Estonia Commercial Code - Limited Partnership

Estonia Companies Act

Estonia Companies Act Estonia Companies Act Estonia Companies Act

Part V LIMITED PARTNERSHIP 

§ 125. Definition of limited partnership

 (1) A limited partnership is a company in which two or more persons operate under a common business name, and at least one of the persons (general partner) is liable for the obligations of the limited partnership with all of the general partner’s assets, and at least one of the persons (limited partner) is liable for the obligations of the limited partnership to the extent of the limited partner’s contribution.

 (2) The provisions concerning general partnerships shall apply to limited partnerships unless otherwise provided for in Part V of this Code.

 (3) A share certificate shall not be issued with regard to a limited share.

§ 126. Partner

  The provisions concerning partners of general partnerships shall apply to general partners and limited partners unless otherwise provided for in Part V of this Code.

§ 127. Petition for entry in commercial register

 (1) In addition to the provisions of § 83 of this Code, the amount of the contribution of a limited partner, which shall be entered in the commercial register, shall be set out in a petition for entry in the commercial register.

 (2) [Repealed - RT I 2003, 4, 19 - entry into force 01.02.2003]

§ 128. Management

 (1) A limited partner shall not have the right to manage the limited partnership (§ 88) unless the partnership agreement prescribes otherwise.

 (2) A limited partner shall participate as a general partner in the adoption of resolutions of the partners of the limited partnership.

§ 129. Prohibition on competition

  The provisions of §§ 95 and 96 of this Code shall apply to a limited partner only if the limited partner is granted the right to manage the limited partnership by the partnership agreement.

§ 130. Right of limited partner to information

  A limited partner has the rights specified in § 94 of this Code.

§ 131. Representation of limited partnership

 (1) A limited partner shall not have the right to represent the limited partnership unless the partnership agreement prescribes otherwise. The provisions of subsection 98 (3) of this Code shall apply to the right of representation of a limited partner.

 (2) The right to represent the limited partnership granted to a limited partner shall be entered in the commercial register.

§ 132. Extent of liability of limited partner

 (1) A limited partner who has paid a contribution in full shall not be liable for the obligations of the limited partnership. If a limited partner has not paid a contribution in full, the limited partner shall be liable for the obligations of the limited partnership to the extent of the unpaid contribution.

 (2) If a contribution is refunded to a limited partner without observing the provisions of § 133 of this Code, the limited partner shall be liable for the obligations of the limited partnership to the extent of the refunded contribution.

 (3) The provisions of subsection (2) of this section shall also apply if a limited partner is paid the limited partner’s share of profit before the share of loss and contribution of the limited partner are covered.

 (4) An agreement which is in conflict with the provisions of this section and an agreement which exempts a limited partner from payment of a contribution shall not apply with regard to third persons.

§ 133. Reduction of contribution

 (1) The reduction of a contribution of a limited partner shall apply with regard to third persons as of entry in the commercial register.

 (2) The reduction of a contribution shall not apply with regard to a creditor whose claim against the limited partnership arises before entry of the reduction of contribution in the commercial register.

§ 134. Transformation

 (1) If a limited partner joins a general partnership or in the case provided for in subsection 106 (3) of this Code, the general partnership shall be deemed to be transformed into a limited partnership without dissolution. If all the limited partners depart or are excluded from a limited partnership and at least two general partners remain, the limited partnership shall be deemed to be transformed into a general partnership without dissolution.

 (2) Transformation shall be entered in the commercial register on the initiative of the registrar or on a petition of the general partnership.

Part VI PRIVATE LIMITED COMPANY 

Chapter 17 GENERAL PROVISIONS  

§ 135. Definition of private limited company

 (1) A private limited company is a company which has share capital divided into private limited company shares.

 (2) A shareholder shall not be personally liable for the obligations of the private limited company.

 (3) A private limited company shall be liable for performance of its obligations with all of its assets.

§ 136. Share capital

  Share capital shall be denominated in euros. Share capital shall be at least 2500 euros.

Chapter 18 FOUNDATION  

§ 137. Founder

 (1) A private limited company may be founded by one or several persons.

 (2) A founder may be a natural person or a legal person.

§ 138. Memorandum of association

 (1) In order to found a private limited company, the founders shall conclude a memorandum of association.

 (2) The memorandum of association shall set out:
 1) the business name, registered office and address of the private limited company being founded;
 2) the names and residences or registered offices of the founders;
 3) the proposed amount of share capital;
 4) the nominal value and number of shares, and their division among the founders;
 5) the amount to be paid for shares and the procedure, time and place of payment;
 6) if a share is paid for by a non-monetary contribution, the item of the non-monetary contribution and its valuation method;
 7) information on the members of the management board and, if a supervisory board is formed, on its members;
 8) information on procurators or auditors, if appointed;
 9) the projected costs of foundation and the procedure for payment thereof.

 (3) Upon conclusion of a memorandum of association, the founders shall also approve the articles of association of the private limited company as an annex to the memorandum of association.

 (4) The memorandum of association and the articles of association approved thereby shall be notarised and signed by all founders. A representative of a founder may sign the memorandum of association and the articles of association approved thereby if the authorisation document granted to the representative is notarised. Articles of association shall be amended after entry in the commercial register pursuant to the procedure provided for in § 175 and shall not require amendment of the memorandum of association.

 (5) If the private limited company has one founder, the memorandum of association shall be substituted by a notarised foundation resolution signed by the founder.

§ 139. Articles of association

 (1) The articles of association of a private limited company shall set out:
 1) the business name and registered office of the private limited company;
 2) the amount of share capital which may be specified as a specific amount or as a minimum and maximum capital such that the minimum capital shall be at least one-quarter of the maximum capital;
 3) [Omitted - RT I 1996, 40, 773 - entry into force 08.06.1996]
 4) the procedure for payment for shares;
 5) the specific rights attaching to a share, or of a shareholder;
 6) if a share is paid for by a non-monetary contribution, the valuation method of the non-monetary contribution;
 7) the formation and amount of legal reserve;
 71) if there is a management board and supervisory board, the number of members thereof, which may be expressed as a specific number or a maximum and minimum number, and if necessary, also the specifications for the right of representation of the members of the management board;
 8) other obligatory terms and conditions provided by law.

 (2) The articles of association may also prescribe other terms and conditions which are not in conflict with the law. If a provision of the articles of association is in conflict with a provision of law, the provision of law shall apply.

 (3) All founders shall sign the articles of association approved by the memorandum of association. Articles of association which are amended after entry in the commercial register shall be signed by at least one member of the management board or, if the members of the management board are only authorised to represent the private limited company jointly, by all the members of the management board authorised to represent the private limited company jointly.

§ 1391. Articles of association used upon expedited procedure

 (1) The articles of association of a private limited company used upon expedited procedure, and the selection of data to be specified therein shall be established by a regulation of the Minister of Justice.

 (2) The articles of association used upon expedited procedure shall provide for at least the information specified in clauses 139 (1) 1), 2), 4) and 7 of this Code. Share capital shall be set out as a specific amount. The private limited company itself is not allowed to add additional provisions to the articles of association used upon expedited procedure.

 (3) The articles of association used upon expedited procedure substitutes for the memorandum of association and the articles of association provided in § 139 of this Code.

 (4) The articles of association used upon expedited procedure shall be digitally signed by all the founders, indicating the nominal value of the share of each founder.

 (5) The articles of association used upon expedited procedure shall not be used by a private limited company operating in an area of activity subject to special requirements if, in addition to the data provided by this Code, the law requires the presentation of additional information in the articles of association of such company.

 (6) Otherwise, the general provisions of this Code regarding the articles of association of a private limited company apply to the articles of association used upon expedited procedure.

§ 140. Payment for share

 (1) A contribution may be monetary or non-monetary. A share shall be paid for in money unless the articles of association prescribe payment by a non-monetary contribution.

 (2) The founders shall pay for the shares in full before submission of a petition for entry of the private limited company in the commercial register unless the memorandum of association prescribes otherwise.

 (3) The sum to be paid for a share shall not be set off against salary, fees or other such payments by the private limited company being founded or against other claims against the private limited company being founded.

§ 1401. Foundation without making contributions

 (1) If the planned share capital of a private limited company is not larger than 25 000 euros, the memorandum of association may prescribe that the founders are not required to pay for the share upon the foundation of the private limited company. The founder of the private limited company specified in the first sentence of this subsection may be exclusively a natural person.

 (2) Until the shareholder has completely paid the contribution under the agreement specified in subsection (1) of this section, the shareholder shall be liable to the private limited company for the obligations of the private limited company in the amount of the outstanding contribution, unless the obligation of the private limited company can be performed on the account of the assets of the private limited company.

 (3) In case of the declaration of bankruptcy of the private limited company, the claim specified in subsection (2) of this section may be filed on behalf of the private limited company exclusively by the trustee in bankruptcy.

 (4) Until the complete payment of the contributions by all the shareholders, the private limited company shall neither increase nor decrease the share capital, and in addition the private limited company shall not make any disbursements to the shareholders. The prohibition on disbursements shall not comprise the salary and other remuneration paid to the shareholder.

 (5) Contributions to the share capital shall be governed by the provisions of § 140, §§ 142–143, subsection 144 (2) and subsections 520 (2), (4) and (5) of this Code.

 (6) An agreement which is in conflict with the provisions of this section and an agreement which exempts a shareholder from payment of a contribution shall not apply with regard to third persons.

§ 141. Payment of monetary contribution

  Upon foundation, the founders shall open a bank account in the name of the private limited company being founded, into which they shall pay their monetary contributions.

§ 142. Non-monetary contribution

 (1) A non-monetary contribution may be any thing which is monetarily appraisable and transferable to the private limited company or a proprietary right which may be the object of a claim.

 (2) A non-monetary contribution shall not be service or work provided to the private limited company or the activities of the founders in the foundation of the private limited company.

 (3) A shareholder shall give notice of the rights of third persons with regard to a non-monetary contribution.

 (4) If, at the time of entry in a commercial register of a private limited company or increase of share capital, the value of a non-monetary contribution is lower than the nominal value of the share received out of the contribution or the share to be increased, the private limited company may demand payment by a shareholder of the contribution in money to the extent to which the value of the contribution was lower than the nominal value. The limitation period of the claim is five years after the entry in the commercial register of a private limited company or increase of share capital.

§ 143. Valuation of non-monetary contribution

 (1) In case of a non-monetary contribution, the sufficiency of the value of the object of the contribution for the nominal value of the share of the shareholder obliged to make the non-monetary contribution shall be valuated by the management board of a private limited company.

 (2) The usual value of a thing or right shall be taken as the basis for the valuation of a non-monetary contribution.

 (3) If the share capital of a private limited company is at least 25 000 euros and the value of a non-monetary contribution exceeds 1/10 of the share capital or if all non-monetary contributions of such private limited company collectively form more than one-half of the share capital, the valuation of the sufficiency of the value of the non-monetary contribution in regard to compliance with the requirements specified in § 142 of this Code shall be verified by an auditor. The liability of an auditor shall be governed respectively by the provisions concerning the valuation of a non-monetary contribution of a public limited company and the liability of an auditor.

 (31) [Repealed - RT I 2010, 77, 589 - entry into force 01.01.2011]

 (4) The members of the management board and the person obliged to make a contribution shall be solidarily liable for any damage incurred as a consequence of an inaccurate valuation of the non-monetary contribution.

 (5) Within one year after entry of the private limited company in the commercial register, the private limited company may acquire an asset with a value exceeding one-tenth of the share capital from a shareholder or a person with an economic interest equivalent to that of the shareholder on the basis of a contract only by a resolution of the shareholders.

 (6) The asset specified in subsection (5) of this section shall be valuated pursuant to the procedure provided for in this section.

 (7) The management board shall, immediately after valuation of the asset specified in subsection (5) of this section, submit the contract for transfer of the asset together with the documents in proof of the value of the asset to the commercial register. In the cases specified in subsection (3) of this section, the documents specified in the previous sentence and a signed opinion by an auditor concerning the valuation of the asset shall be submitted to the commercial register immediately after the auditor has inspected the valuation of the asset.

§ 1431. [Repealed - RT I 2010, 77, 589 - entry into force 01.01.2011]

§ 144. Petition for entry in commercial register

 (1) In order to enter a private limited company in the commercial register, the management board shall submit a petition to the commercial register which shall set out the information specified in § 145 of this Code. The following shall be appended to the petition:
 1) the memorandum of association;
 2) the articles of association;
 3) a bank notice concerning the payment of share capital if pursuant to the memorandum of association the contributions shall be made before the entry of the private limited company in the commercial register;
 31) names, personal identification codes or registry codes and addresses of shareholders, and the nominal value of the share of each shareholder. Section 62 of this Code applies to the addresses and personal identification codes or registry codes;
 4) the names and personal identification codes of the members of the supervisory board, and of auditors, if the company has auditors and, in the case of expedited procedure, their digitally signed consent regarding assumption of the position of a member of the supervisory board or an auditor;
 41) notarised consent of all members of the management board to becoming a member of the management board and a certification that no circumstances arise, which pursuant to law preclude being a member of the management board;

 (5)
 51) information on the planned activity;
 6) upon payment of a non-monetary contribution – if pursuant to the memorandum of association the contributions shall be made before the entry of the private limited company in the commercial register, the agreement for transfer of the contribution to the private limited company and the certification of the management board regarding the fact that the contribution has been transferred to the private limited company and its value covers the nominal value of the share, and also, in the cases specified in subsection 143 (3) of this Code, a sworn auditor's report concerning the verification of the valuation of the sufficiency of the value of the non-monetary contribution;

 (61) [Repealed - RT I 2010, 77, 589 - entry into force 01.01.2011]
 7) data on the telecommunications of the private limited company (telephone and fax numbers, e-mail and Internet home page address, etc.);
 8) other documents provided by law.

 (2) If the non-monetary contribution is an immovable or a movable subject to registration, an extract from the land register or the register in which the movable is registered shall be appended to the petition.

 (3) Any other petition submitted to the commercial register shall be signed by a member of the management board. A petition for the entry of a new member of the management board in the commercial register shall be signed by the new member of the management board, who shall certify in the petition that he or she has the rights to be a member of the management board pursuant to law. A petition for the entry of a member of the management board in the commercial register shall indicate the final date of the period of office if pursuant to the articles of association the member of the management board shall be appointed to office for a fixed term. If foundation is done by way of expedited procedure, a member of the management board shall also confirm his or her right, according to law, to act as a board member in the petition for entry of the private limited company in the commercial register. If the members of the management board only have the right to represent the private limited company jointly, all the members of the management board entitled to represent the private limited company jointly shall sign the petition submitted to the register.

 (31) [Repealed - RT I 2009, 13, 78 - entry into force 01.07.2009]

 (4) A private limited company is not entered in the commercial register if the petition for entry in the register is submitted later than one year after the date of conclusion of the memorandum of association or receipt of the foundation number specified in subsection 520 (1) of this Code.

§ 145. Information to be entered in commercial register

 (1) The following shall be entered in the commercial register:
 1) the business name of the private limited company;
 2) the registered office and address of the private limited company;
 3) the amount of share capital;
 31) the foundation without making the contribution;
 4) the date of conclusion of the memorandum of association;
 5) the names and personal identification codes of the members of the management board;
 6) the members of the management board entitled to represent the private limited company differently than provided for in subsection 181 (1) of this Code;
 7) the beginning and end of the financial year of the private limited company;
 8) other information provided by law.

 (2) The following shall be appended to a petition for the deletion of the entry specified in clause (1) 31) of this section:
 1) a bank notice concerning the payment of share capital;
 2) upon payment of a non-monetary contribution – the agreement for transfer of the contribution to the private limited company and the certification of the management board regarding the fact that the contribution has been transferred to the private limited company and its value covers the nominal value of the share, and also, in the cases specified in subsection 143 (3) of this Code, a sworn auditor's report concerning the verification of the valuation of the sufficiency of the value of the non-monetary contribution.

§ 146. Liability of founders and members of management board and supervisory board upon foundation of private limited companies

 (1) The founders of a private limited company, the members of the management board and supervisory board shall be solidarily liable for damage caused to the private limited company by submission of inaccurate or incomplete information, incorrect valuation of contribution or foundation expenses or making contributions using the assets specified in subsection 4 (1) of the Money Laundering and Terrorist Financing Prevention Act or breach of other obligations upon the foundation of the private limited company, unless a founder or a member of the management board or supervisory board proves that he or she was not aware nor should have been aware of the circumstances which caused the damage.

 (11) A claim for payment of compensation to a private limited company for damage specified in subsection (1) of this section may also be submitted by a creditor of the private limited company if the assets of the private limited company are not sufficient to satisfy the claims of the creditor. In the case of declaration of bankruptcy of a private limited company, only a trustee in bankruptcy may file a claim on behalf of the private limited company.

 (2) In addition to shareholders, the persons on whose account a private limited company was founded are also liable on the basis provided in subsection (1) of this section. A person is not released from liability regardless of whether or not he or she was aware of circumstances if a shareholder acting on the behalf thereof was or should have been aware of such circumstances.

 (3) An agreement which derogates from the provisions of subsections (1), (11) and (2) of this section shall only be valid with respect to the creditors of a private limited company if such agreement was entered into in the course of bankruptcy proceedings of the private limited company.

 (4) The claims provided by subsections (1), (11) and (2) of this section expire after five years of the entry of a private limited company in the commercial register and, in the case the act which constituted the basis for the causing of damage was committed at a later time, five years after the commission of such act.

§ 147. Transactions concluded before entry in commercial register

 (1) Persons who conclude a transaction in the name of a private limited company being founded before entry of the private limited company in the commercial register shall be solidarily liable for performance of the obligations arising from the transaction.

 (2) The obligations specified in subsection (1) of this section shall transfer to the private limited company as of entry of the private limited company in the commercial register if the person who concluded the transaction had the right to conclude the transaction.

 (3) If a person does not have the right to conclude a transaction, the obligations arising from the transaction shall transfer to the private limited company if the shareholders approve the transaction by a resolution.

 (4) If the assets of the private limited company are not sufficient to satisfy the claim of a creditor of the private limited company, the founders shall be personally and solidarily liable to the creditor of the private limited company for the obligations of the private limited company to the extent that the assets of the private limited company are decreased due to the obligations incurred for the private limited company before entry of the private limited company in the commercial register. The limitation period for such claim shall be five years from entry of the private limited company in the commercial register.

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