Estabelecimento empresarial

Summary

In this session, Mariana Costa explains the importance of understanding the concept of 'Estabelecimento Empresarial' (Business Establishment) in corporate law. She clarifies that it is not just a physical location but a complex of assets organized for business activity, which can be either material or immaterial. Mariana covers various legal aspects, including the distinction between commercial points, property, and establishment assets, the rights and responsibilities in business transfers, and the latest 2022 legal updates. This insightful overview is essential for anyone studying corporate law, especially for exams focused on these topics.

Takeaways

• 😀 The concept of an 'Establishment' in Business Law is more complex than just a physical location. It refers to a complex of assets organized for business operations, according to Article 1142 of the Civil Code.
• 😀 The 'commercial point' of an establishment is a key element, referring to the location where business activities are performed. It plays a significant role in enhancing financial development.
• 😀 The commercial point is legally protected and can grant the tenant the right to a compulsory lease renewal, provided certain conditions (such as a written contract and a minimum lease term) are met.
• 😀 The 'patrimony' of a business is distinct from its establishment. While the patrimony includes all assets owned by the person or entity, only those directly involved in business operations are part of the establishment.
• 😀 An establishment is considered a 'universal of fact' in legal terms, meaning it consists of a group of tangible and intangible assets functioning together as a unit to pursue business activities.
• 😀 New changes to Article 1142 of the Civil Code (from the 2022 amendment) recognize the possibility of virtual businesses, which don't require a physical location, but still need a registered address.
• 😀 The contract of 'trespasse' refers to the transfer of an entire business establishment from one entrepreneur to another, and it is a distinct contract from simple asset sales.
• 😀 In the case of trespasse, the buyer assumes responsibility for certain debts of the transferred establishment, with the seller remaining jointly liable for one year, but only for specific types of debts (not taxes or labor-related debts).
• 😀 The 'non-competition clause' is common in trespasse contracts, preventing the seller from competing with the buyer for a certain period, typically five years, unless specified otherwise.
• 😀 Social media profiles, when used for business purposes, can be considered intangible assets of a business establishment, further highlighting the broad scope of what constitutes an establishment in modern business law.

Q & A

What is the legal definition of a business establishment in Brazil?

A business establishment, according to Article 1142 of the Brazilian Civil Code, is a complex of goods organized for the purpose of conducting business activities by either an individual entrepreneur or a business corporation. It includes both tangible and intangible assets related to the business.

What is the difference between a business establishment and a commercial point?

A business establishment refers to the entire set of assets (both tangible and intangible) organized for conducting business, whereas a commercial point is the physical or virtual location where the business activity is conducted. The commercial point is a key element of the establishment, but it is only one part of the overall business operation.

Can a business establishment exist without a physical location?

Yes, recent updates in 2022 to Article 1142 of the Civil Code recognize that a business establishment can exist virtually without a physical location, as long as there is a clear address for registration purposes, which could be the address of the individual entrepreneur or one of the business partners.

What are the requirements for a tenant to be entitled to the compulsory renewal of a lease contract for a commercial point?

For a tenant to be entitled to the compulsory renewal of a lease contract for a commercial point, the following three requirements must be met: the lease must be written and for a definite term, the term or cumulative extensions must total at least five years, and the tenant must have been conducting the same business activity at the location for at least three uninterrupted years.

What is a contract of trespass in the context of business law?

A contract of trespass refers to a legal agreement for the transfer of an entire business establishment from one entrepreneur to another. This includes the full set of assets and the continuation of the same business activity. It differs from other types of contracts that may only involve the sale of specific business assets.

What liabilities does the buyer assume in a contract of trespass?

The buyer of a business establishment is responsible for paying the debts associated with the business, provided these debts are properly recorded. The original owner remains jointly liable for the debts for up to one year after the transfer, depending on whether the debts have matured or not.

What is the significance of a non-compete clause in a contract of trespass?

A non-compete clause in a contract of trespass prevents the seller from opening a similar business in the same area for a certain period, typically five years. If no specific non-compete clause is included, the seller is still prohibited from competing unless authorized in the contract. Courts can review clauses that last longer than five years to determine if they are excessive.

What role do social media profiles play in the concept of a business establishment?

Social media profiles used for business purposes can be considered intangible assets of a business establishment. This acknowledges that digital platforms and online presence are integral parts of modern business operations and can be part of the overall assets of a business establishment.

How is the concept of a 'universal complex of assets' applied to business establishments?

A business establishment is considered a 'universal complex of assets' under Brazilian law. This means it is a collection of individual assets that function together as a unified whole for the purpose of conducting business activities. This concept is grounded in the idea of 'universality of fact,' which allows for the transfer and sale of the entire business operation as a single entity.

How does the law distinguish between a contract of trespass and a contract of share transfer?

A contract of trespass involves the transfer of the entire business establishment, including all assets and the continuation of the same business activity. In contrast, a contract of share transfer typically involves changes in the ownership structure of a company, where the only modification is the composition of shareholders, without the transfer of the entire business operation.