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COMMERCIAL LAW
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scope of the agreement. However, intellectual property rights such as
patents, trademarks, models, diagrams and licenses can be excluded from
the commercial enterprise pledge by agreement of the parties.
Under Art. 4 CEPA, if there is no exclusion of any elements, as stated
above, all the movable facilities of the enterprise must be included in
the pledge agreement and a full list of the pledged elements representing
their natures must be attached thereto
2
.
The commercial enterprise pledge is a special regulation that
establishes a pledge, which is a limited real right, on the whole of the
movable facilities of the enterprise without the delivery of their possession.
Further studies must be carried out as to the legal question regarding
ship mortgages listed amongst the movable property of a commercial
enterprise. Where a ship registered in the ship registry is pledged under
the commercial enterprise pledge, the Ship Registry authorities reject
requests for registration. It would be convenient to study the provisions
of the Turkish Commercial Code No. 6102 (“TCC”) and CEPA together
in order to clarify this issue.
The Ships under the Scope of the Commercial Enterprise Pledge
Art. 3 CEPA sets forth the elements falling within the scope of the
commercial enterprise pledge agreement. Pursuant to this provision:
“
machinery, instruments, tools and motor transportation vehicles
possessed at the time of the registration of the pledge and allocated to the
activities of the commercial enterprise
”, which are also classified as the
movable facilities of the enterprise are considered elements of the pledge,
and their inclusion is mandatory according to Art. 4 CEPA.
Since Art. 936 TCC qualifies all vessels as movables, whether or not
they are registered to the Ship Registry, the ships of an enterprise shall be
2
The academic scholars are of different opinions with regards to the impacts of omission of
certain elements of the enterprise’s movable facilities in the attached list on the enterprise
pledge agreement. Pursuant to the generally accepted opinion, in case the parties have
willfully excluded certain elements of the movable facilities of the enterprise from the pledge
agreement, this agreement shall be void. However, in case parties forgot to add some elements
to the list involuntarily, the agreement shall be accepted as valid in accordance with the good
faith principle.