law 313

LAW 313LAW 313

Glossary of Legal TermsGlossary of Legal Terms

Association: dernekCode: kanunCommercial enterprise: ticari işletmeCooperative: kooperatifCustomary rule: örf ve âdet hukuku kuralıEconomic enterprise: iktisadi işletmeFoundation: vakıf

Glossary of Legal TermsGlossary of Legal Terms

General Partnership: kollektif şirketInterpretory rule: yorumlayıcı kuralLimited Liability Company: limited şirketMandatory rule: emredici kuralMerchant: tacirOrdinary Partnership: âdi şirket

Glossary of Legal TermsGlossary of Legal Terms

Partnership with Limited Liability: koman-dit şirket

Presumption: karine; varsayımPrincipal: asil; müvekkil; temsil olunanStock Corporation: anonim şirketTradesman: esnafTradesman business: esnaf işletmesi

Development of Commercial LawDevelopment of Commercial Law

In Turkish Law the first Commercial Code was enacted in 1850. In 1926 another Commercial Code was accepted. The latter was enacted in 1957 and applied until 2011. In January 2011 new Commercial Code is accepted. It came into effect in June 2012.

The Scope of Commercial LawThe Scope of Commercial Law

A certain relationship or transaction can be regulated in commercial code in one country, during the same issue is covered by, for example, civil code or code of obligations.

Some countries do not have a separate commercial code (for example, Switzerland).

The Scope of Commercial LawThe Scope of Commercial Law

Example:Ordinary Partnerships are handeled by CO

in Turkey and Switzerland; but by CC in Germany.

In Turkey, provisions relating to (Joint) Stock Corporations belong to ComC; but in Switzerland to CO.

Hierarchy of Commercial Hierarchy of Commercial ProvisionsProvisions

1. Mandatory rules of ComC.

2. Contracts

3. Interpretory rules of ComC.

4. Commercial customary rules (applicable only for merchants).

5. General rules of CC (Art. 1 CC).

Commercial Enterprise Commercial Enterprise (TCC (TCC art.11)art.11)

commercialenterprise

economic enterprise

ee – ce = tradesman business

tb

Requirements for Commercial Requirements for Commercial EnterpriseEnterprise

1. Profit oriented aim.

2. Continuity.

3. Exceeding a Certain Size Limit.

4. Independence.

MERCHANT

Real Person Merchant (TCC art.12)

Legal Person Merchant (TCC art.16)

1- Commercial Companies

Stock Corporation (A.Ş.); Limited Liability Company (Ltd.Şti.); General Partnership (Koll.Şti.); Partnership with Limited Liability (Kom.Şti.); Cooperatives (Koop.)

2- Foundations and Associations that operate a commercial enterprise.

Real Person MerchantReal Person MerchantMerchant is the person who even partially

operates a commercial enterprise in his/her own name.

A legal representative who manages a commercial enterprise in the name of another person (principal) is not deemed a merchant. In case of representation the principal is the merchant, even if he/she is minor or under inderdiction or commission.

A person who has announced to the public, that he has established a commercial enterprise either trough circulars, announcements, radio advertisements, newspapers, letters or who has registered his enterprise in the commercial registrys is considered merchants, even though he did not effectively start to manage the enterprise. This rule is accepted to protect the good faith of third parties who have believed in this announcement.

If a person managing a commercial enterprise does not have capacity to act, the legal representative is not considered a merchant, but the minor underguardianship is a mercant. But the legal repr. is liable of the penalty provisions.

A person whose profession does not allow managing a commercial enterprise, such as a civil servant, is considered a merchant when he manages a comm. ent. and he will be liable as merchant.

Consequences of being a merchantConsequences of being a merchant*commercial firm name*register in commercial registry in 15 days

starting from opening date (art.40)*bankruptcy*due diligince expected from a careful and

prudent businessman*an invoice must be issued by the mercant upon

sale of a product or providing a service (art.21) (proforma invoice is different than invoice)

* letter of confirmation (art.21)

* a merchant providing service concerning his commercial enterprise has the right to request an appropriate fee for his performance (art.20)

* special rules for sale contracts are regulated in art. 23.

*the notices and announcements among merchants to put each other in default or annul the contract shall be made by notary, registered mail, telegram or secured elect. Sign.

Merchant can not request from the court a reduction in the amount of the penalty clause.