Inform the buyer if the value of an asset changes significantly or if liabilities, finances or liabilities change significantly. The main disadvantage of an asset sale contract, unlike a share purchase agreement, is that each asset must be transferred in accordance with its rules and be made enforceable against third parties (for example. B by consents and authorizations). This applies in particular to customer contracts, as a third party may see the transaction as an opportunity to renegotiate their contract. This could delay the deal and increase transaction costs. The courts have always held that transactions entered into to avoid liability cannot be used by the parties to evade their legal responsibilities. This means that buyers and sellers of businesses cannot structure a business just to avoid debt. To prove fraud, a creditor must prove fraudulent intent. A common feature of the causes of fraud is the lack of adequate consideration, i.e.
the purchase price is abnormally low. Most legal proceedings, which broadened the scope of the successor liability, arose in certain specific contexts where it seemed simply unfair that the owners of a selling business had profited from the sale of assets and had distanced themselves from certain liabilities. The courts would not care too much about certain debts of the seller if they were not paid. However, in the event of product violations, environmental liabilities, and deficits in pension and retirement funds, the courts have become creative and have found ways to ensure that someone remains somewhere trapped to settle these types of debts. The product line exception imposes on a buyer of a company a replacement liability for pre-closing product liability claims against the purchased company if the following are accurate: Of course, a buyer who remains stuck in the payment of the seller`s debt, if this is not part of the transaction, is likely entitled to reimbursement by the seller under the terms of the contract for the sale of assets. But if the seller`s creditors have not been paid by the seller, there is a good chance that the seller will not pay the buyer either. Therefore, buyers should comply with mass selling laws where applicable. Instead of acquiring all the shares of a company and therefore both its assets and liabilities, a buyer will very often prefer to take over only certain assets of a company.
As a rule, the company sells the assets itself when buying assets, while in the case of a sale of shares, it is the individual shareholders who are the sellers. In addition to the flexibility to sell only certain assets and not the entire business, asset sale contracts generally contain detailed provisions regarding the transfer of liabilities from the seller. Payment of VAT applies. VAT is levied on the transfer of most of the assets used in a business, provided that the seller is a taxable person However, when it comes to other liabilities such as disputes, most buyers prefer not to take them over. Generally speaking, structuring an M&A transaction as an asset purchase gives the buyer the flexibility to avoid unwanted debt. The reason for this is that the buyer only chooses the assets and liabilities he wants to acquire. On the other hand, in case of purchase of shares, the buyer follows in the footsteps of the selling owners and takes over the company as it is. The buyer of a business may be willing to take on some of the seller`s debts….