Particular succession, which involves a binding agreement (signing) and an execution (closing), requires first and foremost that the nature, number and value of the assets to be transferred be substantiated. The mere specification of the groups of assets will not be sufficient for legal purposes.
Obligation to complete inventory for all instances of particular succession
Such an inventory is mandatory for all three types of transfer:
- contract for the purchase of moveable property (often refers to an annexed inventory)
- take-over of assets (take-over of a business) pursuant to Article 181 of the Swiss Code of Obligations
- transfer of assets pursuant to Article 69 ff. of the Swiss Law on Mergers
Take-over of assets
In cases involving the purchase of moveable property, all items to be transferred must be included in an inventory specifying their nature, number and value. In addition to details of their location, the following structure must be followed:
- real estate
- moveable property
- claims and assets
- other claims
- intangible assets
- manufacturing secrets
- trade marks
- domain names
- any cash
Preferential or ancillary rights such as liens or sureties are transferred to the investor along with the principal claim.
Take-over of liabilities
Liabilities are taken over according to the debt assumption procedure, which requires the consent of the creditor(s) in order to have the effect of releasing the previous debtor.
If not only assets but also a going concern is taken over under particular succession, this will require contractual assignments from the previous entity to the new body. This applies in particular to:
- leases for business premises
- contracts of employment
- leasing contracts
- maintenance contracts
- permits and concessions
With regard to the question regarding the extent to which assets may be transferred, if at all, whilst litigation is pending, the relevant procedural rules should be consulted (Swiss Code of Civil Procedure, Swiss Code of Criminal Procedure).