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Transactions which contravene the articles of association or the
general assembly resolutions are subject to similar conditions.
Bona
fide
third persons may hold a company accountable for (and request the
performance of) transactions they concluded even if such transactions
violate the articles of association or general assembly resolutions.
Transfer of the Representative Authority
In General
The TCC enables the board of directors to delegate both its
representative and management powers. Thereby, it is possible for the
board of directors to be a non-executive board.
Art. 367 TCC governing the delegation of management requires
both a provision in the articles of association enabling such delegation of
powers and an internal regulation governing how the powers are delegated.
Even though Art. 370/2 TCC regarding the transfer of the representative
powers does not explicitly regulate the same requirements, it is argued by
scholars that these two provisions should be taken into account together,
and accordingly the same requirement applies
2
.
However, unlike in the transfer of management, the representative
authority cannot be fully transferred to non-director third persons.
Pursuant to Art. 370/2 TCC at least one director should continue to hold
representative powers. It is argued by scholars that no limitation, such
as the requirement of joint signatures, should be imposed on the sole
director authorized to represent the company. In fact, for companies where
the board consists of one director only, even in the event of a delegation
contravening Art. 370/2, it is asserted that the sole director will have
representative authority regardless of such delegation
3
.
2
Prof. Dr.
Ünal Tekinalp
, The New Joint Stock and Limited Liability Partnership Law and the
Principles of One Man Companies (Yeni Anonim ve Limited Ortaklıklar Hukuku ile Tek Kişi
Ortaklığının Esasları), Reviewed and Revised 2. Edition, Istanbul 2011, p. 141 N. 12-75.
3
Kırca/Şehirali Çelik/Manavgat
, Joint Stock Company Law (Anonim Şirketler Hukuku),
Volume 1, Fundamental Concepts and Principles, Incorporation and the Board of Directors
(Temel Kavram ve İlkeler, Kuruluş Yönetim Kurulu), Ankara 2013, p. 628, 629.