Chapter 8

LAW OF COM MER CIAL ENTERPRISE

Res. Asst. Emin ÇAMU RCU'

Th.e Law of Comm ercial Enterprise is a part of the privat e law.

According to Article 1 of the Turkish Commercial Code (TCC) (Code No:
6102)1, the TCC is an inseparable part of the Turkish Civil Code (Code No:
4721)2. The rules and principles about coınmercial enterprises do not merel y
exist in the TCC; there are also other codes such as the Law on the PJedg e of
Movables in Comm ercial Transactions (Law No: 6750)3. Additi onally, a
number of concep ts related to commercial enterprises are regula ted under
the Turkisb Code of Obligations (Code No: 6098)4, sucb as comm ercial
agents, commercial delegates and brokers.

SECTION 1
COMMERCIAL ENTERPRISE
enteıprise' •
75
TCC rules are based on the notion of Hcommercial It is
lıerefore cnıcial to define this tenn adequately.
it should be noted that the term commercial enterp rise" was not
0

.tdined in the previous TCC (Code No: 6762)8,, instead it was explai ned
dırougb several examples. Ind~ according to Art. 1 l previo us TCC,
tradiııg houses, factories or establishments operat ed comm erciall y were

lıtınbıı Medeniyet Unlversity, Faculty of Law, Department of Commercial Law

0J 14.C>2.2011. No 27846.
9
OJOS.12.2001, No 2-1607. Herufter n,ferr9d to as the TCiYC.
0J 28.10.2018, No 29871.
0J [Link].2011, No 27838. Hereafter referred to as the TCO.
~ - ~ Yauma n. Ticari /ıJetırHı Hulculcu (Law of Commerclal Enterı,riaeJ.
2.., 2011. p. 3445: Sabih Arbn, T1cıırl
~ Adrırıı 2017. p. 25; HONylıı Qtoen/M
l,ı.tme Hukuku
ehmet
(Law
Helva
ol
cıl~r
Commeıe ıııı
Kendig
18.. Ed..,
Enterprt
elen/Ar
se),
alan
l'Gııııı Noıııer Ertan, Tlcarl J,ı.ım. Hukuku (Law of CoıMıercial Enfwprtae), 5
91
Ed.,
[Link] M1.
-[Link]:ıu.
222

consıdered
. ·
as commercıa ı enterp rise. Howe ver, these examples w--. .....
numerııs clausu s7•

Instead o f gı. ving examp les, the new TCC pref

d fi
ers to define the
..
• t ınıtıon
"commercıa 1 en erpn·se" . Accor ding to that. .. e . , a coınıneı,~
enterpnse ıs an enterprise which runs actıvıtıes that. aım to Produce
· ·
income exceeding the thresh old provid ed for the artısan enterprise,. iı
continuous and independent manne r.

1. Elements of Commercial Enterprise

A. Aiming to Produce an lncoma Higher Than the Artisan Enterprise
As in all economic activities, comm ercial enterp rises aim to om:ı•
economic profit. But the key point is that a comm ercial enterprise must
to produce an income which exceed s the limit provid ed for •
activities. lt is sufficient to aim to gain incom e; it is not important wnı•
that aim has been realised or not8• Accor ding to Art. 11 TCC, the limil
artisanal activities shall be detenn ined by the Counc il of Ministers.
latter issued a decree dated 8 July 2007, numbe red 2007/12362,
determines the limit of artisanal activities.
[Link]

in order to charac teme an enterprise as "comm ercial" , its acti · •

continuous. This means that a one-of f legal transaction or occasioaı1
and sale does not give rise to a commercial enterprise'. Some ·
may arise from the nature of the business are
not an ·obstacle to
bus~e ss ~ a commercial enterprise10• For example, some bus"
~ ~ partıcular seasons, such as ski resorts which are operative
it ıs ımportant to have an intent to nın that business continuously'~
C. lndependence

One of the elements of comınercial en~rpns·· . ...

. l' 'ti
el ement was ımp ıcı y admitted by the previouıes il
. TCC, ........,••

Oı
7

1
geıı#ttelıvac:ı/K4tnc11-~c.Y111Nome, lrtan, p. 1~.
l'oroylYııınıan,p.38:Artıan,p.27;0
•
10
Poro ,IY~, p, 38; Mı,ı. J), tı:
Arııın, ı,. a1: PororN•ımııı.,. ıı:
tt ,
.,.,Wıııw. p. - """"'••ıc..id
--
~ a: Lıw of Commercial Enterprise

specitic provision
12
B~ the intr?<1uction of the new TCC, the element of
•
223

in(lq>endency bas been mcluded ın the definition of commerdal enterprise.

A branch cannot be considered as a separate commercial enterprise, as it
is under the influence of the head office. On the other hand, agencies who
are professionals to mediate between merchants and their customers can be
coıısidered as a conımercial enterpriseıı. This is because, although they have
a contractual relationship with merchants, they are not under their direct
influence. Thus, they are independent.

ıı. Contracts Related with Commercial Enterprises

Commercial enterprises are not legal persons. Accordingly, they do not
have any property. AH assets allocated to the commercial enteıprise are
lcgally allocated to the merchants who operate that commercial enteıprise ". 1

Nevertheless, the law allows commercial enterprises to be the subject of a

number of contracts15 • For example, it is possible to seU a commercia1
cnterprise as a whole (Art. 11 TCC). In addition, a pledge o,.,er a commercial
enterprise is also possible. lndeed, The Law on Pledge of Movables in
Commercial Transactions allows to pledge all the movables of the
comınercial enterprise by one legal act16•

SECTION il
NOTIONS RELATED TO COMMERCIAL ENTERPRISE

ldentifying someone as a merchant in legal relations is crucial to

~gnate riılcs which will be applied in legal disputes. There are two kinds
:Dfdefinitions of merchant in the TCC; one of them is for natura! persons and
'dıc other one is for legal persons.
. Oııınıtt.ıv.cııı<.ndlgelen/KayalNomer Eıtan. p. 151 .
~aaaman, p. 39; Man. p. 31; Qlgen/HetvacılKendlgelen/Kaya/Nomer Ertan, p. 152.
~aaaman. p. 41; Arkan. p. 34.
~-.ın■n, p. 41 ; OtgentHetvacılK•ndlg.,•nll<aya/Nomer Ertan, p. 179; Abuzer
IC.ıııııuııın.
TOrlr 11caret Kanunu. De0fııfdilder·Ye,:ı'11der-lllce Tespitler (Turldsh Commeıcıaı
~ Chentı[Link] C)etem11nati0n&), 3 Ed.• lstanbul 2016, p. 59,
11ııt ' - on ı. Pledge of MovableS in eomn,eraal Transactions entered lnto ~ on 1
~ıın, 2017 The wtıo can be a party to ıtıe contract of pledge of movablea are
nıa. wtıo :O: 8
-pıecıgee" 818 deftned as c:nıcrıı ınatnutions. merchants. ancı
""'llrııın_ On ltıe oıtıer tıand. lhe pledger must be a merchant. tradesman, famMır, self-
!9'.-.ı .-rrııanaı, « produ0lr [Link]ıan.
A. ldentifying a Merchant

1 Natural Persons
· 12 CC natural person who runs a comıncrciaı
According to Art. ; 1 ~'merchant". The tenn "part)y" is ıısed la
is
enterprise completely _or P ~erships (adi şirket)". it means tlıat eveıy
cover p:ırtners of_ o ınary P hi is considered as a merchant and ali or
rd
artn Of an ordınary partners p b. h ,,
P er • b fits
them are subJect to the ene 1 and inconveniences of eıng merc ant .
. . a person w ho announces by means
In additıon, . of· newspapcr,
al radio,
-~--.J

. . or any other ways that he/she starts a busıness ıs so consıUÇ(w ı

televısıon
merchant (Art. 12/2 TCC).
Finally, a person who pretends that _he/she runs a commeıcial ealll'Dilll
or who enters into contracts as if he/she ıs a shareholder ofa
does not exist legally is liable asa merchant (Art. 12/3 ~
,_,_.,n...,

[Link]ıl Pırıonı

The applicable nıles to identify a merchant, are

to legal personalities. According to Art. 16 TCC, all
are considered as merchants. in this regaıd,' it is not
nın a commercial enterprise". Howcver, the latter JUie lı
commercial companies (ticaret şirketim). The ••moı.lf:~.1• •
association {dernek) ora foundation (va.b.l) will be coııllidiNNM
only if they nın a comrnercial enterpriıe. Under no,..ı:
associations2' or foundations cannot be establisbed witb tt.
gaining economic profit; they must bave another (e.g. pom • :iC1L
rcligious) aim. But they are entitled to nın a commeıcial _.....
achieve thcir rcal purpose2'. If they do so, they will be subject to co
law and will be considered as a merchant.

On thc other hand, bodies and adnıinistrations established by tbe

special provincial adıninistrations, mıınicipalities, villages or other
,,
11 Poroy/Yaıaınan, p. 124; Oıaenıtte~n/kayılNome, Ertan. p. 2a
Arkan, p. 123.
,. ,iV

Poroy,, naman, pp. 127-128; Olgen/H•lvıcıık- eıwı, ..

Kemal oOuzmanıOıe, SeN~ N..-._A__. _
20
•
Ed., lllanbul 2018, p. 335. -~~mır. KJ,ııw Hiılculaı (lııt ol
a, -~•PP-335ııncı394,
 Chapter 8: Law of Commerc lal Enterprlse
225

corporations which are govemed in accordance with the provisions of

private law or run like a commercial enterprise are considered a merchant
(Art. 16 TCC).

Finally the partnership operating a ship (donatma iştirakı) (Art. 16

TCC) and parent undertaking (hakim teşebbüs) (Art. 195 TCC) are
considered as a merchant, even though they do not have legal personality.
Owing to those articles, they can take advantage of being a merchant and
they are under the responsibility of being a merchant22•

B. Consequences of Being a Merchant

Although there are numerous consequences of being a merchant, the
most important ones are listed below.

1. Bankruptcy
Merchants are e subject to bankruptcy for all their debts (Art. 18
TCC). Asa rule, only merchants are subject to bankruptcy23• This means
that a person who is not a merchant cannot be sued for bankruptcy.
However, there are few exceptions that are stated in the TCC and other
legislation. For example, partners of collective companies 24 (kollek tif
şirketler) are subject to bankruptcy, even though they are not mercha nt
(Art. 238 and 240 TCC). In the same way, according to Article 110 ofthe
Turkish Banking Code (Code No: 5411)25, board members of banks are
also subject to bankruptcy.

2. Role of Commercial Usage and Custom

The rules of commercial usage and custom (ticari teamül ve ticari örf ve
adet) are applied to merchants and the latter cannot claim that they did not
know the commercial usage and custom26• On the other hand, commercial
usage and custom applies to persons who are not merchants only if they
know, or should know, that commercial usage and custom (Art. 2 TCC).

22
Arkan, pp. 136-137; Olgen/Helvacı/Kendlgelen/Kaya/Nomer Ertan, p. 266.
23
Poroy/Yaıaman, p. 132.
24
it ahould be noted that soma authors use the term •general partnership· to refer to this
company; see Tuörul Ansay, [Legal Persons, Socletl~ and ,.!kus/nes20s07Asso1c0l2at/ons),
lntroductıon to Turklsh Law, (TuQrul Ansay/Oon Wallace Jr), 5 Ed., "'' ara, • p. .
21
OJ 01.11.2015, No 25983.
21
Poroy/Yaıaman, p. 132.
 T~~
En~s_ _ _ _ _ _- - - - - - - - - ~ ~-.

3. lmpossibility to Request Reduction of the Fee or Contractual Penaıty

. t Art 22 rcc' a merchant cannot request ..
the coıı"
-~ to
Accordıng o •
reduce the remuneration (ücret) or contractual penalty (sozleşnıe cezası).
This ruJe is based on the idea that merchants must behave prudently wheıı it
cornes to business. The main idea is that merchants can calculate the risks
27
that they wou1d eventually be exposed • For example, in ordinary brokeragc
contracts, if the agreed fee is exorbitant, the court may reduce that fee
according to tbe "principle of equity" (hakkaniyet ilkesıı (Art. S25 TCO).
However, because of the special provision of the TCC, merchants Clnnot
take advantage of that principle. Likewise, in ordinary contracts, one of tbe
parties may request the court to reduce the penalty clause of the cooıııct
(Art. 182 TCO), though this is impossible for merchants. Howevcr, tı.
Supreme Court ru1ed that if the penalty clause would lcad to the awınııir
destruction of the merchant, in spite of the clear exprcssion of Aıt,.7J
merchants shou1d also be able to request reduction21•

4. Right to Demınd Payment ofa Remunırıtion aıl hılıNıt

Merchants have a right to dcmand payınent of a
interest even if these are not cxpressly stipu)ated in dıe
TCC). This means that, in prindple, mercbants do not wıııY1
lf they seli a product, they have a right to demand
borrow money to someone, they have a right to dıenıand
nccessary to expressly state these rights in the contract .

11. Commercial Affair (Ticari iı)

T~ke;omm:ı-cial enterprise, commercial affair is also defıned unda" Aıf.

3
il . ıtcorcling _to the Jatter provision, matters regulated in the TCC •
we as a transactıons and deeds conc . . ...ırite .,.
commercial affairs. Thus th ernıng a commercıal ent_~•r·--
ere are two groups of commcrcial affaır:
The first group consists of ınatte . • ....nııo..
is not important whether the ~ r~~ated ın the TCC. in tbis r""-:
enterprisc2' p affaır ıs ın relation with a cooııııeı~
• or example, if a petson who does not run a ı-.mı-~
cı,ıpter 8: law of Commercial Enterprise
277

enterprise or who is not a merchant · . .

it to another person who is neither sıgns a negotıable ınst~ment an~ gives
. . an owner of a commercıal enterpnse nor
merchant, that relatıon ıs - under the umb 11 f Art . .
· f't': •..30 re a O • 3 TCC - consıdered a
commercıa1a ,aıı .

When an affair . . is. not regulated in the TCC, ı't ought to be detemuned .
wbether that affaır
. . ıs ın relation with the commercıa · ı enterprıse· ın · order to
conclude. •that ıt .ıs a commerc ial affair • If there 1•5 a tr· ansac t·10n or deed
1
• .
whıch ıs 1~ relatıon wıth the commercial enterprise, then we may conclude
that there ısa commercial affair.

A. Prısumption of Commercial Affair

it is presumed that all debts of a merchant are of a commercial nature
(Art. 19 TCC). According to that rule, all transactions or deeds of a
merchant are considered as commercial affairs32 • There is an exception to
that rule for merchants who are natural persons. Accordingly, at the moment
of the transaction, if the (natural person) merchant expressly states to the
other party that the transaction is not in relation with his commercial
enterprise or even if [Link] is no such statement, if the circumstances do not
allow us to conclude that there is a commercial affair, the debt in question
would be considered as an ordinary affair (Art. 19 TCC). For example, when
a merchant buys a mobile phone for his daughter as a graduation gift, this
should not be considered as a coınmercial affair. it should be noted that this
[Link] only applies to merchants who are natural persons; legal person
ınerchants do not have any ordinary field.
Art. 19/2 TCC contains another presumption. According to the latter,
uııless otherwise provided by Iaw, ifa contract is a commerc_ial affa~r for one
of the parties only, that contract is considered a commercıal affaır for the
other party as well, even if the other party is not a merchant or does not run
ı coınm · ı t · it should be emphasized however that torts are not
ercıa en erpnse.
'1nthin the scope of that presumption; the presumptı. on only applıes .
to
COntracts31•

• -nı .-11ı1omer Ertan. p. 64.

tt Arkan, p. 88; 01gen1Helvıcı/Kındlgeleıwna1-n
• '-,ıv. .nıan, p. 71; Arkan. p. 69• Ertan p 64
'. "'"'- ~ p. 89; OlgenlHelvacıtK•ndlgılen/Kaya/Nom•r • ._ .
~ •--111••-"'oınet Ertan, p. vu.
~ P. 71: OlgeıııtteıvıcııKındlge.....-,-•~
 ◄

~22~8:..____ _ _ _ _ ____:._ _ _ _ _ __:___ _ _ _ _ _ :. 1

T. .:;urkiıf':t. :::..:;P~~~~
B. Consıquences of Qualifying an Affair as Commercial Affair

1. Presumption of Joint Uability

When two or more parties are jointly liable against a crcditor and Qdı
party is independentJy Iiable for the full extent of the debt, there is joiııt
liability {Art. 162 TCO). in ordinary affairs, joint liability is baıcd" cıı
contract or Iaw. lf there is not any contract or law, ali of the debtors aıt
Iiable to the extent of their shares34 • According to Art. 7 TCC~ uıleıı
otherwise provided by law or the contract, if two or morc pcrsoos mQ}f,-
debt jointly, due to an affair which is ofa commerdal nature for ıny cwaltt
them, they shnll be jointly liable. This is a special provision regardinıJIII
liability35• However, the said article allows the paıtics to cbange tldrıiıll
Thus, the parties may decide not to apply joint liabillty ıuleı il 1111ıı1-..~
contrac~. Additionally, special provisions ofthe law may oıdcr ııottO
joint liability37•

2. lnterest in Commercial Affairs

There are two types of interest in Turkish law. 11ıe first one is
11

interest" (temerrüt faizı) whicb must be paid when the debtor does not
debt when the debt is due3'.Tue second one is ..capital interest" (anapara
which is daimed by the creditor on the ground that he will be deprivcd m
money till the due date39• Currently, the rate ofboth interests is set at 9°/ı..
Interests may also be classified as" legal interest'· (kanuni' fai:) d
..contractual interest'' (akdi faiz) . Parties ofa contract may determine •
interest ratios. However, if they agree on the payment of an interest b\4 lıJ
not detennine the ratio, the Code of Legal Interest and Default
(Code No: 3095)40 applies to dctemıine the appropriate ratc ofintereSt'1.,

3' Poroy/Yasaman, p. 75; Alkan, p. 72; Kemal oOuzman/Turgut Oz. 8otf;W H,ıJaıltlJ_
P.-
HQl<üm/er (Lııw of Obllgatıons-Geneıal Prov#8ions) Vol. 11 23"' Ed lıtanbul 2017,
Beık Kapancı. Birlikte Borçlululcta .Botpuıar Arıt~ , . (RelatioM Amattg o.ı,ı,ırı lJ
Lıabillty). Jstanbul 2015, p.19.
Arkan. p. 72; Olgen/Hetv~onıer Ertan. p. 88; KıpınCI. P. 52,.
36

Arkan, p. 73; OtgenlHetvacılKencl~ Ertan. p. 68,

31

Arkan. p. 73; Otgen11Wvacı1Kendlgelen/Kap1Nonıer Ertan, P~U ..

11

:ıı PoroylYaaman. P. n ; Arlıan p.. 78;· OıaeıVHtıı.ı:ı11<ıınc111aı1ıınıenı•. ....~

ftoro,/Yaurnan. p. n; Arkan p., 78; 0ıııeırııttıw.cı1Kıııc119ı1ın1c.,ı.-.ı-­
31

• 0J 19r12.19M. No 18810.,
! ff Puio,IYM■mM.p.12;:Artıa,ıp. 83:0ııı~-■ ~-
•
--
~ 8: Law of Commercial Enterpt1ise

As menti~ed ~ve, merchants have a right to demand payment of an

229

uııerest for theır servıc_e~ rel~ted to their commerciaJ enterprises (Art. 20

rcC). The latter provısıon ıs not the only one related to the notion of
iotefeSt for merchants. lndeed, according to tbe Article 2 of the Code of
1481 Interest and Default lnterest, in the event that the interest rate in
aıJvance trans~ctions determined by the Turkish Central Bank is [Link] than
9 •/4, then thıs rate may also become applicable for the default interest in
commercial affairs. The rationale behind this rule is that advance interest
ratios (currently set at 11.75%) are higher than ordinary interest ratios.
However, it should be underlined that merchants must make an express
demand for payment ofthe advance ratio'2 •
Fina1ly, ucompound interest'' is an interest generated by the sum of the
principal and any accrued interest43. in Turkish law, it is not allowed to
apply compound interest in ordinary loan contracts (Art. 388 TCO), but
there is a spe,eial provisions in the TCC which allow the parties to agree on
compound interest. Indeed, according to Art. 8 TCC, if both parties of a
loan contract are merchants, it is possible to apply compound interest.
Additionally, according to article 8 and 96 of the TCC, it is possihle to
apply compound interest in current account contracts (cari hesap
söz/eşmeleri).

3. Statute of Limitation Periods in CommerciaJ Affairs

Unlcss otberwise provided by Iaw, tbe 1imitation periods provided by
lıws tbat contain commercial clauses cannot be changed by an agrecment of
/ııe parties {Art 6 TCC). This provision does not mere]y apply to the
lııiıation periods provided by the TCC but also to the commercial
pıoyisjom of other Codes4'.

, C..ırcial Claııses .
According ıo Art. ı TCC; the provisions of the TCC and the spec~al
flDrisions of other Codes cooceming u-ansactions and deeds of co~ercıal
~-- :..ı~ "co--fl'Ulff"ial ciauses~'.•Thus, the provısıons• of
~pı.aı:.a are consıuc:ıcu as UM-AA"'•...
6e. TCC arc considered 45 commercial clauses; ıt does not maner ıf a

Ilı.__ I ~Ertaıft,p.94.
- - , . 84; OlıwJHaMı~ ....
lı Eıtıft. p 87· A,UR. p. 81.
C lllıftxa cııc...tgılıP4'1CarMMD•.,. . '
n, 4.,ı.k
230

.,,,...,_ı-....__..
..
provısıon of the TCC ıs• re1a1ed to commercial
- . . or --·-.ııır.
enterprises O.
d m ıPıftd.....
. order to be able to Jabel the provısıons of other ........
the other han,
commercial clauses, it is necessary that they are re1~cd to coııw 4 il
441
enterprises or its transactions { e.g. the Code on Leasmg, F
1
Financing Companies (Code No: 6361)' , the _Law on. tbe
Movables in Commercial Transactions. the Turkish Bank:iııg ~
provisions of the TCO or the TCivC).
it is important to identify commercial clauscs hecaoıc, •
commercial clauses are applied to commercial affairs. lf tbae ;ı
arising from a commercial affair, the judge must tiııdy
commercial clauses. Art. 1/2 TCC commands that, wbaı
commercial clause to be applied to a commercial legal diıpute,
shall decide according to commercial usage and customs.
There is a special order between clifferent kinds of legal provisioııs
are applied to commercial affairs. Indeed, according to Art. 2 TCC,
• First of all, imperative provisions of the la w shall be applied.
• If there is no irnperative provision, contract clauses shall be applied.
· !f there. is no contract clause related to the dispute, then the ım,
ırnperatıve commercial clauses shall be applied.
• If there is not any kind of the above mentioned nıles, commercial -
and customs shall be applied.

• If there i_s _no co~ercial customs or usages applicable to the di·i.1Plıu

the ~rovısıons which are neither commercial . perabV·e sball
applied. nor ım

tra ~he i;port;ce of the above principles derives from the fact tbat ._
s ~ıng om e general provisions, regulated by Art. 1 TCivC.
specıfy the order of nıles to be a . •
1
According to that nıle .f th . PP ıcd to solve pnvate law
. . , ı ere ıs no conımcrciaı .. licıl#
comrnercıal affaır, the court decide . provısıon app
and usages. Thus, in conunercial s ın ~rdance ~ QJIKM•-ıdıl
affairs, Comınercial caılOı••
--
~ e: Law of Commerciat Enterprise

prevail over the provisions of codes whlch are neither commerciaJ nor
231

unperative".

ıv. Mırchant Assistants

Merchan~' undertaki?gs may grow in time. When this happens, they

may need assıstance, partıcularly of merchant assistants. Most of the latter
are regulated by the law. Mainly there are two kinds of assistants namely:
c1epeodant assistants (bağlı tacir yardımcıları) and independent assistants
(bağımsız tacir yardımcıları)4 •
9

Dependant assistants are within the organisation of the merchant and are
part of that organization. Merchants can give them any order they wish
rclated to the business50 and they can determine the conditions of work
according to their wish. For example commercial representatives and
commercial delegates are dependant assistants51 and they are both reguJated
bytheTCO.
Inde-pendent assistants, on the other hand, support the organisation of
the merchant but they are not part of it. Merchants cannot give orders to
indcpendent assistants. Most of the time, independent assistants are also
meıthants52• For example; ageocies, brokers, exclusive distributors are
İndependent merchants.
Owing to their significance,, the following assistants are explained
~low: commercial representatives, commercial delegates and agents.

A. Comınercial Representative (Ticari Tımsilci)

The commercıa
· ı representatı·ve, which is regulated
. . is, a
by the TCO,
11ieıtbant assistant who bas the broadest representabon powe:. That ıs \\ by
,...... • ""-~
•ıoe ıs reu;uçU to as . Thıs means that a
the u aiter ego" of the merchan~.
....._
--ııcı-ct
. can 1egally do almost anything that the men:hant
___ ·aı representattve

-..,lehracın<e~ı/NOfflel' Ertan. p. 107.

p. 177.
p. 177.
.......n. p. 234.
1n
877
~~-IIIVııcııııc.nıııoıııenı~,.ıNonıet Ertan, p. •
 le under normal circumstances, ifa llPft- "--
could have done. For eXamp ' . . r--•~ ~
. th O rise his/her ordinary representatıve, thıs rep~-=-
not specı 6 ca11Y au b --._.1141111t
. t· ble instrument on behalf of t e represented lleftn.. ı-
cannot a nego ıa
sıgn . . . .- --"""' ~
•aı
a coınmercı repr esentative can sıgn a negotıable ınstrument on be1.-1f
. . . 55 U41 0,
the merchan~ even if there is no specıal authonsatıon .
There are just a few exceptions to the above ~le where the coITııncrciıı
representative needs special authorisation. ~ccordıng to Art. 548 TCO, it
comrnercial representative cannot sell the ımmovables of the coITııncrciıı
enterprise without a special authorisation58 • He cannot sell the comınerciıl
enterprise either, despite the fact that this issue has not been expressıy
addressed in the ıaw57. Additionally, he cannot appoint another person as 1
commercial representative58 •
As a nıle, it is not possible to limit the powers of the commertiıl
representative. There are two exceptions, however. Firstly, the powcrs of tbe
commercial representative may be limited to the affairs of the centıe er
branch of the commercial enterprise. Secondly, co-representation may be
endorsed. This means that at Ieast two signatures are required to act cıı
behalf ofthe merchant'9.

B. Commercial Delegate (Ticari Vekil)

The commercial delegate has less power than thc co

representativeııo. The commercial delegate can be charged lor
adminis_tration of the entirc commercial enterprise or just a part of k
former ıs known as tbe "general commercial delegate., wbereas tbe
known as the Hspecial commercial delegate'..1 • For e~le, tlin'~ the
factory _is co~idered as a general coınmercial delegate and tbe cısı■
market ıs consıdered as a special coınmercial delegatea.

• Oruç Hami lener. Tlcıırl Temdc:I w, 11caıf ı;

Power d Procuıatlon), Ankara 2015. p. 172. emd Yellds/ (Commcı. ı:W
• ....... p.213. · .
17
...... p208.
: oı..ıııı.._.,.,..,......~ l!rıaıı. P. IIM: .... p.aıııJıaııı■
• Arlaıı. PP. ıaı-1eı: Oııııı,nıh •tııdKır11ıu...._ . ~
11..,.,.
OlııııtlfıtıııırnFw •ı ıt ı1Caııılln•a . , _.....
.. At1ıııı.p.111:
~
,:.,...;
...,. . . . .

---►-
 Law of Commerclal Entetprl se
Chapter S:.;:.:.
~~:. ~--- -- --=-=:.:.r::.:.:..:.:::.._ _ _ _ _ _ _ _ _ __ _ _ _.3.2~33

powers ofthe coınınercial delegate can be 1ımıted

. . .
ın any mannef3 •

C. Agent (Acente)
Agency is defıne d under Art. ı 02 rcc A d'
. . ccor ıng1y, an agent ıs a
.
~ . .
person .whose pro es~ıon ıs mediating contracts related to a commercial
enteıpnse or concludıng . such contrac
ts on behalf of th e merchant, on the
baSis_ of a co~tract. !1•s power of representation is valid in a particular
Jocatıon or regıon. Hıs legal status differs from the status of a commercial
ıepresen~tive, a co~~ rcial delegate, a sales offıcer or an employee of the
coınmercıal enterpnse, ın that an agent is independent.

_Ther~ are two types of agencies in Turkish law. The fırst type of agent
has a right to mediate the contracts between the principal and the third party
and does not have power of representation. This means that he just can
mediate but cannot conclude a contract on· behalf of the principal •
64

However, the second type of agent has power of representation and can enter
65
into contrac~ on behalf of the principal •
One of the most important characteristics of the agency contract is that
an [Link] has exclusivity to operate in his particular location or region {Art.
104 TCC). This meaıis that, as a rule, the principal cannot conclude
contracts in that- particular area or authorise another person to act on behalf
ofhim in tıiat area66• If the principal does so, he will have to paya fee to the
agent as if that agent has mediated the contract , without prejudice to the
67

possibility of ~e parties deciding otherwise in the contract.

The TCC introduced a number of changes to the agency contract. A
,ipific ant change concems the power of representati~n. 1~ an ag~nt
toncludes a contract on behalf of the principal by exceedıng his authonty
_,.
--.ı.ıu
· · aı d oes not approve this contract' then the contract shall be
the pnncıp

• a . Olgen/Helvacı/Kendlgelen/Kaya/Nomer Ertan. p.
roroy/Vaaaman, p. 237; Arkan, P· 194,
ı. 698. . 01 en/Helvacı/Kendlgelen/Kaya/No~er E~n.
4~ /'k
Poroy,Vaıaman, pp. 245-246; Arkan, P· 21 , 1
Sözleşmesi (Agency Contract ın Turkish
~ 779; Şaban Kayıhan, Türk Hukukunda Acen e
• w), Ankara 2011, p. 46. /Kendlgelen/Kaya/Nomer Ertan. p.
Poroy/Yaaaman P 246· Arkan, p. 214; Olgen/Hılvacı .

•
ne• · ·
, Kayıhan, p. 47.
' n/K ya/Nomer Ertan. p. 775; Kayıhan. p.
~oroy/Vuaman, p. 252; Olgen/Helvacı/Kendlge le a
., SS. . a/Nomer Ertan, p. 777; Kayıhan, p. 155;
Arkan, p. 223; Olgen/Helvacı/Kendlgelen/Kay
kencııaeıen, p. 110. ·
 . d' "' th
b ın t (Art 108 TCC ) in the prev ious TCC . the sitıu.ıı: __
ıng ıor e agen · · .
different~ in that if the principal wou ld not ınform t he th'1rd ·-.vıı-..
party that Wılıe
does not approve the contract imm edi a~ afte r he/s
he learns of lıi
conc lusion of the contract, then tbe p~o dpa l is dcem ed
to havc ~•lı
cont ract (Art. 122 previous_ T~C ). Thu s, than ks to tbe
n~ ~rovısı~ if ~
is excess of power. the prıncıpal no long er has an oblı
gation to ilıf-.ı
othe r party~.
Ano ther significant change is that hcnc efor th the agen
t 1ııa t
dem and goodwill com pens ation (denkleştirme · tal~b
() (Art. 122
Before this change, even ifth ere was no such prov ision
in the~ı;ıı
the Supr eme Cou rt was acce ptin g thc righ t . to
,~
com pens ation" . Nonetheless. the new TCC has clar ified
1he
that right. Tbus, the agcnt may dem and an appr
oprİıt\\
compensation:
• If the principal continues to proc ure adva ntag
es foltowiııg'
tenn inati on of the contractual relat ions hip, due to the
ncw cust
foun d by the agent;
• lf, as a result of the term inati on of the agen cy cont
rac4 the agent
the rigb t to dem and rem uner atio n for the tran sact ions
whic h have beeı
or will be conc lude d shor tly with the cust ome rs who
are brought in 1,t
the agen t;

if, takin g into acco unt the char acte risti cs of the pres
ent case, .
paym ent of good will compensatiort mus t be equi tabl e10
•

Finally, it is won hwh ile to men tion the non- com

peti tion cooırıııı
(rekabet yasağı anlaşması) (Art . 123 TCC). So Iong as
the agency_ coııııııı
is in force, the agen t cann ot com pcte with the principa 11
1 • it is not neceııı
to mak e an additional cont ract to ensu re this. This obli
gati on of tbe
disa ppea rs upon tenn inat ion of the agen cy cont ract12, unle
ss tbe pırtiet
to conc lude a non- com petit ion cont ract whi ch wou ld prev
ent tbe ~
il
Poroy/Yuaman, p. 252:Kandlgelen,p. 109.
tı 11" CivU Chamberof 8upreme Court.10.05.1996, 199612189
1908l333e; 1111
Supreme Cwrt. 20.06.1998, 1096l2084, 19981
70 4544 ([Link]).·
PoroylYaeaman, p. 281 ; Arkan. pp. 236-23I; Oıııeırıllt4. Mııacı
p. 818.. ıll<e,...ıelı_.i.W,ı
71 Aıbn.p.222.

n Oıı-,-.ıttetvacıMını:11~• l!ııtaıı. p. 121.

-
Chıptıt 8: Law of Commerclal Enterprise 235

cornpeting with tbe principal for a while. The non-competition period cannot
be more than two yearsn. On the other hand, the non-competition contract
n1\JSt be written which is a condition of vaHdity • . Another condition of
1

5
validity is that the principal must pay proper indemnity to the agent7 •

.__... ı/t(andlgetenn<aya/Nomer Ertan. p. 826; Kendigelen,

;.,-VJ1•aumıın, p. 287; QtgenlHelVK
""ııe.
~ cııt< ndf eıenn<ayaMomer Ertan, p. 826; Kendigelen,
J. ,._ ıııman, p. 287; Oıgen/HelVa • 9
1
""tır'•ıaınııı,p.287:Kıyılıaft,P· 108·