles L. 141-12, L. 141-14 and L. 141-17 of the Code of as which protect creditors, whose right of claim could be jeopardized by the sale of the business, by organizing deadlines.

In addition to these deadlines necessary for the protection of creditors, the deadlines that protect purchasers are also included.

Indeed, by application of Article 1684 of the General Tax Code, in the event of transfer, the purchaser may be made jointly liable with the seller “for the payment of income tax relating to the profits made by the latter during the year or the exercise of the session until the day of it …”.

Thus, the 90-day period of tax solidarity, which may be shortened to 30 days, under certain conditions, runs from the publication of the sale referred to in Article

Court of Cassation, Civil, Commercial Chamber, December 4, 2024, No.23-15.786