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that that owner of an enterprise can use the trade name for an enterprise
to be established later if the transfer agreement allows it and there is no
non-compete clause. Art. 135/4 TRR sets forth a detailed regulation for
registration in cases where the trade name is subject to the transfer or not
subject to the transfer; so it supports this argument too.
Pursuant to art. 11/3 TTC, the enterprise value is included in the
transfer agreement unless otherwise agreed. The enterprise value is
defined in the preamble as a value exceeding the sum of the individual
elements of the enterprise including the customer portfolio. Therefore,
because the enterprise value is transferred to the transferee, it should
be acknowledged that the transferor is obliged not to compete with the
transferee, even if the parties have agreed on the non-compete clause.
The Problem with the Transfer of Liabilities.
In accordance with the
provision under the Former CO, the assets and liabilities of a commercial
enterprise must be transferred together. Art. 202 TCO is a repetition of
the abovementioned provision. Therefore, it may be assumed that the
explanations given for the Former CO will also be valid for the TCO.
The doctrine defends that a commercial enterprise demonstrates integrity
and thus assets and liabilities must be transferred together; the law-
maker thereby regards the assets as a natural guarantee of the debts of
the enterprise and accordingly it brought an arrangement as such in order
to protect the creditors. According to the dominant opinion, the entire
transfer of assets and liabilities bears a mandatory nature. However, among
the authors that defend the mandatory nature, there isn’t a consensus on
the consequence of the transfer agreement where the agreement has been
established merely for the transfer of assets.
Within the scope of the TCC, it may be stated that the discussion
on the transfer of assets of a commercial enterprise without including
the liabilities, will continue. Although Art. 133/2, b TRR requires the
stipulation of the elements of the commercial enterprise excluded from
the transfer agreement, these elements must be understood as part of
the assets of the enterprise. For instance, some machines, trademarks
or immovable property may be excluded from the transfer agreement.
Therefore the non-stipulation of any provision regarding the exclusion of
liabilities under the TCC and TRR is a significant deficiency..