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JOURNAL OF INTERDISCIPLINARY RESEARCH
time. Even in such an exceptional case, however, it is forbidden
to deviate from the client's instructions if this follows from the
concluded contract or from previously stored instructions. In
particular, it is necessary to support § 33 paragraphs 2 and 3 of
the Securities Act. According to him, if the manager has the
option, he is obliged to sell the security at a higher price or buy
the security at a lower price than stated in the instruction, even
without the client's consent. According to Judgement of the
Supreme court of the Slovak Republic No. 3 Obo 186/2007,
otherwise, as in the commissioned manner, he would be liable
for the damage he would cause to the client. In the absence of a
price determination in the client's order, the law imposes, as in
the case of a commission to buy or sell a security for the client's
client, at the most advantageous price that could be achieved
with professional care.
According to Hajduova et al. (2019) in this case, the legislator
allows the manager to be represented by a third party, but with
the risk of being held liable for any damage caused by the third
party. The possibility to be represented cannot be used only in
the case of a contractual prohibition.
The client's obligations primarily follow from the Commercial
Code and the Securities Act. In the first place, it provides the
manager with all the necessary things and information necessary
for the implementation of the subject of the contract in time,
except for those which he has to procure himself. However, the
performance of certain legal acts cannot be carried out without a
power of attorney (Koleva, 2019). The client is obliged to issue
this immediately in writing. Despite the fact that the power of
attorney essentially follows from the content of the securities
portfolio management agreement, it is directed against third
parties and legally has the legitimacy of the manager to act on
behalf of the client. The provisions of the Commercial Code
governing the mandate agreement do not address the
consequences of exceeding the authorization. As follows from
Judgement of the Supreme Court of the Czech Republic No. 33
Cdo 4385/2007, for this reason, it is necessary to proceed from
the general legal regulation of representation on the basis of the
power of attorney contained in the Civil Code.
Given the considerable variety of activities that a trustee must
perform when procuring the purchase or sale of securities for a
trustee, it cannot be ruled out that he will take over other things
for him than just paper securities, such as contracts and the like.
Subsequently, however, it is the agent's obligation to issue them
to the client without undue delay.
In this case, the Commercial Code resolves the issue of the
damage caused in the same way as in the case of the Securities
Commission, with liability for damage to items taken over. It is
also possible to eliminate the risk by optional insurance, while
compulsory insurance is required only if required by the contract
or if the client so requests, but always only on his account
Grancay et al. (2015).
In the commission or mandated method of procuring a purchase
or sale, the manager is obliged to proceed with the necessary
professional care. In the case of procuring the sale of a security
that has certain defects, its role is more demanding, as the other
party would not have to show interest in such a security.
However, the Commercial Code also provides for a situation
where the buyer would be aware of the existence of defects in
the security at the time of concluding the contract for its
purchase and would still be interested in it. In such a case, this
would be a special reason to exclude the manager's liability for
this lack of security. However, it is also true that the buyer's
liability for defects is not excluded if the security should have
had certain properties, but in fact did not. In this situation, in the
opinion of the Supreme Court of the Slovak Republic No. 3 Obo
55/2010, the knowledge of the buyer is no longer examined with
regard to professional care, but only with regard to care
appropriate to the situation. The law of the Slovak Republic
allows a contract that transfers ownership of a security to contain
a tel quel clause (as it is), resp. “Accepted and approved”. Its
application relieves the manager of liability for defects in the
security sold and the acquirer can no longer claim liability for
the defects of the security.
Within the management of the securities portfolio, it is possible
to negotiate remuneration as a whole for all activities, or even in
part. Should the parties agree on remuneration for such
procurement of the purchase or sale of a security, the Securities
Act presupposes an agreement on the amount of remuneration.
In the event of an omission, its amount shall be determined in
accordance with custom at the time of concluding the contract
for procuring the purchase or sale of the security. The right to
payment would arise for the manager after the proper
performance of the agreed activity, regardless of whether it
brought the expected result or not. However, in terms of § 571
paragraph 1 of the Commercial Code, the right to the payment of
the agreed remuneration may be conditioned by the result.
If, in connection with the purchase or sale of securities,
significant costs are expected to arise, the manager is entitled to
a reasonable advance immediately after the conclusion of the
contract (Masood et al., 2020). When subsequently determining
the amount of remuneration, the parties should agree on whether
the remuneration also includes necessary or purposefully
incurred expenses necessary to procure the client's affairs. In the
absence of this arrangement, there is a legal rebuttable
presumption that they are already included in the remuneration.
Section 573 of the Commercial Code limits the content of the
manager's liability by excluding his liability for breach of the
obligation of the person with whom he has entered into a
contract for the purchase or sale of securities. An exception may
only occur if the contract has guaranteed in writing that the other
parties will have fulfilled the obligations to procure the purchase
or sale of the securities.
3.3 Custody of securities
As part of the management of the securities portfolio, the
Securities Act also allows the manager to deposit paper
securities.
As Duľová – Spišáková et al. ( 2017) the negotiation
of the rights and obligations of the contracting parties is based
on the agreement on custody of paper securities contained in §
39 and § 40 of the Securities Act. It is worth noting that in this
case there is no direct reference to the supporting application of
the Commercial Code or the Civil Code. However, as this is a
remunerated type of contract, it is subject to the provisions of
Part Three of the Commercial Code on Commercial Obligations
in matters that are not specifically regulated by the Securities
Act.
As part of the custody of paper securities, the manager, in the
position of custodian, undertakes to take over the paper security
for safekeeping in separate or collective custody and the client,
as the depositor, undertakes to pay him remuneration. However,
the contract must include the identification of the persons who
are authorized to handle the certificated security deposited.
As the name implies, only paper securities can be deposited. As
part of the harmonization of Slovak law with the law of the
European Union, two types of custody of paper securities were
introduced. It is a separate storage and a bulk storage (Dumitru
and Tomescu, 2020). Collective custody is essential for
securities trading, as, (Pauly, 2017), as it makes it possible to
speed up transfers of securities, thereby reducing the cost of
transactions in these securities. In general, a substitutable paper
security is deposited in collective custody and an irreplaceable
paper security in separate custody. Separate custody is defined as
the deposit of a paper security of one depositor separately from
the paper securities of other depositors. The main obligation of
the manager is to return to the client the depositor the same
paper security that was entrusted to him for safekeeping. At the
same time, it is legally liable for damage to the deposited paper
security. An exception is the case of impossibility of averting
damage even with all professional care (Raisová et al., 2020).
Among the basic duties of the manager, we can include the
consistent keeping of records on each paper security deposited in
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