ANA METIN ingilizce.17

craft or micro business” is accepted as a fundamental factor of deter-

mining the concept of “commercial enterprise” under art. 11 of the new

Turkish Commercial Code numbered 6102 (“NTCC”).

Transfer of Enterprise/Business Concept and Discussions of

Transfer of Assets Along with Liabilities

Under the currently applicable laws, “transfer of commercial

enterprise” concept is governed by Turkish Code of Obligations num-

bered 818 (“TCO”). According to Article 179 of the TCO, in case the

“whole of an enterprise” is transferred including all assets and liabili-

ties thereof, the transferee automatically becomes liable for the debts

of the said enterprise, starting from date of the notice to the creditors

or the publication of newspaper advertisements to that effect.

In addition, there is a complementary provision under Turkish

Labor Act numbered 4857 (“TLL”). As a general rule of the Turkish

Labor Act, the employees of a business place are automatically trans-

ferred and become the employees of the new employer, when such

business place is transferred to a new owner, who will keep the busi-

ness running.

Theoretically, in order to qualify an asset transfer as a “transfer of

business” or “transfer of commercial enterprise”, it is necessary for the

transferee to obtain the entirety of such business or a separable (stand-

alone) part of a business (“line of business”) including all assets and

liabilities thereto. Therefore, if the transferor only transfers certain

assets (e.g. immovable properties, vehicles, etc.), but retains the

obligations and liabilities arising out of or in connection with such

assets, in general the transaction is not considered as a “transfer of

business”, but merely as transfer of certain assets.

On the other side, as per the established doctrine

and the Court of

Appeal decisions

, even if some components of a business or commer-

NEWSLETTER 2012

Poroy/Yasaman

; s. 46; Ülgen/Teoman/Helvacı/Kendigelen/Kaya/Nomer/Ertan; Ticari İşletme

Hukuku, Vedat Kitapçılık, İstanbul 2006, 1st Edition, p. 170.

Court of Appeal 21. Civil Chamber E. 2005/1077 K. 2005/1752 T. 1.3.2005; Court of Appeal

21. Civil Chamber E. 2004/6582 K. 2004/6965 T. 14.9.2004; Court of Appeal 21. Civil

Chamber E. 2001/6728 K. 2001/6742 T. 15.10.2001; 15. Civil Chamber E. 1995/1063 K. 1995/

1252 T. 6.3.1995.