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effect of assignment of a claim on the pledge. The dominant opinion in
doctrine accepts that this limitation is only for the moment of constitution
of the pledge. Consequently, the transfer of a claim secured with a pledge
has no effect on the pledge. The other opinion in the doctrine, considering
that the pledge on a commercial enterprise can be extended contrary to its
ratio legis
in case of a free transfer of a pledge right, stipulates that the claim
may be transferred, but in this case, the right of pledge is terminated. In our
opinion, the legal requirement is satisfied once the agreement is concluded
among the parties stipulated by the law. Since the pledge is an accessory
right to the principal claim, the pledge on a commercial enterprise can be
transferred to the extent that the principal claim may be transferred.
Use of foreign currency for pledge.
In creating a pledge, it is required
that the amount of the claim must be stated in Turkish Liras in the pledge
agreement. Because of this requirement, it is also unclear whether foreign
currency may be used for a pledge. Despite the different opinions, we
opine that Art. 851/II of the Civil Code should be applied by reference of
Art. 20 of LPCE and that, in case of satisfaction of the requirements in this
article, the use of foreign currency for a pledge is possible.
Conclusion
As seen above, pledges on commercial enterprise are created to satisfy
the financing needs of merchants and craftsmen. However, the negligence
and carelessness in the regulation of legal principles cause many
controversial issues. Correction of the wording and the deficiencies in
relevant provisions and having new provisions clarifying the controversial
issues would ensure smooth functioning of the procedure.