Transfer of Assets: Executive Summary

The newly instituted transfer of assets allows a company or a private firm registered in the Commercial Register to transfer, by one single act (universal succession), all or part of its assets and liabilities to another legal entity. This transfer of assets and liabilities may also include legal relationships of the company, in particular, agreements with third parties. The importance and viability of the transfer of assets rests with its flexibility. First of all, it will be considered as an "omnibus clause": it may apply whenever a structural adjustment cannot be realized within one of the standard transactions of merger, spin-off, or change of corporate form because of formal obstacles.

All forms of companies as well as private firms registered in the Commercial Register may utilize this transfer of assets.

In general, with such a transfer, assets and liabilities are easily assigned, especially when not needing to consider special regulations that normally would apply to a transfer of individual assets or claims. Solely for the transfer of real estate, the merger law requires public recording, but this public recording is facilitated insofar that when there are several properties to be transferred, even if located in different cantons, one single pub-lic recording will suffice.

The transfer of assets does not formally affect the shareholders or partners of the transferring company: The shareholders or partners keep their positions in the transferring company with-out becoming shareholders or partners in the absorbing com-pany. In this respect, the effects of a transfer of assets are dif-ferent from those of a spin-off transaction.

A transfer of assets is based on the transfer agreement to be concluded by the executive body of the involved legal entity. The transfer of assets does not require approval by the share-holders or partners, or by the general meeting of the transfer-ring company. Disclosure is sufficient: The shareholders or partners of the transferring company must be informed about the transfer of assets, including its conditions, at the general meeting or in an appendix to the annual financial statements and reports. If the transferred assets amount to less than 5 per-cent of the transferring company’s total in the balance sheet, there is not even a duty of disclosure. After all, the transfer of assets can make it impossible for the transferring company to follow the company’s purpose as stated in the bylaws. With the transfer of all assets this might even be the rule. In such cases, the transfer of assets requires an amendment of the bylaws (as to the company’s purpose) and thus the consent of partners or of shareholders in a general meeting.

The assets and liabilities to be transferred must be inventoried. A transfer of assets is admissible only when the inventory re-veals a net surplus. Only assets and liabilities that are capable of being used to influence the asset position in the balance sheet may be taken into account. Items like “goodwill” and such cannot be capitalized. The inventory is not only the basis of the transfer of assets, but it also defines its scope and extent. Whatever cannot be clearly allocated to the transfer, based on the inventory, remains with the transferring legal entity. The transfer becomes legally binding only upon the entry in the Commercial Register.

To protect creditors and employees, the transferring company is jointly and severally liable with the absorbing company for the transferred liabilities for three years. There are also specific provisions for the treatment of the employment relationship within such a transfer.

Due to these new rules for the transfer of assets, the hitherto existing provisions under Art. 181 CO regarding “takeover of assets and liabilities or of a business” are left with a very limited field of application. The new Art. 181 para. 4 CO provides that the assumption of assets or of an enterprise of registered legal entities of private law is now subject to the above mentioned provisions of the merger law, regardless of the legal form of the acquiring company. The “assumption of assets and liabilities or of an enterprise” under Art. 181 CO, therefore, remains de facto applicable only for associations and private firms that are not registered in the Commercial Register.


Suggested citation:
Hans Caspar von der Crone / Andreas Gersbach / Franz J. Kessler / Martin Dietrich / Claudia Fritsche / Katja Berlinger, www.fusg.ch - die Internetplattform zu Fragen des Transaktionsrechts, <http://www.fusg.ch/en/trans/transfer/index.php?datum=2003-08-22>, status: Aug. 22, 2003, visited Feb. 04, 2012.

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