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Sucesión universal y transmisión de contratos en la escisión parcial y la segregación

Publicado en:Revista De Derecho Mercantil. (334): 3 - - 2024-01-01 (334), DOI:

Autores: Castellano Ramírez, María José

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Resumen

Taking into account the principle of universal succession as a typical system for transferring assets and liabilities in the context of structural changes of commercial companies (i.e., the division of the company), the article analyzes the application of this system to the transfer or assignment of contracts entered into by the «transferring» company with a third party, in particular, when the contracts are continuous and the company’s obligations are not monetary. As there are no specific legal provisions on the transfer of contractual relationships in this type of transactions, the paper addresses the legal bases for dispensing with the consent of the counterparties in such contracts, as well as the requirements and limits of the principle of universal succession. It also addresses the adequacy of the creditor protection mechanisms when applying them to the counterparties of said contracts. Although many of the issues are common to any type of structural change, the work focuses especially on partial divisions and spin-offs, since the peculiarities of these operations — the fact that the transferring company is not extinguished and that what is transmitted is only a part of its assets (one or several economic units) — justify a differentiated treatment in some relevant aspects

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