The code discipline for the transfer of contracts in general in the context of company transfer provides that "unless otherwise agreed, the buyer of the company takes over the contracts stipulated for the operation of the company itself which are not of a personal nature" (Art. 2558 c.c.).
In the silence of the parties, the buyer of the company takes over all existing legal relationships relating to the sold company, with the exclusion only of contracts of a personal nature linked to the figure of the entrepreneur and not to the sold company.
Interpretation problems of the art. 2558 c.c. have made arrangements for the sale of company branches.
It intervened on this point with sentence no. 20417/2016, the III Section. Civil of the Court of Cassation specifying that "In the event that the object of the transfer does not concern the entire company, but rather a branch of it, the principle of the common fate of the assets organized as a unit for the exercise of the business does not suffer any exception , with the consequence that the relationships referable to said branch - i.e. those by their nature objectively determinable, due to the recognizable functional destination for the exercise of the business sector strictly connected to them - must be considered inevitably destined to follow the fate of the organized complex which they access, unless it concerns personal property".
It therefore appears clear that where the parties have failed to exclude certain contractual relationships specific to the transferor's company from the sale of a branch of the latter (where such relationships were not in themselves recognizably extraneous to the transferred business branch, or objectively and recognizably relevant to the business portfolio remaining in the hands of the transferor), said contractual relationships must necessarily be considered transferred, pursuant to art. 2558 of the Civil Code, to the transferee of the corresponding business branch.
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Milano, December 5th 2016.
Avv. Giovanni Babino
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