Business Law Dersi 1. Ünite Sorularla Öğrenelim

What is business law?

Business law is a branch of law that covers all of the laws including how to form and run a business. In a way, this branch of law establishes the rules that all businesses should follow. In general, business law deals with all kinds of legal issues in business and commerce.

What does ‘business’ mean?

According to the dictionary, business has two different meanings. One of them is “a person’s regular occupation, profession or trade”, the other one is “commercial activity”. In a business dictionary, it is defined as an organization or an economic system where goods and services are exchanged for one another or for money. Both the word business and the concept of business law have many different meanings. 

What does lex mercatoria mean?

Law merchant

What sort of a system is the law merchant?

The law merchant is a system of rules and customs and usages generally recognized and adopted by merchants as the law for the regulation of their commercial transactions and the resolution of their disputes.

When was the law merchant developed and what was its main aim?

The law merchant was developed in the 11th century. Its main aim was to protect the foreign merchants not under the jurisdiction and protection of the local law. It also aimed to help the traders to negotiate contracts, partnerships, trademarks and various aspects of buying and selling by themselves. Especially sales contract. It spread hugely first around Europe and then around the whole world since traders kept going from place to place.

What changed after the medieval era in the context of commercial transactions and dealings?

In the medieval era, most of the commercial transactions and dealings were considered having a universal character. But after the medieval era, they lost their universal character; and the “nationalization” of law started. Following the birth of the national states in Europe, the process of codification started, so most of the rules of the law merchant were codified in different codes or laws, i.e., commercial code, code of obligations, etc. In England, on the other hand, the law merchant started to be blended in common law by the judges.

What are the two highly dominant legal systems in the world?

One is the Continental Law system, having its origins in Roman law and the other one is the Anglo-Saxon Law system derived from the Common Law in England. The Continental Law system keeps the legislation as the foremost source of law, where as in Anglo-Saxon system the previous judgments are binding and form the main source of law. After the development of the United States, this country highly affected the law system and it was named as the Anglo-American law system. Turkey is a Continental Law country.

Which specific bodies of law have resulted from contractual relations?

(1) sale of goods-i.e., implied terms and conditions, the effects of performance, and breach of such contracts and remedies available to the parties;
(2) the carriage of goods, including both national and international rules governing insurance, bills of lading, charter parties, and arbitrations;
(3) consumer credit agreements; and
(4) labor relations determining contractual rights and obligations between employers and employees and the regulation of trade unions.

Why is business law considered as a very important topic and taught as a compulsory course?

There is a huge need for business law, especially when a merchant is forming a commercial enterprise or when a business association is established. Additionally, when they enter into a legal transaction or when a dispute arises, again the principles of business law shall be helpful in the legal sense.

What are the main sources of law in Turkey?

The main sources of law are the written sources. Actually, article 1 of the Turkish Civil Code states that the law is applied with its letter and spirit to all legal disputes for which it contains a provision. In cases where no provision exists, the judge should decide according to the existing customary law; and in the absence of customary law principles, the judge should decide, where necessary, according to the rules he would himself lay down as if he were the legislator. The judge may also use the doctrine and the precedents (court decisions) as guidance.

Why is Hans Kelsen important in the discussion of the written laws?

When it comes to the classification of the written laws, the famous legal philosopher Kelsen should be remembered since he was the first jurist who made a classification showing the hierarchy of the written laws as well. The most influential legal theory of the 20th century in the Continental Europe is considered to be Kelsen’s “pure theory of law”. 

What does Kelsen’s “pure theory of law” state?

According to this theory, the typical legal system is founded upon a system of norms. The written laws form a part of a hierarchical system of norms, with each layer gaining authority from the previous. All the norms could be traced back through a chain of validity which is shown by a pyramid known as the Kelsen’s pyramid. At the top of this pyramid is the “Grundnorm,” namely the “Constitution” in our system. 

What is the important amendment in the Constitution realized in Turkey after the referendum in 16 April 2017?

According to these amendments, some of the written sources are changed with the elections made on 24 June 2018. Instead of the parliamentary system presdential system is introduced in Turkey. There is no longer the Council of Ministers; therefore, the concept of “statutory decrees” is changed and a new concept is brought as the “presidential decrees”. Again there is no longer “regulations”, since the regulations are issued by the council of ministers.

What is a public corporate body?

A public corporate body is a public institution having legal personality. Examples of public corporate bodies include universities, municipalities, and Turkish Radio and Television (TRT).

How do we define “person” in modern law?

In modern law, similar to the Latin Law, “person” means a being that is recognized by law as a subject of rights and obligations. In general or daily usage, the word “person” refers to human beings, but in the legal sense it has a wider meaning which also includes companies, associations, foundations, syndicates, and even the state and public corporate bodies. Therefore a person is a being that is subject to rights and obligations that are imposed to it by law. In other words a person can be considered as the object of legal rights. As a rule, in order to be regarded as a person, the law has to recognise this being as a person; otherwise, this being shall not be considered as a person.

What types of person are there in the modern legal systems?

In the modern legal systems including Turkish Law, there are two types of person: Real persons (natural persons) and legal person (juristic persons).

When does the personality of a real person begin?

The personality of a real person begins with birth. According to article 28 of the Civil Code: “The personality right begins with the birth of the living child...” From this provision, it is understood that there are two requirements for the beginning of personality: 1. Alive birth 2. Whole birth. From the concept “whole birth,” it should be understood that the child is completely separated from the mother’s body; and from the concept “alive birth,” it should be understood that after separating from the mother’s body, the baby breaths at least once on its own. It is stated that the infant is regarded as a person at this moment of alive and whole birth.

What does presumption mean in the context of law?

Presumption is a concept that is highly used not only in civil law, but also in the whole private and public law fields. A presumption is a legal inference as to the existence or truth of a fact not certainly known but drawn from the known or proved based on the existence of some other fact.

What are the types of presumptions?

There are two types of presumptions, namely rebuttable presumption and irrebuttable presumption. Rebuttable presumption is a presumption which the contrary may be proved with any kind of proof. The most important examples of rebuttable presumption include presumption of innocence (in criminal law), presumption of ownership (in law of property) and presumption of good faith (in private law in general). Irrebuttable presumption is a presumption which the contrary may not be proved.

What does "legal person" refer to? 

Legal person refers to a non-human entity that is treated as a person for limited legal purposes--corporations, for example. Legal persons can sue and be sued, own property, and enter into legal transactions. Law attributes such entities a capacity and an authority to exist and act like individuals to the extent appropriate; and therefore, the provisions for individuals in civil law also apply to legal persons where appropriate.

In principle, the establishment and the termination of legal entities are subject to the formalities stated in the law.

What are the three different ways that the legal entities are subject to?

1. by way of a registration in the relevant registry (i.e companies)
2. by way of a permission from the relevant authority
3. no specific requirement for the establishment (free)

How are private law legal persons established? 

Private Law Legal Persons are established by a legal transaction subject to private law rules; and the types of private law legal persons are exhaustively listed in the law. Private law legal persons may be classified based on whether or not they have an income generating purpose. Accordingly, associations and foundations are legal persons with non-income generating purposes subject to private law rules and companies are income generating legal persons.

What do we mean by public law legal persons ?

Public Law Legal Persons are the legal entities that are vested with public authority as some sort of a public duty is served by these entities. Public administrations and public institutions and public enterprises are public legal persons organized under public law. In that regard, the State, municipalities, village administrations, universities, trade and industry chambers and bar associations bear public law legal personalities.

According to the Civil Code, who will be the legal heirs when a person dies leaving behind a mother and father together with a preagnant spouse ?

According to the Civil Code,  if a man’ s wife is pregnant when he dies, the birth shall be waited for to share the succession. When the baby is born alive and breaths at least once, this baby shall be the legal heir of the deceased father. If the baby is not alive, then the parents and the spouse shall be the legal heirs.