Document d'inscription : Nantissement de fonds de commerce
The Procedures guide allows entrepreneurs and decision-makers to have a reliable, precise and up to date overview of legal procedures and measures concerning commercial formalities to be undertaken. It is broken down into 6 sections in which you can find information and documentation required for formalities with Registry Offices at the Commercial Courts.
Priority of the seller and pledge of business assets
The creditor must require registration with the clerk of the commercial court within fifteen days of the establishing instrument. The fifteen-day deadline must be observed under "risk of invalidation". This short deadline is for the signature date of the instrument and not for the registration date.
When the legal instrument contains several dates, the time limit commences on the later of these dates. Calculation of the time limit is made in accordance with the rules of Articles 640 and 642 of the Code of Civil Procedure.
Registration must be undertaken with the clerk of the commercial court of the jurisdiction in which the business is operated: the place of operation includes to where the business is significantly open to a clientele, and not to where the intellectual management of the business is operated.
The same formality must be accomplished with the clerk of the commercial court in the jurisdiction in which each of the branches of the business included in the pledge are located.
Documents to be forwarded to the clerk of the court by the lender
THE LEGAL INSTRUMENT
This means either the legal instrument containing the sale of the business or the establishing legal instrument of the pledge. A simple promise to sell or of pledge is not sufficient.
If the legal instrument is under private seal, an original bearing the signatures of the parties and the reference that registration is on file with the clerk of the commercial court.
Article 22 of the Law of 5 July 1996, states that an artisanal business can be the subject of a pledge in the conditions and forms anticipated for commercial businesses. Paragraph 3 of this Article sets forth the elements which may be included in a pledge on an artisanal business: brand name, professional name, lease rights, clientele, real and professional property. . .
N.B. : the Law of 5 January 2006 on agricultural orientation restores Article L. 311-3 of the Rural Code and introduces the notion of "agricultural business". This Article states that the business operated in the exercise of an agricultural activity as defined in Article L. 311-1 of the Rural Code referred to as "agricultural funds" can be created by the operator, that these civil funds, can be the subject of a pledge under the conditions and according to the forms anticipated for the pledge of commercial funds. The methods for registration of this pledge are anticipated by a Decree of 1 August 2006.
THE REGISTRATIONS FORMS
The relevant form must be filed in duplicate with the clerk of the court.
Effects of registration
Registration maintains the security for ten years. It may be renewed prior to the expiration of this period. The renewal formalities are the same as those defined for registration, however the creditor only files two forms specifying that the required registrations are in renewal of the prior ones.
Renewal must exactly duplicate the first registration. In the event of corrections of names, the amount of the debt and designation of covered elements, the clerk of the court will require documentary evidence.
Necessary for reference in the margins of the registration: precedence and subrogations, evidence of which must be provided to the clerk of the court by certified or recorded instruments.
In the event of movement of funds, the seller or secured creditor must, within fifteen days of notification made to him by the owner or from the day when he had knowledge of the movement, to make reference, in the margins of the existing registration, the new site of the funds, and, if such was transferred to another jurisdiction, to carry forward to its primary registration date with reference to the new site on the register of the clerk of the court of such jurisdiction.
Apart from cases expressly anticipated by law, other modifications can be marginally referenced (ex.: change in name of one of the parties or of debt restructuring).
(COSTS INCLUDING APPLICABLE TAXES FOR SELLER'S SECURITY, PLEDGE ON A BUSINESS, AGRICULTURAL FUNDS AND ARTISANAL FUNDS)
Payment to the order of the relevant GREFFE DU TRIBUNAL DE COMMERCE.
REGISTRATION (including postal costs)
For a debt of less than 20,800 euros: 28.03 euros.
For a debt equal to or exceeding 20,800 and less than 41,600 euros: 102.91 euros.
For a debt exceeding 41,600 euros: 151.27 euros.
REFERENCE TO PRECEDENCE, SUBROGATION AND RENEWAL (including postal costs)
For a debt of less than 20,800 euros: 13.99 euros.
For a debt equal to or exceeding 20,800 euros: 31.15 euros.
MARGINAL REFERENCES (including postal costs)
For all amounts: 7.18 euros.