e-book2013

COMMERCIAL LAW

words in Turkish, the TCC does not bring any novelty regarding the assets

of a commercial enterprise.

Art. 133/2 TRR stipulates the elements to be included in the

agreement as a) the names, surnames, business names and notification

addresses of parties, b) the elements of commercial enterprise excluded

from the agreement, c) unconditional statement ensuring that the

commercial enterprise has been transferred entirely and it is maintaining

its continuity, and d) the purchase price and payment conditions of the

commercial enterprise. As is seen, the provision requires the stipulation of

elements excluded from the agreement; it does not require the stipulation

of elements included in the agreement. Certainly these requirements

indicate the minimum content. In practice, agreements are much more

detailed.

As a rule, assets permanently attached to the commercial enterprise

are transferred to the transferee. However, the transfer of every element

is not compulsory. While art. 11/3, c.2 TCC uses the phrase “…

unless

otherwise agreed

…” regarding some elements that may be excluded

from the transfer, the TRR goes a step further. Art. 2, c TRR seeks “

unconditional statement ensuring that the commercial enterprise has

been transferred entirely and it is maintaining its continuity

” and thus sets

forth two requirements for the exclusion of an element from the transfer:

(1) the integrity of the commercial enterprise shall not be affected and

(2) the continuity of the commercial enterprise shall not be damaged as

a consequence of this exclusion. Some of the elements may be excluded

provided that the enterprise preserves its “operating capacity”. If a

commercial enterprise is active in multiple areas, it is enough and required

that the transferred elements achieve operating capacity in only one area.

The excluded elements must be specified clearly in the agreement (Art.

133/2, b TRR)

The TCC provides the indispensable elements for the transfer of a

commercial enterprise. For example, according to art. 49 TCC the trade

name cannot be transferred separately. Nevertheless, art. 11/3 is an

exception to this rule. The preamble of art. 11/3 TCC states that art. 49

does not require the transferor of a commercial enterprise to include the

trade name in the transfer. The preamble argues in a more liberal approach