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relevant enterprise. The Court of Appeals considers this requirement as a
validity requirement and considers null and void the agreements which are
not prepared by the notary in the registry district. This opinion does not
have any supporting evidence. The point is to have the agreement prepared
by a public notary. It is not important whether the notary is in or out of the
registry district because all the public notaries in Turkey have the same
authority and responsibilities. Preparation of the agreement by a public
notary in a statutory form is sufficient.
Elements which are not included on the list.
In case the entire movable
operation installment existing at the moment of the conclusion of the
agreement is not included on the list, what will happen? According to the
prevailing opinion, the pledge agreement is valid and enforceable if this
deficiency results from negligence, but if the parties deliberately exclude
some elements of the movable operation installment from the scope of the
pledge, the pledge agreement is null and void. The elements brought into
a commercial enterprise following the constitution of the pledge must be
included on the list and registered with the registry.
Pledge on head office or branch office.
In our opinion, it is also
possible for assets only in the head office or a branch office of a commercial
enterprise to be pledged. The branch office needs special authority for this
transaction.
Pledge in favor of third persons.
Due to the
numerus clausus
character
of parties in a pledge agreement as creditors, it is also controversial in
the doctrine whether constitution of pledge in favor of third persons is
possible. In our opinion, a pledge in favor of third persons is possible. In
other words, the owner of enterprise may pledge the elements within his
commercial enterprise in favor of a third person. In the law of pledges, the
main rule is the possibility of a pledge in favor of a third person. LPCE
does not have any prohibitive provision regarding this issue.
In examining the problem in terms of
ultra vires
, it is necessary to
accept that a legal entity merchant does not need any special provision in
its articles of association for constitution of a pledge on its commercial
enterprise. Considering all these reasons, the possibility of constitution of
a pledge in favor of a third person should be accepted.
Assignment of the claim secured by the pledge.
Another problem
resulting from the
numerus clausus
character of parties as creditor sis the