Droit commercial: concepts et éléments du fonds de commerce

Fonds de Commerce - Concepts & Elements

• Definition: Fonds de commerce is a merchant's movable, intangible asset, representing significant value and capable of transfer. Defined not by law, but through jurisprudence and doctrine, it encompasses elements commonly used for business operation.
• Elements: Composed of both tangible and intangible elements

Intangible Elements

• Clientèle (Customers): Fundamental, without it, there is no business. Defined by the relationships, not the number. Distinguished from "achalandage" (passing clientele). Key characteristics include:
  • Commercial Nature: Must relate to the merchant's commercial business activities.
  • Legitimate Operations: Compliant with the law.
  • Certainty & Reality: The customer base must be real and the relationships established.
  • Personal to the Merchant: Client base should be directly associated with the merchant's activity, not general clientele attracted by location. Geographical and contractual constraints exist. Courts have assessed this within specific contexts (e.g buvette at race track, boat rental). Merchants must have autonomy over their business to claim the clientele as personally tied.
  • Examples: A single customer or clientele based on a specific business location or activities.
• Nom commercial (Trade Name): The merchant's business name (can be personal or fictitious). May be transferable with or without the business itself. Protection through intellectual property rights or unfair competition law is possible.
• Enseigne (Business Sign/Logo): A sign that identifies and attracts customers to the business. May not be the same as the commercial name. Can be transferred, and protected as a trade name.
• Bail commercial (Commercial Lease): Crucial component of business value; a specific lease contract, distinct from general rental agreements. Defined by French commercial law (Code de commerce). Important aspects include:
  • Regulated Rent: Initially flexible, then, regulated.
  • Renewal Rights: Tenant has renewal rights, and if denied, is entitled to compensation (generally funds' value).
  • Minimum Duration: 9 years minimum. Bail can be terminated by tenant after 3 years or earlier under specific conditions by the landlord. Can be sold independently of the business.
• Droits de propriété intellectuelle (Intellectual Property Rights): Trademarks, patents, licenses and administrative authorizations (e.g. for alcoholic beverage sales) are part of overall enterprise value, and are protected against infringement.

Tangible Elements

• Matériel et outillage (Equipment/Tools): Items used in business operations (copiers, cabinets, etc).
• Marchandises (Goods): Products sold and kept in stock. Need to be inventoried in a business buy/sale situation. Cannot be a security interest (nantissement), unlike the business itself. Their sale prioritizes vendor claims.

Excluded Elements

• Immeubles (Real Estate): Real estate is excluded as a part of the fonds. Business premises are distinct property.
• Contrats (Contracts): Generally, contracts aren't part of the fonds. But, commercial leases are an exception. Certain employment, intellectual property, and insurance contracts related to the business activity can be legally transferred during a fonds sale. Specific exceptions (like employment contracts) that can be part of the enterprise sale are identified in French law.

Nature of the Fonds de Commerce

• Universalité de fait (Universality of Fact): A distinct entity made up of parts, yet not separate from each other. It can't be sold in parts. A distinct legal entity, with specific rules about transfer and claims.
• Movable, Intangible Asset: Differentiates from real estate. Separate sale of business operation and real property are needed if a single person buys both. Certain rules relating to tangible property do not apply to a business.