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or with a unique act of disposal. Each element included in the assets
required a separate transfer transaction. On the other hand, art. 11/3 TCC
provides a substantial change to the system explained above. Pursuant to
the TCC, “
commercial enterprise may be transferred entirely, without the
need to conclude each act of disposal required for the transfer of each
asset separately
”. In accordance with this amendment, the alienation
of immovable properties from the title deed, transfer of possession of
movable properties and registration of trademarks with the trademark
registry will no longer be a required. A written transfer agreement shall
be sufficient for the entire transfer of the commercial enterprise.
Registration and Publication.
As per art. 11/3 TCC, the agreements
whose subject is the entire commercial enterprise shall be registered
and published with the trade registry.
The nature of the registration and
publication is regulated under art. 133 TRR entitled “[The] Transfer of
Commercial Enterprise”. Pursuant to art. 133/3 TRR, “
The transfer of
a commercial enterprise shall bear effect with the registry of the entire
transfer agreement.”
This provision highlights two important points: all
transfer agreements must be registered and registration has an institutive
effect. In accordance with the novelty introduced by the TRR, registration
will be institutive, publication will be explanatory and the publication
will prevent the bona fide acquisition by third persons. The transfer
of a commercial enterprise will be easier with these developments.
However, the article does not stipulate the person required to carry out the
registration. Even though this issue may be regarded as a shortcoming,
it may be inferred from art. 22/2 TRR that the owner of the commercial
enterprise is entitled to request registration.
Pursuant to Art. 134/4 TRR “
Promises to transfer the commercial
enterprise, transfers that shall bear effect after a certain time and
conditional transfers may not be registered
.” Thereby, it is regulated that
a preliminary agreement shall not constitute a legal basis for the request
of registration, and deferred and conditional registrations may not be
concluded.
Notification to Other Registries.
In accordance with Art. 135/5 TRR
“In the transfer of a commercial enterprise, in order to register the assets
and rights registered with the land, ship and intellectual property and