COMMERCIAL LAW Dr. Özlem Döğerlioğlu Işıksungur Notes
ENTERPRISE • Capital • Labor • Entrepreneur • Organisation • Specific purpose • Craftsman enterprises are not accepted as commercial enterprise.
DEFINITION of ENTERPRISE Article 11 of TCC • “An enterprise that will be operated permanently and independently aiming to generate income which exceeds the limit prescribed for the craftsman enterprises.”
COMMERCIAL ENTERPISE Commercial Provisions are applied to Commercial Affairs Commercial Interest for the Commercial Affairs. Affairs related to Commercial Enterprise, Commercial Affair Application of commercial customs for the commercial affairs The case is “commercial case” if it is concerning both parties’ enterprises The person who operates the commercial enterprise, in principal, MERCHANT First: Check whether there is a “commercial enterprise or not” If the answer is yes, then above mentioned results
ELEMENTS OF “COMMERCIAL ENTERPRISE” • There are four components of commercial enterprise: • Economic activity- • It must be “generate income oriented” • It must be continuous • It must be independent • Its scope must exceed the craftman’s scope of activities
ELEMENTS: 1-Economic Activity • The main purpose and objective of commercial enterprise must be to generate income. • What should be taken into consideration? • Purpose/Intention of the entrepreneur is of importance • Result is not of importance (to profit or to lose money). • Way of income spending is not of importance • Legal status of the person who operates enterprise is not of importance • Doctor/Engineer
ELEMENTS: 2-Continuity • Commercial enterprise must have been established to operate continuously (not temprorary or fortuitous). • What should be taken into consideration? • Intention and nature of the undertaking • Disruption of the operation? • Periodical activities? • Running school buses for the students during the periods when the schools are open • Operating hotels in winter
ELEMENTS: 3-Independency • The organisation must be independent from any other • Independency for entrepreneur& enterprise • Branches? • Agency?
ELEMENTS:4- Exceeding of the craftman’s scope of activities • Distinction concernig whether an enterprise is a commercial enterprise or craftsman enterprise shall be made according to the Council of Ministers Decree
Craftman • Article 15 of TCC
Structure of Commercial Enterprise • Human--- Merchant • Person who operates commercial enterprise on his name • Assets---- TCC Article 11.3
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011 CONCEPT • A merchant has a commercial enterprise. BUT • A merchant may have more than one commercial enterprises • To have more client • To give better service or ..... • The relationship between/among these commercial enterprises • Independent from each other OR • Dependent (Head Office – Branch)
HEAD OFFICE IN TURKISH LAW • Every commercial enterprise must have a head office (principal place of business) • It is generally accepted that head office is the place from where all commercial, administrative and legal affairs of commercial enterprise are organised and conducted.
HEAD OFFICE IN TURKISH LAW • Commercial enterprises operated by a real person---- head office can be different from the residence(domicile) of real person • Commercial enterprises operated by a legal person---- head office is the place mentioned in the articles of association/charter
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011 BRANCH • To qualify as a Branch : • The unit • should be dependent to Head Office • Head office and branch --- belongs to same real person or legal person • Branch cannot adopt a business policy independent from the head office • Loss and profit belongs to head office • should be independent from head office in its dealings with the third parties C. should have its own place, management and accounting
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011 BRANCH IMPORTANT! • Although it is not a branch, usage of “branch” term as if it is a branch • Seperated capital allocated to the branch • Collection of cheques and draft by the branch • The above mentioned points are not of importance to be a “branch”
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011 LEGAL CONSEQUENCES OF BEING BRANCH • Registration to Register of Commerce • Registration to Chambers- registration to the chambers where the branch takes place C. Trade-name Branches should use their Head Office trade names by mentioning that they are branch Legal person----Ziraat Bank Konak Branch Real person---- Neslihan Yargıcı Cevahir AVM Branch D. Representation
CONCEPT of “merchant” • Regulated in Article 11-23 of TCC • Merchants: • Real (natural) persons • Legal person • In TCC, “merchant” concept regulated seperately from the point of “real person” and “legal person”
MERCHANT REAL (NATURAL)PERSONS LEGAL PERSONS • Definition: Person who operates a commercial enterprise, at least in part,under his name. • Elements: -Existence of a commercial enterprise -Operation of the commercial enterprise, at least in part -Operation of the commercial enterprise, at least in part, under the name of the person concerned • Commercial companies • Associations & Foundations which operate commercial enterprise to achieve their targets • Entities which are formed by State, Private Provincial Administration, Municipality, Village and other public corporations to be operated in a commercial manner or pursuant to their statutes of foundation to be managed according to private law
REAL PERSON merchant-DEFINITION • Definition: (Article 12.1 TCC) • The person who operates a commercial enterprise, at least in part, under his name
REAL PERSON merchant-CONDITIONS • A- Existence of a Commercial Enterprise • General rule: To qualify as a merchant, existence of commercial enterprise is the first condition • Elements of commercial enterprise? BUT A person who although has not established a commercial enterprise, enters into relationship with third parties as if he had formed a commercial enterprise, shall be held liable like merchant against third parties in good faith
REAL PERSON merchant-CONDITIONS • B- Operation of the commercial enterprise • What is the meaning of “ operation of commercial enterprise? • Establisment of an enterprise • Enter into business dealings with third parties • De facto operation • TCC Article 12/II • “Bir ticari işletmeyi kurup açtığını, sirküler, gazete, radyo, televizyon ve diğer ilan araçlarıyla halka bildirmiş veya işletmesini ticaret siciline tescil ettirerek durumu ilan etmiş olan kimse, fiilen işletmeye başlamamış olsa bile tacir sayılır” • The person involved should have started the operations. If he/she has entered the establishment • with register of commerce and publication or • has made annnouncements to the public, whether through newspapers or by distributing letters or leaflets, adverstising establishment, • he would still be regarded as a merchant • Rights&obligations of being merchant
REAL PERSON merchant-CONDITIONS • C- Operation of the commercial enterprise at least in part, under the name of the person concerned • “at least in part” – jointly operation of enterprise by more than one person • Operation of the enterprise by merchant is not compulsory • On behalf of merchant, anyone may operate the commercial enterprise • “Merchant character” belongs to whom? Worker?
SPECIAL STUATIONS • People who are minor and who are under guardianship • People barred from involving in commercial business • Dealing in commercial activities depended on a permission
SPECIAL CONDITIONS- MERCHANT? • A- People who are minor and who are under guardianship : According to TCC Article 13, if the commercial enterprise is operated by a legal representative (guardian by nature or curator) on behalf of the people who are minor and who are under guardianship, these people shall be deemed as merchant • Legal responsibility derived from being merchant belongs to people who are minor and who are under guardianship but criminal liablity belongs to guardian by nature or curator
SPECIAL STUATIONS • B-People barred from involving in commercial business • Article 14/I of TCC: The person who are deprived of or prohibited from dealing in commercial activities because of • Their personal status or • The position/profession they occupy • Prohibition: Legal provision or Judgment • Permission required: (person or legal authority) • Deemed as merchant accordingly, if they are engaged in commercial enterprise
SPECIAL STUATIONS • B- People barred from involving in commercial business-Cont. • Example: Civil servants • prohibition related to commerce • If operates commercial enterprise • Shall be deemed as merchant • At the same time, the person shall be subject to legal, criminal and disiplinary sanctions according to their private law • For civil servants disiplinary sanction
SPECIAL STUATIONS • C- Dealing in commercial activities depended on a permission
Legal person merchant • Commercial companies • Associations which operate commercial enterprise • Foundations which operate commercial enterprise • Entities which are formed by State, Private Provincial Administration, Municipality, Village and other public corporations to be operated in a commercial manner or pursuant to their statutes of foundation to be managed according to private law
Consequences of being MERCHANT • Regulated in Article 18- 23 of NTCC • Subject to banckruptcy • Registration to the register of commerce • Registration to the Chambers • Selection and usage of trade name • Subject to presumption of commercial affair • Subject to trade customs and usage • To keep commercial books • To behave as a prudent business man • To claim fee and interest • To claim discount in the fee and interest • To pass an invoice • Right of objection against invoice and confirmation letter within 8 days • Form requirement for all notices and notification • Benefit from the easiness concerning the usage of lien • Subject to special provisions concerning sales and change of goods.
Affairs • Ordinary affairs– commercial affairs • Commercial affairs are different from ordinary affairs and subject to different rules
COMMERCIAL AFFAIRS A- TCC Article 3 • The ones which are regulated in the TCC • The ones which are concerning the commercial enterprise B- TCC Article 19- presumption • The debt of the merchant is commercial. (19.1) • Exception for real person merchants C-Affairs which is deemed commercial for one party (19/2) The contracts which are deemed as commercial for one party, shall be accepted as commercial for the counter party
A-The Affairs Regulated in TCC • The affairs regulated in the TCC, shall be deemed as “commercial” whether it is related to commercial enterprise or not—absolute commercial affair • Example • Valuable document • Unfair competition
A- Affairs concerning commercial enterprise • These are: • All prosedure and acts that take place in the other Acts (Laws-Codes) and that pertain to the commercial enterprise • All acts of the commercial enterprise
B-Presumption of “commercial affair” Real Person Merchant Legal Person Merchant • Two options to be deemed as ordinary • Explicitly declaration of the counter party • Ex. Purchasing washing machine for personal usage • As the case may be • Ex. Puchasing washing machine, (there is no explicitly declaration) but the delivery address is home address. • All of the affairs of the legal person merchant are commercial • Ex. Company, rents a property for the employees’ usage.
What happens if the affair is accepted as commercial for one party and ordinary for the counter party? • TTC 19.2 • Unless otherwise provided in the TCC, any contract that has commercial character for one party shall be deemed as commercial for the counter party • Ex. Sales contract between merchant and civil servant • Conditions • Contract • Unless otherwise provided in the TCC • If Relationship between the parties derived from tort or unjust enrichment, this provision is not applicable
Consequences of Commercial Affairs • Validity of Presumption of solidarity (joint and several obligation) concerning the commercial affairs • Application of commercial interest • Legal limitation periods • Application of commercial provisions • Legal Disputes – Commercial Case
Presumption of solidarity • Solidarity : Consecutively, • joint and several liability concerning the commercial affairs • Generally two types of solidarity: • Among creditors: Payment of total debt to one of the creditor • Among debtors: Right of creditor to apply anyone of the debtors • Article 7 of TCC • In TCC, solidarity among debtors • Conditions: • Two or more person should be in debt against one creditor • For one of them or both of them, source of the debt should be “commercial affair” • Unless otherwise mentioned in Law or contract • The guarantors --- “co-debtor and joint guarantor” • YTK Md. 7 “İki veya daha fazla kişi içlerinden yalnız biri veya hepsi için ticari niteliğe haiz bir iş dolayısıyla diğer bir kimseye karşı birlikte borç altına girerse, kanunda veya sözleşmede aksi öngörülmemişse müteselsil sorumlu olurlar Ticari borçlara kefalet hâlinde, hem asıl borçlu ile kefil, hem de kefiller arasındaki ilişkilerde de birinci fıkra hükmü geçerli olur. ”
Interest • Concept of “interest” • Definition: A fee which one party pays to the counter party (in return for deprivation of the usage of money for a specific period ), for the privilege of using borrowed money
Types Of Interest • Capital interest- Default interest • Simple interest-Compound interest • Legal interest-Conventional interest
What is Trade-name? • Trade-name is a name that is used by merchant uses • It is different from “enterprise-name”
Trade-name&Name Name Trade-name • It is not possible to sell & transfer • Exceptionally, different people may have same name&surname • One person has one name&surname • You may sell and trans with commercial enterprise • It is not possible for two person to use the same Trade-name. • Merchant will use different trade-name for each commercial enterprise
Where is it regulated? • It is regulated in Article 39-52 of TCC.
What is enterprise name? • Regulated in Article 53 of TCC
Composition of Trade-name forReal Person Merchant • Regulated in Article 41 of TCC • Name + Surname • No abbrevation related to name&surname • Annexes according to Article 46 of TCC