We have gathered here a selection of various practical questions and answers that could be of interest to our customers. This is general information that does not constitute legal aid. Please contact us directly for legal assistance. We are constantly updating the section.
LABOR LAW
I am a small business. The driver who worked in our company caused an accident in traffic, which resulted in damage to a private person. As an undertaking, am I solely liable for the damage caused by the employee or is the employee also liable?
The basic rule provided by the Employment Contracts Act is that if an employee is liable for damage caused to a third party in the course of performing his or her duties, the employer must release the employee from the obligation to compensate for damage and incur necessary court costs and perform these obligations before the third party. After that, the employer may demand compensation for the respective damage from the employee, taking into account the restrictions in law. At the same time, the Supreme Court has found in one decision that if, for example, an insurance company has compensated the victim for non-proprietary damage on the basis of the Traffic Insurance Act, this does not preclude the victim from filing an additional claim for compensation for non-proprietary damage under the Law of Obligations Act. The injured party has the right to claim full damages from all joint and several debtors responsible for causing the damage, regardless of the share of liability of the perpetrators in relation to them. Thus, in practice, both the employer and the employee may be jointly and severally liable for damage caused to third parties.
I worked as a CEO in a company selling cleaning equipment. My employment contract recently ended, but the contract was agreed restriction of competition, that means for one year after the end of the contract, I am not allowed to work for the former employer 's competitors. The employer had to pay me 20% of the last salary for complying with the competition restriction. In my opinion, however, it is too small and does not compensate for what I am currently losing due to the restriction. What to do?
The Employment Contracts Act prescribes the conditions under which a restriction of competition agreement is valid after the termination of the employment contract. One of the required conditions is that the employer pays reasonable compensation for the restriction. As the amount of compensation is not specified by law, the parties can negotiate it with each other. However, the parties may not always be satisfied with the amount of compensation agreed and the dispute must be settled by a court. The courts have made different assessments in different judgments as to which principles should be followed and what the amount of compensation could be justified. For example, the court has found that in the case of a salesperson, the amount of compensation is insufficient ca 20% of salary. As a general rule, the higher the restrictions, the higher the compensation must be - compensation in the range of 50-60% of previous earnings may also be justified. However, the courts have not held that the amount of compensation should be equal to the amount of the employee's last salary, but depends on the circumstances of the particular situation. Therefore, higher compensation may also be required.
I am an entrepreneur who wants to hire a foreign worker (Ukrainian builder). Can he also be given a mandate? What requirements apply to me in this regard at all?
A contract under the law of obligations may also be entered into with a migrant worker, it is not only an obligation to enter into an employment contract. Workers living in Estonia on the basis of a residence permit generally have the right to work in Estonia. As of 01.09.2013, no separate work permit will be issued in Estonia. An worker who is legally staying temporarily in Estonia (for example, on the basis of a visa or visa waiver) and whose employment has been registered with the Police and Border Guard Board before starting work may work in Estonia for a short period of time. Short-term employment can be registered for up to 365 days in a 455-day period. You can register for short-term employment as a seasonal job for up to 270 days a year. The general requirements for the registration of short-term employment are as follows: 1) the worker has the qualifications, education, state of health and work experience required for the performance of the job and the necessary professional skills and knowledge; 2) the employer is registered in Estonia; 3) the employer pays the worker a salary, the amount of which is the average annual gross monthly salary in Estonia last published at the time of application.
CONTRACT LAW
I bought the goods from the e-shop. However, when used at home, it turned out that it did not suit me. Can I return the purchased goods to the e-shop?
Yes it's possible. According to the Law of Obligations Act, the customer has the right to withdraw from the contract concluded by means of communication within 14 days from the time when the product reached him. However, the trader has an obligation to take back the goods. However, it should be borne in mind that in order to exercise this right, the goods ordered from the consumer's e-shop may not be used in any other way than necessary to test the nature, characteristics and function of the goods in the same way . However, if the product has been used in such a way that the product has been damaged, the e-shop has the right to reduce the refundable fee according to the decrease in the value of the goods.
I bought a vacuum cleaner, unfortunately there was a manufacturing defect. I contacted the dealer who took the device for repair and promised to return after two weeks corrected. Unfortunately, even after the third week, the trader had not received a message and I contacted the trader myself. It turned out that the store had forgotten to order the necessary spare part on time. What are my rights?
From time to time it happens that the purchased thing needs repair. However, an additional problem may arise if the seller spends too much time repairing the item. The law does not specify the reasonable time required for repair. The Consumer Protection and Technical Surveillance Authority (CSA) is of the opinion that, as a general rule, repairs should not take more than a few weeks; as an exception, for technically more complex products, not more than 3-4 weeks. However, the trader must not cause the consumer undue inconvenience, such as running away from the consumer. In this case, however, the workshop should have informed you in advance that the repair was delayed. In such a situation, the consumer has the right to demand a refund from the seller due to a material breach of contract.
How is the trader protected against a dishonest buyer who could make unfounded claims against the store, for example? For example, you buy an apple from our e-shop today, but announce in two months that it had rotted at the time of purchase. How to protect yourself, because there is no way to prove such a thing?
The right of withdrawal is regulated in the Law of Obligations Act, but the 14-day right of withdrawal does not apply, inter alia, to the transfer of a thing that deteriorates or expires rapidly. It must also be borne in mind that, in the case of consumer sales, the consumer must notify the seller of the lack of conformity within two months of becoming aware of the lack of conformity. The commentator of the law argues that the obligation applies universally to all sales contracts, regardless of who the buyer is, but the consumer has a longer notice period. The moment of the consumer's obligation to notify of the defect is very important - the obligation to notify from the moment when he or she actually discovered the defect (§ 220 (1) of the Law of Obligations Act). If the non-conformity of the sold thing with the terms of the contract is such that the buyer should have discovered the defect during the post-delivery inspection, the mere fact that the buyer does not report the defect within a reasonable time after receipt of the sold item. In other words, in the case of a rotten apple, the defect is obvious immediately and the seller must be notified immediately if such an apple is received. It is not possible to wait two months, because there are problems with proof, because the apple no longer exists in its original form by that time. A separate issue is the seller's liability, for example, if a rotten apple caused the buyer a later health damage.
LAW OF REAL ESTATE
We want to give a significant loan to a company that wants to expand its business. What collateral is required of him to secure a loan? Which guarantee is legally the most reliable?
We recommend using a mortgage. In a situation where a company has granted a loan but the borrower is in financial difficulties for some reason, the lender has an advantageous situation if a mortgage has been set up in his favor, which can be realized if necessary and thus get his money back. Although a mortgage is a popular guarantee in the eyes of many creditors, its establishment and use are subject to some control by the legislator. Thus, a formal requirement for notarial certification is prescribed by law in accordance with the Law of Property Act for a mortgage agreement. A lien is a right of realization; in the event of non-performance or improper performance of a claim secured by a pledge, the creditor has the right to demand satisfaction of the money received from the sale of the pledged property. This means that if, for example, a mortgage has been set up to secure a loan, the mortgagee may demand the sale of the mortgaged property. The money received from the sale can cover your claim, as well as a collateral claim, including interest and a contractual penalty.
BUSINESS LAW
We got into an argument with our business partner, but we are both shareholders in equal shares (50% -50%), as well as both members of the management board. Will the court be able to recall a member of the Management Board?
The Commercial Code stipulates that a member of the management board may be recalled and appointed by a court for a good reason. The law gives a minority shareholder and also a stagnant 50% shareholder the opportunity to demand the removal of a member of the management board through a court in a situation where there would be grounds to recall a member of the management board by decision of shareholders. An action for removal of a member of the management board filed on the basis of the Commercial Code is a legal remedy applicable to the protection of a private limited company in a situation where the member of the management board behaves harmfully or is unable to manage the company but cannot be recalled. The courts have not considered it sufficient simply to have a business dispute, the recall is justified if a member of the management board has acted to a significant extent against the interests of the private limited company.
We are a shop selling building materials. The private limited company bought the goods from us. When selling the goods, we also demanded a personal guarantee from the members of the management board of the private limited company. Unfortunately, the company owed us, do we have the right to make a claim against the members of the management board of the private limited company arising from the surety?
Credit is often given to the buyer at the wholesaler, but the board member must provide a personal guarantee as security. If the buyer receives the goods but is unable to pay for them, the wholesaler (creditor) can already apply to the member of the management board for the performance of the obligation and demand performance from him. A member of the management board either pays the debt voluntarily or can file a claim in court. It must also be borne in mind that the consumer protection provisions of the Law of Obligations Act do not apply to a contract entered into to ensure the performance of a private limited company's partner and a member of the management board.
Due to the difficult economic times, the net assets of our company have decreased. What are the legal obligations that I have to make in order to comply with the Commercial Code?
The Commercial Code stipulates that if a private limited company has less than half of the share capital or less than 2,500 euros or other minimum share capital provided by law, shareholders must decide: 1) to reduce or increase the share capital provided that the net assets the amount of the specified share capital or other minimum amount of the share capital provided by law, or 2) the adoption of other measures; 3) the dissolution, merger, division or transformation of a private limited company or the submission of a bankruptcy petition. Therefore, a solution must be found between these options and a decision made according to the current circumstances.
DATA PROTECTION
One blog contains false information about me many years ago. Can I request such information removal from the blog?
Yes, it can be requested. To do this, you must submit a request to the blogger to stop processing your personal information. This issue is governed by Regulation (EU) No 2016/679 of the European Parliament and of the Council (General Data Protection Regulation - GDPR). Pursuant to that Regulation, the data subject has the right to request that the controller delete personal data concerning him or her without undue delay. The controller shall be obliged to delete personal data if at least one of the following circumstances applies: (a) the personal data are no longer necessary for the purpose for which they were collected or otherwise processed; (b) the data subject withdraws his or her consent to the processing; (c) the data subject objects to the processing of personal data and there are no overriding legitimate reasons for processing, or the data subject objects to the processing of personal data. If the blog owner refuses to comply with your request, you can turn to the Data Protection Inspectorate, for example, to protect your rights.
PROCUREMENT
I own a construction company. I wish participate in public procurement as a tenderer. What do I need to pay attention to in order to participate?
In particular, the requirements for the tenderer must be examined. The Public Procurement Act stipulates the grounds on which the contracting authority must exclude a tenderer from a public procurement and may not enter into a contract with it. The purpose of the qualification conditions is to enable the contracting authority to check whether the tenderer is suitable to carry out the activities necessary for the performance of the contract. The tenderer may be required as a condition of qualification to have a certain amount of turnover, the number of work performed, the existence of certain experience in the employees, etc. The higher the amount of the procurement, the more complex the requirements may be. The qualification conditions can be found in the section “Grounds for exclusion and qualification conditions” next to the procurement. Be sure to be careful when filling in the procurement passport, because even in your opinion, even a clerical error can cause exclusion from the procurement.
Can a vendor require my company as a provider for example a certain amount of net turnover? Can there be restrictions on this?
Yes, it may be required. The Public Procurement Act stipulates that the contracting authority may require the tenderer to have a net turnover in an amount which may not exceed twice the estimated value of the contract. If, due to the risks related to the performance of the procurement contract, it is necessary to determine the annual turnover requirement in a larger amount, the contracting authority must substantiate this in the basic documents of the public procurement. It is therefore proportionate to require tenderers to have a minimum annual net turnover of twice the estimated value of the contract, a rule which may be disregarded only in exceptional cases. For example, if the estimated value of the contract is EUR 100 000, the tenderer could be required to have had an annual or average net turnover of at least EUR 200 000 for the last three years. Also, according to settled case law, the contracting authority may not impose disproportionately high qualification conditions and the required net turnover may exceed the estimated value of the contract by a maximum of 2-3 times.
PENALTIES
I was in a tumultuous youth, often acting recklessly, which is why the county court convicted me in 2013, imposing a financial penalty on me. However, the same decision did not enforce the sentence during a probationary period of one year and six months. I would like to write to the bailiff to close the proceedings due to the limitation period and not to recover this amount. Is this claim obsolete by now?
According to the Code of Enforcement Procedure (TMS), a bailiff terminates enforcement proceedings for a pecuniary penalty and a pecuniary penalty for recovery due to the expiration of enforcement if the penalty has not been collected within seven years of the entry into force of the criminal judgment. According to the TMS, the limitation period for the execution of the decision is suspended for a specified probationary period. Due to the fact that a probationary period was applied, the claim has not yet expired.