The creditors' opposition period in the sale of a business (fonds de commerce)
The sale of a business (fonds de commerce) triggers a right of opposition for the benefit of the seller's creditors. This mechanism, provided for by the Commercial Code, explains why the price cannot be handed over to the seller immediately and must be held in escrow.
Publicity, the starting point of the period
The sale is subject to publicity: insertion in a legal notices publication, then publication in the Official Bulletin of Civil and Commercial Notices (BODACC). It is this publication that opens the opposition period. The seller's creditors then have ten days to file opposition on the price (article L.141-14 of the Commercial Code).
The effects of opposition
Opposition renders the price unavailable up to the amount of the claims filed. The seller cannot be paid as long as the oppositions are not lifted, whether by agreement with the creditors or by court decision (partial release or discharge). The escrow agent holds the funds during this period and releases the balance to the seller only once the opposing creditors have been paid off.
Opposition and the one-sixth overbid
The right of opposition comes with a complementary mechanism: where a creditor considers the sale price insufficient to pay off their claim, they may, under certain conditions, file a one-sixth overbid, that is, offer to acquire the business at a price increased by one sixth. This device protects creditors against a sale at an undervalued price and reinforces the usefulness of escrow, which keeps the funds unavailable while these rights are exercised.
Why escrow is indispensable
Without escrow, a buyer who had paid the seller directly would be exposed to having to pay a second time into the hands of the opposing creditors. The price escrow removes this risk and gives the opposition process its full effectiveness.
Are you selling or acquiring a business (fonds de commerce)? Fidens holds the price in escrow while the oppositions are cleared, on a dedicated CARPA account.
Frequently asked questions
What is the creditors' opposition period in the sale of a business (fonds de commerce)?+
The seller's creditors have ten days to file opposition on the price, running from the publication of the sale in the Official Bulletin of Civil and Commercial Notices (BODACC), in accordance with article L.141-14 of the Commercial Code.
What happens if no creditor files opposition?+
Once the ten-day period has elapsed without opposition, and subject to the other applicable periods (in particular joint tax liability), the price may be released to the seller by the escrow agent.
Does opposition block the entire price?+
No, opposition renders the price unavailable only up to the amount of the claim filed. The surplus may, where applicable, be released, while the sum corresponding to the opposition remains blocked until it is lifted.
A transaction to secure?
Fidens sets up the escrow of the price on a CARPA account, under the responsibility of a lawyer.