Business Law Dersi 2. Ünite Sorularla Öğrenelim

What is a Commercial Enterprise?

Commercial Enterprise is simply defined in Article 11/1 of the TCC by way of a reference to a benchmark with the turnover threshold of a craftsman’s business. The definition provides three essential elements that should be required for a commercial enterprise.

What are the essential elements of a commercial enterprise?

i. to generate an income that will be above the craftsman’s turnover to be announced

ii. continuity

iii. independence

What is the requirement to generate an income that will be above the craftsman’s turnover to be announced?

There should be a will/purpose of the enterprise to generate an income which shall be above a certain threshold to be announced by the Pesident. The criterion here is that the threshold would be above the level of the turnover of a craftsman’s enterprise. The threshold for a craftsman’s enterprise is announced by a presidential decree (Art.11/2).

How are enterprises classified within the scope of Commercial Law?

Within the scope of Commercial Law, enterprises are classified as commercial enterprises and craftsman enterprises.

What is the difference between the terms “undertaking” and “commercial enterprise”?

Undertaking is a broader term compared to commercial enterprise and the two definitions reflect the deliberate choice of the legislator in order to provide two different entities and definitions. “Undertaking” a broader and comprising concept compared to a “commercial enterprise”. In other words, within the purposes of Competition Law, every commercial enterprise qualifies as an undertaking within the meaning Competition Law so long as it can take its decisions independently

What are the assets of a commercial enterprise?

Human Resources

Merchant

Personnel with/for the merchant

Machines, equipments, etc.

Enterprise premises (factory, buidings etc.)

Tangible Property

Intangible Property Rights

Right to tenancy

Industrial rights (patents, trade marks)

What are the important points relevant to the acquisition process of a commercial
enterprise?

a. A commercial enterprise is to be acquired with all its credits and debts (Article 202 TCO). On the other hand, it is not obligatory to include all the elements (shown in Table 2.1 above) on which the commercial enterprise is founded. Thus, the parties to the acquisition can agree otherwise with a contract that not all the assets will be included in the scope of the acquisition.
b. Pursuant to the TCC, it is possible to acquire a commercial enterprise with all the elements therein without a need to separately conclude agreements or registrations for each of the elements concerned.
c. The acquisition needs to be agreed with a written agreement. In such a case, the acquisition of the immovable property included within the assets of the commercial enterprise and so covered in the written agreement, need not be registered or agreed separately.
d. In some cases, depending on the nature and turnover threshold of the acquisition, the agreement may need to be notified to the Competition Authority under Article 7 of the Law No.4054, for clearance.

What are the legal consequences of acquisition of a commercial enterprise?

• The merchant who transfers his commercial enterprise leaves his commercial business and looses his status of being a Merchant.
• All the elements (assets) which are assigned to the commercial enterprise are considered to have transferred unless the parties agree otherwise.
• The acquisition ofthe commercialenterprise shall be subject to a sales agreement thus the agreement will be subject to the relevant provisions of TCO.
• The debts of the commercial enterprise subject to acquisition will be transferred to the acquiring party effective as of the date of announcement of the acquisition to the creditors or at the date of the announcement in the Trade Registry. As it was stated above, the debts will be transferred to the acquiring party without a need for a separate agreement on the debts.
• Together with the acquiring party, the merchant who is transferring the commercial enterprise shall continue to be jointly liable from the debts for two years. This legal obligation aims to minimize the risks arising from the transfer of the commercial enterprise without getting the consent of the creditor.

What is a commercial enterprise defined as pursuant to Article 3 TCC?

Pursuant to Article 3 TCC, without any exception and regardless of any relevance to a commercial enterprise all matters regulated in the TCC are defined as commercial business.

What is capital interest?

It is the interest payable to the creditor for being deprived of the amount of money that she/he lent to the debtor.

What is interest for delay?

It is the interest payable where the debtor fails to pay debts back in time. Pursuant to Article 10 TCC, unless otherwise provided, interest for delay is to be charged starting from the due date of the debt, and if there is not a specific date for delay, then from the date of notification of the debtor (by the creditor).

What is the difference between simple interest and compound interest?

Simple interest applies only for the capital and its is calculated for a certain period of time whereas compound interest is the interest calculated over the sum reached by the addition of a certain interest on the initial capital.

What is contractual interest?

Contractual interest is the interest which is based on an agreement between the parties whereas statutory interest is the interest rate which applies where the parties have not agreed otherwise. The parties can freely agree on the interest rates, however, if they have not so agreed, then the statutory interest rates apply.

Who are independent auxiliaries?

Independent auxiliaries work with the merchant, but while doing so they can individually arrange his methods and time management and work load independently from the merchant. Those who work independently usually run their own business separate from the commercial business of the merchant. Some of the independent auxiliaries have the capacity to represent the merchant where some of those do not have such a representation capacity.

What are the main features of dependent auxilliaries and independent auxilliaries?

Dependent auxilliaries

with the capacity to represent the merchant such as a commercial representative, commercial proxy, marketing staff

no capacity to represent the merchant such as a driver, a secretary, a security officer, a cook

Independent auxilliaries

with the capacity to represent the merchant such as an agency

no capacity to represent the merchant such as as a commisioner

What are the three categories of Commercial Cases?

i. (Absolute) Commercial cases

ii. Cases arising from transfer, reserve and intellectual and industrial property rights (Article 4/1 TCC)

iii. (Relative) Commercial cases arising from disputes regarding commercial enterprises of both parties (Article 4/1 TCC)

What are the fundamental aims and duties of the State according to Article 5?

The fundamental aims and duties of the State are to safeguard the independence and integrity of the Turkish Nation, the indivisibility of the country, the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence. 

What does Article 48 of the Constitution read as?

Everyone has the freedom to work and conclude contracts in the field of his/her choice. Establishment of private enterprises is free. The State shall take measures to ensure that private enterprises operate in accordance with national economic requirements and social objectives and in security and stability”

What does Article 167 of the Constitution state?

The State shall take measures to ensure and promote the sound and orderly functioning of the markets for money, credit, capital, goods and services; and shall prevent the formation of monopolies and cartels in the markets, emerged in practice or by agreement. In order to regulate foreign trade for the benefit of the economy of the country, the Council of Minsters may be empowered by the law to introduce or lift additional financial impositions on imports, exports and other foreign transactions in addition to tax and similar impositions.”

What set of rules regulate protection of competition relations in the markets from different perspectives?

1. Unfair Trade Rules (TCC and Code of Obligations)
2. Non-Compete Agreements/Restrictive Covenants (TCC and Code of Obligations)
3. Law No. 4054 on the Protection of Competition
4. Law No.3577 amended with Law No.4412 on the Prevention of Unfair Competition in Imports
5. Law No.6015 on the Surveillance and Control of State Incentives