63 / 516
extended by providing company assets as collateral, and financial
assistance transactions by the intervention of other companies are con-
sidered to fall within the scope of the prohibition of financial assis-
tance in the practice of European Union member states
3
.
Article 380, further states the consequences of acting contrary to
financial assistance prohibition is sanctioned as being null and void.
For the invalidity of financial assistance transaction, it is not necessary
for the company to have incurred of any losses. Therefore any financ-
ing or assistance of the target company, in the absence of which would
cause the assisted person to not enter into the purchase transaction, is
subject to the prohibition under article 380 and is null and void.
Where a financial assistance is concerned, there are two transac-
tions, one being the transfer of shares and the other being the financial
assistance for the payment of the share price. Article 380 only foresees
that the financing transaction shall be null and void, and didoes not
regulate any consequences to the share transfer. Therefore, we are of
the opinion that the share transfer transaction carried out with the
financial assistance transaction which will be deemed invalid, shall
continue to be valid and binding. Furthermore, Article 385 of the New
TCC foresees the obligation to dispose of shares purchased in violation
of articles 379. 380 and 381 governing company share buybacks, rather
than rendering such transactions invalid (void). From this expression,
it is understood that the share purchases in violation of article 380 may
be realized. Therefore the only transaction that is invalid is the financ-
ing transaction.
Exceptions to the Prohibition of Financial Assistance
Article 380 regulates two exceptions to the prohibition of financial
assistance. The first exception governs the transactions normally exe-
cuted by the credit and financial institutions’ as a part of their field of
operation. The second exception governs the advance payment, loan or
security provision transactions in which shares are acquired by or for
employees of the company or its subsidiaries. Such transactions shall
COMMERCIAL LAW
49
3
Gül Okutan Nilsson
, Anonim Şirketlerin Kendi Hisselerini İktisabı Bağlamında Finansal
Yardım Yasağı, Anonim Şirketler ve Sermaye Piyasası Hukukunda Güncel Gelişmeler Türk -
Alman Uluslararası Sempozyumu (25-26 Haziran 2010), p. 96-97.