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been endorsed. While Article 416 of the TCC respects the same principle,
it does not make any distinction between transfers based on legal
transactions and transfers based on legal provisions. This issue caused
misinterpretations in the practice. The New TCC has made a distinction
between legal transaction and legal provision, and the letter of the law has
been corrected.
Share Transfer Restrictions Concerning the Registered Share
Certificates
Article 491 of the New TCC regulates the legal restrictions to be
applied to the transfer of registered shares. Pursuant to the relevant
article, registered shares, which have not been totally paid up, may only
be transferred with the approval of the company. This particular case is
a share transfer restriction provided by law. However, in the event that
the transfer has been realized by means of inheritance, distribution of
inheritance, marital property regime between spouses or enforcement
procedures, the said rules does not apply.Asmaybe seen, the basic principle
adopted by the New TCC is that the shares may be freely transferred. On
the other hand, as an exception to this rule, the company is required to
give approval concerning the shares, which have not been totally paid up.
Therefore, the company will not be faced with shareholders who do not
have the sufficient ability to pay. Pursuant to Article 491/2, the company
may only refuse to grant its approval in the event that the transferee’s
ability to pay raises doubts and the security requested by the company is
not provided. Consequently, the company may not refuse the approval in
case the transferee has sufficient ability to pay or can afford. In the event
that the transfer has been realized by means of inheritance, distribution
of inheritance, marital property regime between spouses or enforcement
procedures, the approval of the company is not required.
Article 492 of the New TCC regulates the restrictions laid down
by the articles of association (“contractual share transfer restriction”)
concerning the transfer of shares. Pursuant to the relevant article, the
articles of association may regulate that the registered shares may only be
transferred under condition to obtain the company’s approval. The said
article sets forth the basic rule concerning the restriction of the transfer
of shares. The different rules, that shall be applied to the listed and non-