THE LIMITS OF TRANSMITTING INTANGIBLE ELEMENTS OF THE BUSINESS THROUGH SUCCESSION
THE LIMITS OF TRANSMITTING INTANGIBLE ELEMENTS OF THE BUSINESS THROUGH SUCCESSION

Summary/Abstract: The present study is a continuation in an in-depth manner of the researches we have undertaken on the successional transmission of property and business. The transfer of business components (elements), due to their specificity, entails in certain cases restrictions (prohibitions) and, in other cases, legal and sometimes conventional limits. The intangible elements of the business are, according to the expression of the legislator: the company, the emblem, the clients, the good custom, patents of inventions. In our opinion, the enumeration made by the legislator is not limiting, knowing that, in the business, traditionally, there may be other elements such as: authorizations, approvals necessary for the exploitation by the professional of the business, know-ho (savoire faire) etc, and in French law the right of bail (use) on the space where the business is exploited in its entirety. Although in the case of the transfer by succession of a goodwill it can be accepted that together with it the clientele is also transferred (especially since it is evaluated), however, in practice, this cannot be transmitted „tale quale” from the owner of the business (de cuius) to the heirs who accept the continuation of the activity. The business in its entirety as well as its intangible elements (assets) can be transmitted through succession with the limits analyzed, in particular, those related to the company, which can only be transmitted together with the entire goodwill, and those relating to the clientele regarding which the professional has no subjective right, but which has a value that can be transmitted through succession.

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