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The problem of returning a company acquired on the basis of a void company purchase agreement

Authors
Publisher
Faculty of Law of University of Zagreb
Publication Date
Keywords
  • Poduzeće
  • Pogon
  • Asset Deal
  • Neopravdano Obogaćenje
  • Ništavost
  • Company
  • Plant
  • Asset Deal
  • Illicit Profit
  • Nullity
Disciplines
  • Law

Abstract

It is hardly unusual today for a company to be the object of a legal or business transaction, but the specific features of companies in this context have not yet been clearly defined. These features become prominent during its transfer, but also during its returning following a transfer carried out on the basis of a void company purchase, lease or gift agreement. This paper looks at the provisions of Article 323, paragraph 1 and Article 1111, paragraph 1 of the Civil Obligations Act and elaborates on the conditions in which a company acquired on the basis of a void purchase agreement should be returned in kind, and when the value of the realised utility should be returned instead. The author defends the view that the mere possibility of returning the company's tangible property by vindication does not justify the returning of that property and, accordingly, of the company in kind. The fact that it is not possible to return a company in kind since it is impossible to return a company at all should be linked to the specific nature of a company as the object of a legal transaction, and not merely to the company's tangible property and claims. The paper tries to precisely specify the conditions in which a company acquired by way of a void purchase agreement cannot be returned in kind, and when the value of the realised utility should be returned instead. Special attention is given to the problem of returning the profits made while running a company acquired on the basis of a void company purchase agreement.

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