104 / 521
Non-Compete Obligation of the Commercial Agent
*
Att. Naciye Yilmaz
Introduction
Non-compete obligation of the commercial agent is assessed under
two headings under Turkish Law. Firstly, we address the non-compete
obligation of the agent during the term of the agency agreement.
Pursuant to Article 104 of Turkish Commercial Code numbered 6102
(“TCC”), entitled “
Exclusivity
”, an agent should not act on behalf of
different principals who work within the same geographical area or ter-
ritory, and who are in competition with each other. This obligation
results from the agent’s duty of loyalty. Secondly, there are non-com-
petition agreements which cover the period subsequent to the termina-
tion of the agency agreement. Non-competition agreements are regu-
lated under Article 123 of the TCC. According to the legislative justi-
fication of the TCC, the
ratio legis
of the relevant disposition is pro-
tection of agents against non-competition agreements that are usually
concluded upon the request and under pressure of the principal, by
introducing the time and subject limitation, the written form requirement
and compensation requirement for the prohibition of competition.
Non-Compete Obligation during the Term of the Agency
Agreement
The right to exclusivity regulated under Article 104 of the TCC is
qualified as either “
monopoly right” or “exclusivity
” by doctrine, and
in practice. The TCC adopts the “one agent - one principle” rule
1
, even
though the parties are free to agree otherwise. The non-compete oblig-
88
NEWSLETTER 2014
*
Article of December 2014
1
Kaya, Arslan
; Türk Ticaret Kanunu Şerhi, Birinci Kitap Yedinci Kısım: Acentelik, Beta
Yayınları, 2013, p. 42.