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Section 378. Anonymous Stockholders and Debenture Holders(1) If the acquiring company is a limited liability company or a stock company which has only bearer stock and if there is no information regarding stockholders or debenture holders who own convertible debentures of the acquired, dividing or restructured company, the numbers and the nominal value of stock or debentures shall be indicated in the place of the names of the shareholders or stockholders in the register of shareholders of the acquiring company or register of stockholders. (2) If the acquiring company is a partnership, and if there is no information regarding stockholders or debenture holders who own convertible debentures of the acquired, dividing or restructured company, the numbers and the nominal value of stock or debentures shall be indicated in the place of the names of the shareholders or stockholders in the reorganisation agreement and the application to the Commercial Register Office. (3) If the names of these stockholders or debenture holders become known later, they shall be entered in the register of shareholders (stockholders) of the acquiring company, but if the acquiring company is a partnership – in the Commercial Register. Section 379. Protection of Interests of Holders of Preference Stock and Debenture Holders (1) The rights of the holders of preference stock and debenture holders of the acquired or dividing company shall be preserved in the acquiring stock company. (11) The debenture holders may take a decision on amending the rights thereof, which are granted to them by the acquiring company, until taking of the decision on reorganisation. The referred to decision shall be taken, if not less than three fourths of debenture holders of each category of debentures vote for it, if the articles of association do not specify a larger number of votes. (2) If the acquiring company is not a stock company, the holders of preference stock and debenture holders of the acquired or dividing company shall acquire the shares of the acquiring company on the basis of the same provisions as other stockholders of the acquired or dividing company. (3) The holders of preference stock and debenture holders, who disagree with the decision on reorganisation, may request compensation in accordance with the provisions of Section 353 of this Law. [24 April 2008; 18 December 2008] Division XIX[24 April 2008] Special Provisions for Cross-border Merger Section 380. Reorganisation Agreement in Case of Cross-border Merger The following information shall be indicated in the reorganisation agreement in addition to the information specified in Section 338, Paragraph two of this Law: 1) the types of capital companies involved in the cross-border merger and the type of the capital company to be newly founded; 2) the data regarding valuation of assets and obligations within the composition of the property to be transferred to the acquiring capital company; and 3) the report on commercial activities of the capital company, upon which the provisions for cross-border merger are based. [24 April 2008] Section 381. Reorganisation prospectus in Case of Cross-border Merger (1) In addition to the information referred to in Section 339, Paragraph one of this Law the information regarding how the cross-border merger affects the shareholders (stockholders) and creditors of a capital company involved in this merging shall be indicated in the reorganisation prospectus. (2) Not less than one month before the day when the meeting of shareholders (stockholders) regarding approval of the agreement is intended, the employees of a capital company or representatives thereof have the right to get acquainted with the reorganisation prospectus. [24 April 2008] Section 382. Decision on Reorganisation in Case of Cross-border Merger (1) If the regulatory enactments regulating the activity of a capital company registered in another Member State and involved in a cross-border merger do not provide for a procedure for determination of a compensation for minority shareholders (stockholders), without preventing the registration of the cross-border merger, the acquired capital company registered in Latvia may apply such procedure, if the shareholders (stockholders) of a capital company registered in another Member State and involved in a cross-border merger decide to allow the application of the referred to procedure. (2) If the regulatory enactments regulating the activity of the acquired capital company registered in another Member State do provide for a procedure for scrutinising and amending the ratio applicable to the exchange of securities or shares (stocks), without preventing the registration of the cross-border merger, the acquired capital company registered in Latvia may allow the application of such procedure, if the meeting of shareholders (stockholders), which approves the reorganisation agreement, takes a decision by unanimous vote. The decision taken in the referred to procedure shall be binding to the acquired capital company registered in Latvia and the shareholders (stockholders) thereof. [24 April 2008] Section 383. Pre-merger Certificate (1) If it is intended to register the acquiring capital company in another Member State, the acquired capital company registered in Latvia shall submit an application to the Commercial Register Office for the receipt of an attestation that the acquired capital company has performed all the necessary activities for the completion of cross-border merger. (2) The documents referred to in Section 347, Paragraph one, Clauses 1, 2, 3, 4, 5, 6, 7 and 8 of this Law shall be attached to the application. The capital company shall attest in the application that all claims of those creditors, who have applied their claims within the specified time period, have been provided or satisfied and that a decision on reorganisation has not been appealed to the court or that the relevant claim has not been satisfied. [24 April 2008] Section 384. Submission of Application and Documents to be Attached Thereto to the Commercial Register Office If the acquiring capital company is registered in Latvia, a document issued by the Commercial Register Office of another Member State not later than six months before, which attests that the acquired capital company has performed all the necessary actions for the completion of the cross-border merger, shall be submitted to the Commercial Register Office in addition to the documents referred to in Section 347 of this Law. [24 April 2008] Section 385. Special Provisions of Acquisition If the cross-border merger is carried out within the framework of acquisition process and this merger is carried out by a capital company, which owns all capital shares (stocks) of the acquired capital company, the provisions of Section 343, Paragraph one of this Law shall not be applied to the acquired company registered in Latvia. [24 April 2008] Section 386. Record in the Commercial Register Regarding Cross-border Merger If a record regarding the acquiring capital company is made in the Commercial Register of another Member State, the record in the Commercial Register regarding the acquired capital company shall be made, when the Commercial Register Office has received the information from the Commercial Register Office of another Member State regarding the making of the relevant record. [24 April 2008] Section 387. Entry into Effect of the Cross-border Merger If the acquiring company is registered or is being registered in Latvia, the cross-border merger shall be considered as effective when a record regarding the acquiring company has been made in the Commercial Register. [24 April 2008] Part D Commercial Transactions Division XX General Provisions for Commercial Transactions [18 December 2008] Section 388. Concept of Commercial Transactions Commercial transactions shall be lawful transactions of a merchant, which are connected with commercial activities. [18 December 2008] Section 389. Commercial Transaction in which One Party is Merchant If a transaction is a commercial transaction only for one of the parties to the transaction, the provisions of this Law regarding commercial transactions shall be equally applicable also to other parties to the transaction, insofar as it is not otherwise provided for in regulatory enactments in the field of protection of consumer rights or in other laws. [18 December 2008] Section 390. Presumption of Commercial Transaction (1) In case of any doubts a transaction of an individual merchant shall be deemed a commercial transaction. Within the meaning of this Section, making of the record in accounting, input tax deduction, use of benefits obtained as a result of the transaction in commercial activities, etc. shall be deemed application of the transaction to commercial activities. (2) A debt document signed by an individual merchant shall be deemed signed in relation to his or her commercial activities performed, insofar as the contrary does not arise from this document. [18 December 2008] Section 391. Commercial Practices In interpreting the intent expressed by a merchant, as well as the meaning and consequences of an action, the practices existing in the scope of commercial rights in the relevant sector shall be taken into account in the mutual legal relations of merchants. [18 December 2008] Section 392. Merchant’s Silence (1) If a merchant (commercial agent, broker, commission agent, forwarder, etc.), who enters into transactions in favour of other persons or prepares entering therein, is conveyed a proposal for entering into such transaction or preparation of such entering by a person with whom he or she has relations of commercial transactions; the merchant has a duty to reply to this proposal as soon as possible. (2) Also if the merchant refuses the proposal regarding entering into a transaction or preparation of entering therein, he or she has a duty to ensure temporary storage of such movable property, which was sent together with the proposal, at expense of the person who expressed the proposal, insofar as it is not connected with incommensurate expenses and insofar as the covering of storage expenses of the movable property is ensured for a merchant. [18 December 2008] Section 393. Duty of Diligence of the Merchant (1) In relations of commercial transactions a merchant has a duty to act with the diligence of a respectable and accurate merchant. (2) The condition of Paragraph one of this Section shall not limit the application of such provisions of the Law where the liability of a debtor for evil intent, gross negligence or lack of such diligence, which he or she is used to observe in his or her own dealings, is regulated. [18 December 2008] Section 394. Joint Liability If several merchants jointly undertake to fulfil a divisible obligation, they shall be solidarily liable for this obligation in case of doubts. [18 December 2008] Section 395. Remuneration and Calculation of Interest (1) A merchant who enters into transactions in favour of another person or prepares the entering into them, or provides services, is entitled to request remuneration even if it has not been agreed upon. The amount of the remuneration shall be determined pursuant to the amount of remuneration usually paid in the relevant geographical territory. (2) The merchant referred to in Paragraph one of this Section is entitled to calculate lawful interest for loans, pre-payments, expenditures and other payments, counting from the day of making the relevant payment. [18 December 2008] Section 396. Time Period for Fulfilment Fulfilment of obligations in commercial transactions may be requested and obligations may be fulfilled only during the usual working hours of a merchant, unless it arises otherwise from the conditions of the matter. [18 December 2008] Section 397. Medium Benefit Property If the subject-matter of an obligation of a merchant is such movable property, which is characterised by grade and amount, medium benefit properties shall be given for the fulfilment of the obligation, unless the parties to the transaction have not agreed otherwise. A medium benefit property shall mean a property, which has been recognised as such within the scope of commercial rights at the place of fulfilment of the obligation. [18 December 2008] Section 398. Units of Measurement and Currency In case of any doubts it shall be considered that the parties to a commercial transaction have agreed on such units of measurement of length, area, volume, mass and other units of measurement, as well as on currency, which exists at the place of fulfilment of the relevant obligation. [18 December 2008] Section 399. Right to Retainer (1) A merchant is entitled to retain movable property and securities owned by another merchant and possessed by him or her, which pursuant to the will of the other merchant have come in the possession of the retainer on the basis of a commercial transaction, and not to release this property and securities as long as the money claim of the retainer arising from the commercial transaction entered into between them against another merchant is not satisfied. In order to achieve the satisfaction of such claim, the merchant may retain also such objects which he or she has obtained in the ownership from another merchant or a third party, however, in favour of the other merchant, and which the retainer has a duty to hand over in the ownership of the other merchant. (2) The right to retainer may only be used if the obligation of the other merchant is already fulfilled and is not limited either by conditions or time period. (3) The right to retainer is not effective against the third party who has obtained the right of commercial pledge for the retained object. In such case the provisions of Section 40 of the Commercial Pledge Law shall be applicable accordingly. Also the right to retainer shall not be effective against the third party who has lawfully obtained some other property right to the retained object prior to the use of the right of retainer. (4) A merchant is not entitled to retain objects with which he or she has a duty to act in a specific way on the basis of an obligation which the merchant has undertaken in relation to another merchant. (5) The other merchant may prevent the use of the right to retainer by providing suitable collateral. The collateral may not be the guarantee of a third party, except the case when the retainer agrees to receive such collateral. The retainer shall obtain the pledge rights to properties received as collateral in accordance with the provisions of the law regarding establishment of the pledge rights.
(2) The retainer has the benefit of a right to satisfy his or her claim against other persons that are not referred to in Section 399, Paragraph three of this Law and in favour of whom the retained objects have been pledged after the use of the right to retainer by selling the retained objects. [18 December 2008] Section 401. Obtaining of Movable Property into Ownership in Good Faith (1) Even if a merchant alienates a property in favour of another person on the basis of a commercial transaction, the acquirer obtains the property rights with respect to this property, except the case when he or she was not acting in good faith at the time of transfer. The acquirer is not acting in good faith if he or she knows that the property is not owned by the alienor or the alienor is not entitled to handle this property, or the acquirer is not aware thereof due to gross negligence. (2) If the alienated property is burdened by rights of a third party, these rights shall expire with the transfer of the property rights to the acquirer of good faith, except the case when he or she did not know regarding the referred to rights at the time of transfer or was not aware thereof due to gross negligence. (3) The provisions of this Section shall not be applied to a property obtained in illegal way, lost property or such property, the possession of which has been terminated against the will of the owner, except money, securities of bearer, as well as properties which have been sold in an auction with intermediation of the court.
(2) A pledgee whose claim has not been satisfied by the debtor within the specified time is entitled to sell the lawful subject-matter of the rights of possessory pledge at the expense of the debtor , informing the debtor thereof in advance and taking into account the provisions of the Civil Law regarding the sale at an auction. The relevant provisions of the Civil Procedure Law shall be applied for notification of an auction and for the procedures of auction. (3) The lawful subject-matter of the rights of possessory pledge shall be sold for the highest price which is possible during the sale and the sale shall not be deferred. (4) A pledgee shall be liable to the debtor as an authorised representative for the sale of the subject-matter of the right of possessory pledge and his or her duty shall be to reimburse all losses of the debtor, which the pledgee could have prevented by observing diligence of a respectable and accurate merchant. [18 December 2008] Section 403. Bill of Lading, Consignment Note and Warehouse Receipt as Instruments to Order (1) Bill of lading, consignment note and warehouse receipt may be transferred further with an endorsement, if it is directly indicated in the relevant document (hereinafter within the framework of this Division – instrument to order). (2) Endorsement shall transfer all the rights arising from the endorsed instrument to order to endorsee. (3) A debtor may raise only such objections against the legitimised holder of the instrument to order, which refer to the validity of the expression of will of the debtor included in the instrument to order and arise from the content of the instrument to order, or also objections, which the debtor has against the legitimised holder of the instrument to order himself or herself. (4) A debtor has a duty to fulfil his or her obligation only upon receiving the instrument to order with a receipt regarding fulfilment issued by the legitimised holder of the instrument to order. If the obligation is fulfilled partly, a relevant note shall be made on the instrument to order and a receipt regarding partly fulfilment shall be issued to the debtor. [18 December 2008] Section 404. Endorsement Form and Blank Endorsement (1) Endorsement shall be written on the instrument to order or a sheet attached thereto. Endorsement shall be signed by the endorser. (2) The endorsee need not be indicated in the endorsement and the endorsement may be expressed only in the signature of the endorser (blank endorsement). In the latter case endorsement shall be written on the other side of the instrument to order or a sheet attached thereto in order for it to be valid. (3) If a blank endorsement is made, the holder of the instrument to order may: 1) fill in the endorsement on his or her own or other person’s name; 2) endorse the instrument to order further with a blank endorsement or on the name of another person; or 3) transfer the instrument to order further without filling in a blank endorsement and making a new endorsement. [18 December 2008] Section 405. Legitimation of the Holder of the Instrument to Order (1) The person whose hands the instrument to order has reached shall be recognised as the legitimized holder thereof insofar as he or she proves his or her rights with a continued row of endorsements, also if the last endorsement is a blank endorsement. In this respect the deleted endorsements shall be considered as not entered. If any other endorsement follows a blank endorsement, it shall be assumed that the signatory of this last endorsement has obtained the instrument to order on the basis of the blank endorsement. (2) If the instrument to order is lost by the former holder thereof, the new holder who proves his or her rights in accordance with the provisions of Paragraph one of this Section has a duty to return the instrument to order only if he or she has obtained it in bad faith or by admitting gross negligence. (3) A debtor has a duty to check whether the row of endorsements entered in the instrument to order is continuous, however, he or she does not have a duty to ascertain the genuineness of endorsement signatures.
(2) The provisions of this Chapter shall be applicable also to the purchase of securities. [18 December 2008; 15 April 2010] Section 408. Delay of Purchaser (1) If a purchaser, by admitting a delay, fails to accept the goods, a seller is entitled, notifying the purchaser thereof in advance: 1) to transfer the goods for storage in a warehouse or in another safe place for reasonable remuneration at the purchaser’s expense and risk; 2) to sell the goods for a free price, which is not less than the purchase price agreed; or 3) to sell the goods at the purchaser’s expense in a voluntary public auction with intermediation of a sworn bailiff, taking into account the provisions of the Civil Law regarding the sale at an auction and notification of an auction, as well as applying the relevant provisions of the Civil Procedure Law regarding an auction of movable property to the procedures of the auction. (2) The seller is entitled to sell perishable goods or goods, which are subjected to other risk, for a free price without an auction and without notifying the purchaser thereof in advance. (3) If the goods referred to in Paragraph one, Clause three or Paragraph two of this Section are sold for a price lower than has been agreed in the purchase agreement, the purchaser has a duty to pay the difference between the agreed price and the sales price of the goods. (4) If the goods are sold in a voluntary public auction with intermediation of a sworn bailiff, a seller has a duty to notify a purchaser regarding the time and place of the auction within reasonable time period before the auction, moreover, the purchaser is entitled to participate in bidding. The seller has a duty to notify the purchaser regarding the sale immediately. If the seller fails to fulfil the referred to duty, he or she shall be liable for the losses caused to the purchaser. (5) The provisions of this Section shall not limit the rights of a seller which he or she may use in accordance with the Civil Law, if a purchaser admits a delay. [15 April 2010] |