Transfer of Assets and Liabilities through Asset Transfer
Asset transfer enables simple transferral of assets and liabilities of a company as a whole. The procedural requirements of the individual asset items need not be taken into account. This makes it considerably easier if you want to transfer various assets.
In commercial law, there are different ways to transfer assets from one company to another. A production machine can, for example through a simple purchase contract, have office space transferred to it through a land sales contract. It should be noted that the various types of contracts must take special procedural requirements into consideration.. The land sales contract must therefore be certified by a public notary (Art. 216 OR). If a company now wishes to purchase several asset items simultaneously (e.g. sale of a production hall in which machines and other objects are still located) according to the Swiss Code of Obligations (OR), each asset must be transferred individually and in compliance with the specific procedural requirements (also referred to as transfer by singular succession).
Transfer of Assets under the Merger Act (Fusionsgesetz)
In order to simplify the transfer of assets and liabilities for companies, the option of asset transfer according to the merger act was created. It enables the transfer of assets or parts of assets as a whole, meaning the otherwise applicable procedural requirements need not be taken into account for individual asset parts (transfer through universal succession). To do so, an inventory is created which clearly marks the objects to be transferred for assets and liabilities (Art. 71 Para. 1 letter b. FusG (Merger Act)). It should be taken into account that the consideration received for the asset transfer may not consist of membership rights of the acquiring company (e.g.: shares), otherwise it will be a split/spin-off which will entail further legislation.
The Asset Transfer Process
The transfer of assets and liabilities follows this process:
- The highest leadership or administrative body must conclude a written transfer contract.
- The central content of the contract forms the inventory (Art. 71 FusG). Property, shares and intangible assets are to be listed individually.
- The items listed in the inventory will then be transferred.
- The transfer of assets must be placed on the commercial register, only then will the transfer be legally effective. If property is in the inventory, the land registry office must additionally be informed.
- The shareholders must subsequently be made aware of the asset transfer. The information can be provided in an appendix to the financial statements or at the general annual meeting (Art. 74 FusG).
In order to guarantee the protection of creditors, a transfer of assets is only permissible if the inventory identifies an asset surplus (Art. 71 Para. 2 FusG). The transfer of assets can be seen by all organisations which are listed in the commercial register.
