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COMMERCIAL LAW

the transferor and the transferee shall be severally liable for the liabilities

of the enterprise for two years.

New Provisions

As of July 1, 2012, the transfer of a commercial enterprise is

regulated both under the TCC and the Turkish Code of Obligations No.

6098

(“TCO”), which entered into force on July 1, 2012. In addition, the

TRR sets forth provisions regarding the elements included in the transfer

agreement and the registry of this agreement with the trade registry and

other related registries.

The Transfer Agreement

Art. 11/2 Former TCC, by stipulating the elements included in the

commercial enterprise “

unless otherwise provided in the agreement

”,

was implicitly stating that the commercial enterprise may be subject to

several agreements. On the other hand, art. 11/3 TCC explicitly refers to

the transfer agreement and other agreements whose subject is the entire

enterprise. Art. 11/3 TCC shall not only apply to transfer agreements but

also to other agreements whose subject is the entire enterprise. Disposal

acts such as pledge or usufructuary, promissory transactions such as

loan or lease agreements, and innovative rights such as first option, pre-

emption rights are some examples.

Written Form.

The Former TCC and Former CO did not provide any

requirements as to the form of the transfer agreement. Art. 11/3 TCC

emphasizes the written form requirement by stipulating that: “

The transfer

agreement and other agreements whose subject is the entire enterprise

shall be in written form and shall be registered and published with the

trade registry”.

Moreover, art. 133/2 TRR explicitly sets forth the written

form requirement. However, the law-maker does not indicate whether the

written form is a condition for validity or not. The prevailing view in the

doctrine states that this written form is a condition for validity.

In accordance with the Former CO, the assets of the enterprise were

not transferred to the transferee merely with the transfer agreement

Official Gazette, 04.02.2011, No. 27836.