Přechod smluvních závazků při převodu závodu

Abstract

This paper aims to research the mandatory transfer of contractual obligations under the institute of the transfer of enterprise (or its part) under the Czech law. The transfer of business enterprises was reintroduced in the Czech law in more than 30 years ago, however to this day, the case law has not been united regarding the transfer of contractual rights and obligations. The author tries to conduct research by solving two case studies relating to the statutory guarantee of the transferor for the transferred debts. The first case study relates to the question, whether the transferor guarantees fulfilment of debts under specified framework agreements, provided the creditor has not consented to the transfer of the enterprise. In case of first study, the author succeeded to find solution under the current case law of the Czech Supreme Court. The aim of the second case study is to answer the question of “shared agreements” in case of the transfer of part of business enterprise, in particular whether there are any principles of determination which rights and obligations under shared agreement are subject of the transfer. According to the Czech Civil Code, the same principles as in case of the transfer of a whole enterprise should also be applied to the transfer of part of an enterprise, however there is no statutory nor doctrinal support on how to proceed in case of shared agreements. Although the current doctrine and case law provide no specific principles regarding which rights and obligations are transferred along with the part enterprise, the author provides an approach based on logical and teleological interpretation of the principles of enterprise transfer. The most preferred variant is to split the respective contractual rights and obligations, and if not possible, the rights and obligations should follow the legal fate of the part of enterprise to which they relate more closely.