Ägarförbehåll och verksamhetsöverlåtelser - En utredning av möjligheten att förbehålla sig äganderätten till en verksamhet
Sammanfattning: In the market of capital goods, a retention of title clause is a common and easy way for a creditor to get security for the payment. The purpose of this thesis is to investigate the possibilities for a seller of a business to use a retention of title clause, and get indefeasible protection, when he or she sells the business. A transfer of a business is often associated with long preparations and profound investigations of the company. Furthermore, a business consists of a combination of different assets and components, all of which have their own individual legal regulation. Whether it is possible to reserve the right to repossess an entire business by merely imposing a retention of title on the shares of the business is uncertain. It can however be stated that it is possible to reserve the right to repossess the entire business if the seller distinctly includes all of the assets of the business in the retention of title clause. Nevertheless, the seller must take the individual legal regulation of each asset into account and it is therefore not possible to reserve the right to repossess property fixtures, inventory or personnel. It is on the other hand possible to reserve the right to repossess the shares, leases, intangible assets and equipment that constitute industrial fixtures, among other things. Furthermore, the indefeasible protection of the retention of title is lost if the secured property or assets are at the buyer’s disposal. For example, if the buyer has been granted a right to resell the property. However, it can be stated that the seller of a business may allow the buyer to use and manage the business and its property without the risk of losing the indefeasible protection. To keep the indefeasible protection of the retention of title, the seller must however sign a prohibition of disposal that prohibits the seller from making any significant changes to the business or its property.
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