By Alberto Crivelli, Attorney at Law, Partner at AMTF Avvocati
An entrepreneur who intends to start a business in the restaurant sector will likely find two different types of contracts for acquiring the space necessary to run their business: commercial lease or business branch lease. Although these are separate contracts, both aim to guarantee the availability of a suitable location for carrying out economic activity.
The definition of the term "company" can be found in Article 2555 of the Civil Code, according to which: "A company is the set of assets organized by the entrepreneur for the purpose of carrying out business activities." In other words, as also taught by the majority of case law, the business, understood as universitas, consistsof a set of tangible and intangible assets that are functionally organized into a unified, functional complex for the sole purpose of production. The organizational aspect is particularly important: the assets are organized to achieve a specific purpose, which needs to be clearly identifiable and tangible, and the entrepreneur ensures that there is a relationship of instrumental complementarity between them within a unified productive context. It is precisely this complementary relationship between the elements that allows the company to acquire 'economic potential', a greater exchange value of the business complex - considered as a whole - than the value that would be obtained if the assets were considered individually: this greater exchange value is called goodwill. Goodwill should not be confused with clientele, which are different and non-coinciding concepts: as mentioned, the former indicates the economic potential of the company, while clientele refers to the group of customers actually acquired and retained by the company. The relationship between the property and its appurtenances within the organization of the corporate structure must also be considered as a whole. These premises are fundamental to understanding how the concept of a company applies to the restaurant sector as a commercial activity, where the business activity is not limited to the property in which the activity is carried out, but extends to all the elements necessary for its realization: personnel, raw materials, equipment, and appurtenances.
Business lease means, as stated in Article 1615 of the Italian Civil Code, "The management and enjoyment of the productive asset. An essential prerequisite for the enjoyment of the business or a branch thereof is that "there has been an objective transfer of the business, i.e., the transfer of a complex of assets organized and suitable for use in the exercise of a business activity"(Civil Court 13319/2015). The transferee takes over the legal position of the transferor, which necessarily implies that, at the time of signing the contract, the business already exists in all its constituent elements. Article 2560 of the Italian Civil Code then provides that "The transferor is not released from debts relating to the operation of the transferred business prior to the transfer, unless it appears that the creditors have consented to this, and "In the transfer of a commercial business, the purchaser of the business is also liable for the aforementioned debts if they appear in the mandatory accounting records." The code therefore imposes the rule of joint and several liability between the transferor and the transferee for such debts recorded in the company's books. The only exception to the succession of debts occurs in cases of contracts based on the specific personal qualities of the contractor (so-called intuitu personae), unless there is an express agreement between the transferor and the transferee, accompanied by the consent of the third-party creditor. The legislator has also paid particular attention to the protection of workers, as established by Article 2112, paragraph 5, of the Italian Civil Code, providing a further definition of the business lease agreement from a more protective perspective and in line with the unified vision of the concept of business.
With regard to the contract, the obligations of the parties provide, on the part of the transferee: 1) the prohibition not to change the purpose of the business; 2) the management of the business must be carried out in such a way as to preserve the organization and normal stock levels; 3) payment of the rent; 4) at the end of the relationship, the difference between the initial and final inventory levels is settled financially between the parties, while the contracts held by the lessee are returned to the bare owner. The rent is freely negotiable between the parties and may be modified at various stages of the lease, or may also be determined as a guaranteed minimum, subject to adjustment in favor of the lessor based on percentage thresholds relating to the turnover that the lessee obtains thanks to the business leased to them.
