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COMMERCIAL LAW
59
Applicable Provisions
Ordinary partnerships are not regulated in the general provisions
governing commercial companies under the aTCC. The prevailing opinion
was that the provisions related to the articles of association and statutory
provisions of the aTCC regarding the company to be incorporated would
apply to internal affairs and the provisions on ordinary partnerships
under the abrogated Code of Obligations No. 818 would apply to the
partnership’s external affairs. Nonetheless, the lack of coherence between
the two codes resulted in certain problems, such as the retroactive
application of the aTCC provisions
3
.
Effect of the Incorporation of the Company on the Partnership
Upon becoming a real entity, the joint stock company assumes all
capital subscriptions made by the ordinary partnership. The founders may
request a refund of their expenses, approved by the first general assembly.
The common purpose of the ordinary partnership (
affectio societatis
)
is the incorporation of the joint stock company. If the joint stock company
may not be incorporated for any reason (the inability to obtain ministry
approval for incorporation, the inability to fulfill the capital subscription
requirement in progressive incorporation (a gradual incorporation
procedure foreseen under the aTCC and abandoned by the TCC,
tedrici
kuruluş
)) the ordinary partnership shall be deemed to not have achieved
its purpose. Consequently, it is accepted that the ordinary partnership
shall be terminated and liquidated. In such an event, a company will
not assume the capital subscriptions or expenses of the founders. The
partners of the partnership will be personally and jointly responsible for
the actions they undertook in the name of the company to be established
4
.
Pre-Company under the TCC
The TCC introduces a provision which acknowledges the existence
of a preliminary company for the first time. TCC Art. 335/1 reads as
3
Kervankıran
, s. 352;
Reha Poroy, Ünal Tekinalp, Ersin Çamoğlu
,
Ortaklıklar ve
Kooperatif Hukuku
, Updated 9. Edition, Istanbul 2003 (
Poroy (Tekinalp/Çamoğlu)
,
Ortaklıklar), par. 71.
4
Poroy (Tekinalp/Çamoğlu)
, Ortaklıklar, par. 500-503.