74 / 473
COMMERCIAL LAW
61
to Art. 620/2 of the Turkish Code of Obligations No. 6098
7
(“TCO”),
all partnerships that do not constitute a specific partnership as regulated
under the law shall be considered as an ordinary partnership.
However, the dissenting opinion states that the TCO Art. 620, on
which Tekinalp bases his argumentation, is adopted from Swiss law.
Contrary to German law, Swiss law does not have detailed provisions
governing pre-companies or the incorporation procedure. In fact, the fact
that the prevailing opinion during the enforcement of the aTCC accepted
that a preliminary partnership existed prior to the incorporation of the
company shows that Swiss law principles were adopted. However, the
justifications for TCC Art.335 reveal that the German law model and the
prevailing opinion in Germany is adopted. Therefore the pre-company
should be accepted as a joint stock company, which is in the process
of establishment, having a corporative structure. Indeed, it is argued in
Germany that having a corporative structure is not incoherent with the
existence of a co-ownership company (
Gesamthandsgesellschaft
) with
the legal authority to assume rights and obligations
8
.
Characteristics of the Pre-Company
Where the prevailing opinion in German law is adopted, the pre-
company is a legal beingwhich has its own property, rights and obligations.
It has the right to pursue lawsuits or be sued, it may have a bank account
established in its name and even own trademarks
9
.
The provisions of the articles of association of the company, and in
the absence of any provision thereunder the statutory provisions regarding
the company to be established, shall be applicable in internal affairs. The
pre-company is accepted as having the same bodies of the company to be
established (for example, the board of directors).
Pursuant to German Law, the pre-company is responsible for its debts
and obligations, however its responsibility is limited with its properties.
7
Published in the Official Gazette dated February 4, 2011 and numbered 27836, and entered
into force on July 1, 2012.
8
Kervankıran
, s. 366-367, 355;
Hasan Pulaşlı
,
Şirketler Hukuku Genel Esaslar
, Updated 2.
Edition (
Pulaşlı
), p. 244.
9
Kervankıran
, p. 356;
Pulaşlı
, p. 244.