ANA METIN ingilizce.17

Transfer of Assets along with Liabilities as in Transfer of

Enterprise/Business

Att. Berna Asik Zibel

Enterprise Concept in Light of TCC and NTCC

The term of “commercial enterprise” is defined under Turkish

legal doctrine as conducting commercial activity under an organiza-

tion, which contains capital, labor and management

. Under Turkish

Commercial Code numbered 6762 (“TCC”), the most important factor

for defining a commercial enterprise is indicated as “being commer-

cially operated -going concern”.

As per art. 11/I of TCC,

“the enterprises such as businesses, fac-

tories or others that are being commercially operated are considered

as commercial enterprise”

. Although TCC is considered the commer-

cial operation term as a cornerstone, it does not contain a sufficient

definition or illustrate the factors of it but only enumerates its kinds.

Under art. 12 and 13, some types of activities, the conduct of which are

considered as business or other types of commercial enterprises.

On the other hand, even if an enterprise conducts activities listed

under TCC art. 12 and 13, the important criterion scale is whether there

is a level commercial activity, which could be considered as higher

than commercial activities of a craft type or micro enterprises. This

rule is set forth under art. 14/II of Trade Registry By-laws as “the activ-

ities, which do not target for revenue, which are not going concern and

level of which are not higher than the one of a craft or micro enter-

prises set forth under art. 17 of TCC shall not be considered as com-

mercial enterprise. In addition, in the decisions of Court of Appeal, it

is also accepted that in order to be deemed as a commercial enterprise,

an enterprise shall have the necessary business volume -above a certain

threshold- and importance, which requires a commercial accounting.

On the basis of the foregoing, “having higher activity level than the

COMMERCIAL LAW

Article of February 2012

Poroy/Yasaman

; Ticari İşletme Hukuku, Vedat Kitapçılık, İstanbul 2010, 13th Edition,

p. 27-28.