TRANSFER OF BUSINESSES (PROTECTION OF CREDITORS) ORDINANCE ——附加英文版
Hong Kong
TRANSFER OF BUSINESSES (PROTECTION OF CREDITORS) ORDINANCE
(CHAPTER 49)
Whole document:
rotect creditors on the transfer of businesses, to provide
for the
ility of transferees of business, the manner in which such
liability
be avoided and for matters incidental thereto and connected
therewith,
to repeal the Fraudulent Transfers of Businesses Ordinance.
June 1980]
1. Short title
Ordinance may be cited as the Transfer of Businesses (Protection
of
itors) Ordinance.
2. Interpretation
In this Ordinance, unless the context otherwise requires--
eal" includes a motion for a new trial or to set aside a
verdict,
ing or judgment;
iness" means a business, or any part thereof, consisting of a
trade or
pation (other than a profession) whether or not it is carried on
with
ew to profit; "charge" means--
a debenture within the meaning of the Companies Ordinance (Cap.
32);
a mortgage;
a bill of sale;
a lien; or
any document,
r or pursuant to which a business or any assets thereof are charged
as
rity for the payment of money or the performance of an obligation,
and
udes an equitable charge;
rge-holder" means a person who, under or pursuant to a charge,
and for
purpose of enforcing payment of any money or for the
performance of
obligation, may sell any business;
e of transfer" means the date on which a transfer takes effect
or is
nded to take effect;
ice of transfer" means a notice of transfer in accordance with
section
registered charge" means a charge which is registered under--
the Land Registration Ordinance (Cap. 128);
the Companies Ordinance (Cap. 32);
the Bills of Sale Ordinance (Cap. 20); or
any other enactment;
nsfer" means the transfer or sale of a business, but does not
include-
the sale of the stock-in-trade of a business in the ordinary
course of
trade;
the creation of a charge;
the transfer of land or any share or interest therein; or
the transfer of a vessel (or the transfer of any interest or
share
ein), other than--
a vessel to which Part IV of the Shipping and Port Control
Ordinance
. 313) applies; or
a trawler to which Part XII of the Merchant Shipping Ordinance
(Cap.
applies; "transferee" means the person to whom a
business is
sferred by a transferor; "transferor" means--
in the case of the sale of a business under or pursuant to a
charge,
person whose business has been or is intended to be sold;
in every other case, the person by whom or on whose
behalf the
sfer has been or is intended to be made.
For the purposes of this Ordinance "transferor" and
"transferee"
ectively include a sub-transferor and a sub-transferee.
3. Transferee of business to be liable for liabilities of trans-
feror
Subject to this Ordinance, whenever any business is transferred,
with
ithout the goodwill thereof, the transferee shall,
notwithstanding any
ement to the contrary, become liable for all the
debts and
gations, including liability for tax charged or chargeable
under the
nd Revenue Ordinance (Cap. 112), arising out of the carrying on
of the
ness by the transferor.
Notwithstanding subsection (1), where a part of a
business is
sferred (other than the goodwill thereof) and in any
proceedings--
the transferee would, but for this subsection, be adjudged
liable
r this Ordinance for any debts and obligations arising out
of the
ying on of the business by the transferor; and
it is shown to the satisfaction of the court hearing the
proceedings
--
the transferee purchased such part of the business in good faith
and
value; and
at the date of transfer of such part of the business, the
transferee
no knowledge (whether actual, constructive or imputed)
what he was acquiring formed part of a business,
transferee shall not be liable under this Ordinance for the debts
and
gations arising out of the carrying on of the business
by the
sferor.
4. Circumstances in which the transferee's liability ceases
A transferee shall not become liable under section 3 if a
notice of
sfer has been given not more than 4 months, and not less than 1
month,
re the date of transfer and has become complete at the
date of
sfer.
Where a notice of transfer has been given but the notice
has not
me complete at the date of transfer, the liability of the
transferee
r section 3 shall cease with effect from the date on which the
notice
ransfer becomes complete.
Where a notice of transfer has not been given before or at the
date of
sfer, the liability of the transferee under section 3 shall cease
with
ct from the date on which a notice of transfer, which is given
after
date of transfer, becomes complete.
A notice of transfer shall, subject to subsections (5) and (6),
become
lete upon the expiration of 1 month after the date of
the last
ication of the notice in accordance with section 5.
Subject to subsection (6), in the case of a notice of
transfer
rred to--
in subsection (1), if proceedings are instituted
against the
sferor in respect of any liability of the transferor arising
before
notice has become complete and out of the carrying on
of his
ness; or
in subsection (2) or (3), if proceedings are instituted
against the
sferee in respect of any liability of the transferee under
section 3
ing before such notice becomes complete,
notice of transfer shall (for the purposes of such proceedings
only)
eemed incomplete pending the final determination of such
proceedings,
uding all possible appeals, and pending the expiration of all
periods
ng which such appeals may be brought.
Where proceedings are instituted, a notice of transfer shall
not be
ed incomplete under subsection (5) unless within 1 month
of the
eedings being instituted--
they are served on the transferor or transferee, as the case may
be;
written notice that they have been instituted is sent by
registered
to the last known address of such transferor or transferee.
5. Contents of notice of transfer and manner of giving notice
Except in the case of a transfer by way of sale under or pursuant
to a
ge, a notice of transfer shall contain the following
particulars--
the full name and address of the transferor;
the nature of the business and the name or style under which, and
the
address at which, it has been carried on during the period
of 6
hs immediately preceding the date of transfer;
the date of transfer;
the full name and the residential and business addresses
of the
sferee;
if the transferee--
intends to carry on or is carrying on the business, the full
address
e, and the name and style under which, he is carrying it on or
intends
arry it on; or
is not carrying on the business and does not intend to carry it
on, a
ement to that effect; and
a statement that at the expiration of 1 month after the date of
the
publication of the notice pursuant to subsection (3), the
liability
he transferee for all the debts and obligations arising out
of the
ying on of the business by the transferor shall cease by
virtue of
Ordinance unless proceedings are instituted prior to such
expiration.
In the case of a transfer by way of sale under or pursuant
to a
ge, a notice of transfer shall contain the following
particulars--
the nature of the business, and the name or style under which,
and the
address at which, it has been carried on during the period
of 3
hs immediately preceding the date of transfer;
the full name and address of the person whose business has been,
or is
nded to be, transferred by way of sale under or pursuant
to the
ge;
details of the charge under or pursuant to which the transfer by
way
ale has been or is to be made, sufficient to enable any
document
ting or evidencing the charge to be readily identified and,
without
ting the generality of the foregoing, such details shall
include--
the date when the charge was made, given, executed or
came into
tence;
the consideration for which the charge was executed, made or
given
if there was no such consideration, the circumstances in which
it came
existence;
) in the case of a registered charge, the date of the registration
of
charge, the title of any enactment under which it was registered
and
number or other means of identifying the charge assigned to it
upon
stration;
the date of transfer; and
the amount of money, payment of which has been secured by the
charge
which was owing--
at the date of the publication of the notice of transfer; or
if the transfer has already taken effect, at the date of the
transfer
aking effect.
Every notice of transfer shall be signed--
by both the transferor and the transferee, in the case of a
transfer
hich subsection (1) applies; or
by the charge-holder and the transferee, in the case of a transfer
to
h subsection (2) applies,
shall be given by publication in--
the Gazette;
any 2 of such Chinese language newspapers circulating in Hong Kong
as
be approved for the purpose by the Chief Secretary; and (Amended
L. N.
f 1985; L. N. 242 of 1989)
) 1 English language newspaper circulating in Hong Kong which has
been
pproved.
6. Right of transferee to indemnity
The transferee shall be entitled to be indemnified--
by the transferor, except in the case of a transfer by way of
sale
r or pursuant to a charge; or
by the charge-holder, if the transfer is by way of sale
under or
uant to a charge,
all amounts for which the transferee is made liable
under this
nance and for which he would not otherwise be liable.
The amount of such an indemnity may be recovered by civil
proceedings
debt or liquidated demand.
7. Liability of parties not affected
ing in this Ordinance shall relieve or be deemed to
relieve a
sferor or transferee, or any person who sells a business
under or
uant to a charge, from any liability to which he would
otherwise be
ect.
8. Limitation of liability of transferee
A transferee who in good faith and without preference has
paid in
harge or partial discharge of any liability for which he became
liable
r this Ordinance, and for which he would not otherwise
have been
le, an amount which is equal to the value of the business acquired
by
at the date on which the transfer took effect, shall not be
liable
her under this Ordinance.
The value of a business acquired by a transferee at the date on
which
transfer takes effect shall, until the contrary is proved, be
presumed
e an amount equal to the amount paid or agreed to be paid (whether
in
s of money or by means of any other consideration) for the
acquisition
he business.
9. Limitation of time for institution of proceedings
ect to section 6, no action shall be instituted to recover any
debt
or to enforce any obligation against any person liable therefor
under
Ordinance, and for which he would not otherwise have been
liable,
than 1 year after the date on which the transfer in respect of
which
liability arose took effect.
10. Saving
Ordinance shall not apply to any transferee where the transfer
ffected--
by the Official Receiver or a trustee in bankruptcy;
by the liquidator of a company in liquidation other than
voluntary
idation;
by the Financial Secretary Incorporated; (Amended L. N. 369 of
1989)
by the Director of Education Incorporated;
by the Director of Social Welfare Incorporated;
by a person selling under or pursuant to a charge which has
been
stered for not less than 1 year at the date when the transfer
takes
ct;
pursuant to any order or direction of any court;
by an executor or administrator; or
by operation of law.
11. Repeal and saving
The Fraudulent Transfers of Businesses Ordinance (Cap. 49, 1964
Ed.)
epealed.
Notwithstanding subsection (1), the Fraudulent Transfers of
Businesses
nance (Cap. 49, 1964 Ed. ) shall continue to apply with respect
to a
sfer--
which took effect; and
in respect of which notice was given under section 3
of that
nance, before the coming into operation of this Ordinance, as if
this
nance had not been passed.
最高人民法院关于甘肃省供销合作联社储运公司东岗综合商场诉浙江省玉环县田马食品厂购销合同纠纷案管辖争议问题的复函
最高人民法院
最高人民法院关于甘肃省供销合作联社储运公司东岗综合商场诉浙江省玉环县田马食品厂购销合同纠纷案管辖争议问题的复函
1990年7月16日，最高人民法院
甘肃省高级人民法院、浙江省高级人民法院：
甘肃省高级人民法院甘法经上（1990）11号请示报告和浙江省高级人民法院（1990）浙法经字第20号函收悉。关于甘肃省供销合作联社储运公司东岗综合商场诉浙江省玉环县田马食品厂购销合同纠纷案的管辖争议问题，经研究，答复如下：
本案合同签订地在石家庄市，合同履行地在宁波市。依据民事诉讼法（试行）第二十三条规定，石家庄市中级人民法院和宁波市中级人民法院对本案均有管辖权。但鉴于本案当事人双方及合同标的物均不在合同签订地和合同履行地，合同签订地和合同履行地法院行使案件管辖权确有困难，且原告又选择了向被告所在地玉环县人民法院起诉。根据民事诉讼法（试行）第三十三条、第二十九条和第二十条第二款规定，现指定浙江省玉环县人民法院受理本案。请甘肃省高级人民法院裁定撤销兰州市中级人民法院兰法经（1989）188－（1）号民事裁定，告之该院将本案有关材料及案件受理费一并移送浙江省玉环县人民法院。
此复
附：甘肃省高级人民法院关于指定管辖的请示报告
最高人民法院：
1988年9月10日，浙江省玉环县田马食品厂（以下简称食品厂）与甘肃省供销合作联社储运公司东岗综合商场（以下简称：东岗商场）在石家庄签订了一份购销合同，合同约定：食品厂供给东岗商场食品罐头3100件，交货地点宁波火车站，到货地点兰州东农副专用线；交货方法：供方代办，铁路运费购方负担。合同签订后，东岗商场付给食品厂货款176500元，食品厂供货价值171470．40元。东岗商场收货后发现，食品厂所供食品罐头的品名和质量与合同不符，提出异议，双方也未能达成一致意见，酿成纠纷。东岗商场遂向玉环县人民法院提起诉讼，玉环县人民法院于1989年4月27日以本案的标的物在兰州为由将此案移送兰州审理。兰州市中级人民法院受理此案后，食品厂则以合同签订地和履行地均不在兰州为由，对本案管辖提出异议。兰州市中级人民法院认为：玉环县人民法院以本案的标的物在兰州为由将此案移送我院审理，故我院对该案有管辖权，裁定驳回食品厂异议。裁定后，食品厂不服，又以合同履行地在玉环县为由，上诉本院，再次对管辖提出异议。上诉后，兰州中院征求宁波市中级人民法院意见，因本案标的物在兰州，为了便于审理，宁波中院亦同意由兰州市中级人民法院审理。
本院认为：本案合同签订地在石家庄，履行地在宁波，故浙江玉环县与甘肃省兰州市均无管辖权。根据《中华人民共和国民事诉讼法（试行）》第三十二条规定及最高人民法院关于贯彻执行民事诉讼法（试行）若干问题的意见，“人民法院发现受理的案件不属自己管辖，应移送有管辖权的人民法院。受移送的人民法院，认为移送的案件不属于自己管辖，可报请共同上一级人民法院指定管辖，不得再自行移送。”按此规定，此案应由你院指定管辖。故特此报告，请予指定。
另本案标的物在兰州，有管辖权的宁波法院亦同意由兰州中院审理，上诉人要求让玉环县法院受理，但玉环县亦无管辖权，根据上述具体情况，为了便于审理，我们建议本案可指定由兰州市中院审理。这一意见妥否，供你们研究时参考。
1990年6月1日
