Il leasing d’azienda

Is it possible to admit a business under a leasing contract? If no problems arise in the leasing contract because it is an unregulated contract, questions are raised by the business. In fact, leasing is a flexible contract that may concern any type of good and that can be adapted to any kind of concern between the contract parties. On the contrary, business is a complex and mutable reality. It’s composed not only of tangible assets, but even of intangible assets, as well as of a whole string of juridical situations. Moreover, business is in continous development: business value estimation and goodwill can increase or go down, goods can become obsolete, even within a brief period of usage. Furthermore, business transfer produces results not only between the lessee and the lessor but also between others involved in the legal transaction. Finally, the Italian civil code disciplines only company (business) sales, usufruct and renting, meaning that it’s very difficult to ascertain if our law allows different modalities of business transfer apart from those specified. So how can contract leasing and business discipline be combine? Firstly, it’s necessary to solve the business leasing configuration problem. It’s important to establish (1) if it is possible, both in theory and in practice, to make such an agreement, especially concerning intangible assets and all juridical situations connected with business, and (2) if it is possible to conceive of a leasing in which a business, considered as one entity, is admitted or if it is necessary to sign a leasing contract for every single business component. This is not such a simple problem to solve. In fact, the main practical obstacle is the so-called investment risk. Who takes it? If the business isn’t bought by the lessee at the end of the contract, it returns to the lessor and even if it isn’t used and exploited, it produces results and needs to be managed. So who’s responsibility is it to manage it? The lessor, another new lessee, another new contract party, perhaps a guarantor? Furthermore what about its status after the return to the lessor and before a next potential transfer? What about contracts, credits, debts, intangible assets, management risk, warranties and of a ban on competition? Moreover, to whom will business management advantages and disadvantages be related? How can they be connected to the lessor or to the lessee or to a third contractual leasing party, perhaps a guarantor? Also, if there is a succession of lessees and business managements, how should they be considered? Should they be considered separately or as one complex management? What about customers, suppliers, workers and others related to the business in general? How is it possible to safeguard their interests? Perhaps is it possible to create a uniform manage trend? Only after having solved these problems, is it possible to analyze, in every single detail, leasing contractual structure (both objective and subjective), due diligence, business value estimation, contract performance and business credit, debt and contract succession, hypothesis and remedies of breach of contract and discharge, bankrupted results, business return regime (structure and results), accounting and fiscal aspects. An analytic analysis is reserved for the role of the guarantor and for the business management trend as the main and essential features of business leasing contract. The whole treatise is completed with a general part concerning the leasing contract and the business (especially intangible assets and business transfer rules) with specific references to legal doctrine and jurisprudence, both Italian and foreign (French, Spanish and English) and to practical commercial cases.