Constantly confronted with the problem of professional financing during the social life of a company, managers strive to find appropriate solutions with credit institutions. In this context, leasing , which is a contractual technique of American origin, has grown considerably in recent decades because of its many strengths.
What is leasing? definition…
In order to understand the mechanism of financial leasing in an optimal way, it is necessary to refer to the provisions of Article L313-7 of the Monetary and Financial Code which was modified by the Law n ° 2005-882 of August 2nd, 2005 in favor small and medium-sized enterprises. From then on, the French legislative arsenal in terms of financial leasing envisages four different operations which it is up to us to distinguish successively. In this respect, the leasing transactions referred to in Article L313-7 can only be made as usual by commercial entities approved as credit institutions.
First, leasing is the operation by which a lessor leases to the benefit of a firm (credit-taker), capital goods or equipment equipment previously acquired, for a specified period of time in return for royalties or rents. At the end of said leasing agreement , the credit institution is required to offer the lessee the optional opportunity to acquire the leased goods for a price taking into account the payments already made.
In addition, we are also in the presence of a financial lease when a credit institution consents to renting a property for the benefit of a company if it has the opportunity to buy it at the latest. expiration of the lease. In this sense, the lending company has several options depending on the terms of the leasing contract. On the one hand, the acquisition may be linked to the performance of a unilateral promise of sale. On the other hand, the acquisition is likely to result from the transfer of the ownership of the buildings built on the land owned by the tenant. In addition, the last hypothesis lies in the direct or indirect acquisition of the property rights of the land on which the leased property or buildings were built.
In addition, the operation of renting a business with a unilateral promise of sale at a predetermined price is similar to leasing.
Finally, a leasing operation is the operation by which a lessor leases shares to a company by attaching a unilateral promise to sell for an agreed price taking into account, at least in part, the payments made for of rents.
Legal obligations to set up a lease
Then at the end of the evocation of the four transactions qualified as leasing by the Monetary and Financial Code, it is necessary to look at their constituent terms since they must be subjected to an advertisement intended for the identification of the lessor. , the lessee but also leased goods. When the leasing relates to movable assets, the credit institution requests the publication of the information inherent in the transaction with the Registry of the Commercial Court where the tenant company is registered in the Trade and Companies Register. .
On the other hand, when the leasing concerns immovable property, it is for the lessor to register with the Mortgage Office in accordance with the rules in force regarding land advertising.
The benefits of leasing for businesses
Finally, beyond this technical-legal presentation of leasing, it is good to understand more pragmatically its interest for entrepreneurs in terms of financing professional equipment. Thus while the use of leasing is naturally more expensive than a conventional acquisition, it has several invaluable advantages in the context of a business.
- As a first step, leasing shows a great deal of flexibility once it is established.
- Secondly, leasing allows the renewal of assets that are essential for the growth of a business without it having to release or even advance significant funds.
- Thirdly, leasing has a tax interest resulting in particular from the absence of a fixed asset in the balance sheet.
Duty to inform the lessor
In a professional credit in the form of a financial lease, the lessor or the lessor must fulfill specific obligations as the lessee, including that of informing the lessee on certain specific points.
The lessor must inform, advise and warn
Before the signature of the professional credit agreement is effective, the lessor must provide the necessary information to its client on all material details regarding the agreement. These include, among other things, the duration of the contract, the amount of rents, the method of payment and the due dates. An amortization table must also be provided and the penalties agreed between the two parties in case of unpaid bills will be communicated. The lessor also has the duty to advise the future tenant in his approach. In this case, he will indicate the contract that can best meet his needs while studying his ability to repay. Finally, it is his responsibility to warn his client when the property that he wants to rent can not be profitable, and indicate him at the same time the risk of indebtedness and the risk of failure he incurs he persists in signing.
Failure to provide information must be proven
In case of breach of its obligation to inform, the civil liability of the institution that granted the professional credit may be questioned. However, the stakeholder must prove that the renter has actually omitted, before the subscription, to inform, advise or warn him of possible risks. For its part, the lessor has the right to prove the opposite.
If the seller is able to show that his client has not indicated his needs to him when he has requested them, or that he has provided inaccurate or imprecise information, his responsibility may not be engaged or shared with that of the credit. entrepreneur, in proportion to the fault committed by each. The degree of competence of the lessee on the contract and the property object of the lease will be taken into account to measure the shares of responsibility of each.