109 / 516
cial enterprise are not transferred, in case the transferred components
are sufficient to continue commercial activities as an enterprise, it is
accepted that such transaction is an enterprise/business transfer as per
art. 179 of TCO. Moreover, art. 179 of TCO is considered as a manda-
tory provision of law and decisions are given which are restricting the
transfer of entire assets of a business without having the liabilities.
In light of the above, the transfers, the subjects of which are fun-
damental components -equipments, fixtures and fittings- of a business
are considered as “
implicit transfer of business
” even if it does not
contain the liabilities.
In other words, transferring certain aspects of a business in parts or
in separate steps would not prevent the transferee to inherit the liabili-
ties attached to the business and the transferee would not be able to
avoid the legal consequence of a “business transfer”.
As indicate above, art. 179 of TCO is accepted by the established
opinions as mandatory provision of law. Therefore, it is also indicated in
the established decisions of Court of Appeal that the declaration of nul-
lity for the decisions contrarily taken to conduct asset transfers which
contain fundamental components of a business without transferring lia-
bilities could always be claimed by any person who has a legal interest
4
.
On the other side, there are voices under Turkish legal doctrine
who are not participate such opinion. As per the contrary opinion,
transfer of fundamental components of an enterprise/business are not
necessarily requires the transfer of assets along with liabilities. This
opinion claims that in order for the transfer of liabilities, the transfer of
a business with the entirety of its assets and liabilities, however, it does
not restrict the transfer of its assets without the liabilities and art. 179
of TCO shall be read as indicated. In other words, transfer of whole
assets or fundamental components of the assets of an enterprise shall
not necessarily be considered as the transfer of liabilities along with
such assets. According to this, assets of a commercial enterprise could
be transferred without transferring the debts and liabilities
5
.
COMMERCIAL LAW
95
4
Court of Appeal 11. Civil Chamber E. 1978/3158 K. 1978/3661 T. 6.7.1978.
5
Mehmet Fatih Arıcı
, Ticari İşletmenin Aktifi ve Pasifi ile Devri, Vedat Kitapçılık, İstanbul
2008, p. 79, 148, 156, 157, 165.