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NEWSLETTER 2011
10
Innovations in the Incorporation of Joint Stock Companies
2
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Prof. Dr. H. Ercüment Erdem
As is known, the New Turkish Commercial Code (“New TCC”) has
been accepted by the Grand National Assembly of Turkey on January 14,
2011. Within the framework of the New TCC, one of the sections subject
to fundamental changes is, without any doubt, commercial companies. To
this respect, since commercial companies are widely-used and crucial in
practical terms, the changes and innovations brought by the New TCC for
joint stock companies should be analyzed. However, as all changes and
innovations cannot be handled in a single essay, this issue will be handled
as a series of essays.
Moderation of the Principle of Ultra Vires
Pursuant to Turkish Commercial Code (“TCC”), like any other
commercial company, the principle of
ultra vires
is applied in terms of
capacity to have rights of joint stock companies. Therefore, transactions
out of the extent of the article of purpose and scope are null and void.
Within this framework, the article of purpose and scope draws the lines
of the capacity of joint stock companies.
Pursuant to Article 125/2 of the New TCC;
“Commercial companies
can enjoy rights and undertake obligations within the scope of Article 48
of Turkish Civil Code.”
With reference to the relevant article of the Civil
Code, it has been emphasized that commercial companies can acquire
rights and obligations, except for those which are specific to humans,
such as gender, age and consanguinity. Therefore, from now on, article
of purpose and scope does not draw the lines of capacity of joint stock
companies. The article of purpose and scope will still be significant, since
it defines the scope of recourse of the joint stock company to the persons
who effectuated the operation in question.
Pursuant to Article 371/2 of the New TCC; in case third persons are
acquainted that the operation is out of the purpose and scope or supposed
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Article of February 2011