91 / 391
COMMERC I AL LAW
77
pledge agreement for a valid pledge transaction. According to another
opinion with which we agree, the mandatory quality of this term has no
supporting evidence, and the pledge could be registered even after expiry
of this term. The registration of the pledge is essential.
The right of pledge on elements subject to the pledge arises through
registration. Since the pledge on a commercial enterprise is a sort of pledge
without delivery of possession, delivery of possession to the pledgee is
not necessary. The owner of the enterprise is entitled to use the pledged
goods in his or her possession for the ordinary conduct of commercial
activity. Any extraordinary transactions such as transfers, limitations by
a limited real right, transport to another place, or exchanges of pledged
goods with others are subject to the approval of the pledgee. The owner of
the enterprise also has an obligation to protect the value of assets subject to
a pledge in addition to this important limitation on the power of disposition
over the pledged goods. A default in fulfillment of this obligation is also
subject to penal sanction.
Another consequence of the registration of a pledge on a commercial
enterprise is its effect against third persons. This right of pledge is effective
against everyone who acquires the commercial enterprise. This right may
be enforced against not only those who acquire the commercial enterprise,
but also against those who acquire the elements of pledged assets in the
registry district. Contrarily, acquisitions of separate elements of pledged
assets by third persons out of the registry district are protected.
The pledge registered with the trade or craftsmen registry must be
notified to other relevant registries as well. Notification is necessary to the
registry of motor vehicles if there are vehicles among the elements included
in the pledge, to the patent registry for patents, to the trademark registry
for trademarks, to the mines registry for ore, and to the trade registry
where the branch office is registered. In case the immovable on which the
enterprise is established belongs to the owner of the enterprise, the pledge
on the commercial enterprise must be notified to the land registry where
the immovable is registered.
Current Problems Concerning Pledges on Commercial Enterprises
Public notary in registry district.
LPCE requires that the pledge
agreement be prepared by a public notary in the registry district of the