التصرفات غير الناقلة للملكية الواردة على المحل التجاري

Abstract

Abstract: This study examines non-transfer of ownership transactions involving business assets under Algerian law, focusing on legal mechanisms that allow businesses to operate while retaining ownership. The study primarily concentrates on two key transactions: the pledging of business assets and lease-management agreements, due to their practical importance in commercial and economic life. The objective of this research is to define the legal nature of business assets as intangible movable property and to analyze the legal framework for non-transfer of ownership transactions related to them. The study also aims to clarify the conditions for establishing pledges and lease-management agreements, their legal effects, and the grounds for their termination. Furthermore, it highlights the role of these transactions in supporting commercial credit and achieving a balance between the interests of the business owner, creditors, and third parties. To achieve these objectives, the study adopted descriptive, analytical, and comparative methods, analyzing the provisions of Algerian commercial law relating to goodwill, while also drawing on certain doctrinal opinions and comparative legislation. The study concluded that the Algerian legislature has established a specific legal framework for goodwill, taking into account its unique nature. This framework authorizes legal transactions that do not transfer ownership but confer real or personal rights enabling its economic exploitation. Pledging goodwill thus constitutes an effective guarantee of receivables without depriving the business owner of operating their business, while lease-management allows the operation of the business to be entrusted to a third party while retaining ownership for the original owner. However, the practical application of these transactions raises several legal difficulties, particularly regarding publicity and the protection of the rights of creditors and third parties, which necessitates strengthened legislative intervention to ensure greater legal certainty for commercial transactions.