105 / 521
ation of the agent during the term of the agency agreement is known as
the monopoly right of the principal. This monopoly right of the princi-
pal means that unless otherwise agreed in writing, as per the duty of
loyalty of the agent, the agent shall not act on behalf of several com-
peting commercial enterprises that are located in the same geographi-
cal area or territory. Within this framework, we see that the non-com-
pete obligation of the agent is limited with time, scope and area.
With respect to the wording of Article 104 of the TCC, various
scholars defend that “
competitors
” should be interpreted in the strictest
sense, and be understood as “
competitors active in the same commer-
cial fields of activity
2
.” In other words, an agent can act on behalf of
several commercial enterprises active in different commercial fields of
activity. The fact that agents are independent commercial auxiliaries is
one of the reasons why an agent can act on behalf of several commer-
cial enterprises. Geographical limitation is determined in accordance
with agreement between the parties. In addition, exclusivity can be
provided for a specific product or group of customer so long as it is
determined for a certain geographical area or territory.
The agent may act on behalf of competing commercial enterprises
provided that the principal gives its consent, accordingly. Written form
is a validity condition for this agreement. However, within the scope of
the agent’s obligation to protect its principal’s interests, which is one
of the of the agent’s duties of loyalty, even though the agent is allowed
to compete through an agreement, the agent should not harm the prin-
cipal’s interests
3
. In such a case, an abuse of the right to compete shall
be in question
4
. In other words, the fact that the agent is released from
a non-compete obligation by an agreement does not mean that the
agent is also released from its other legal obligations against the prin-
cipal. In any event, the agent is obliged to protect its principal’s inter-
ests.
COMMERCIAL LAW
89
2
Kaya, Arslan
; p. 42.
3
Poroy/Yasaman
, Ticari İşletme Hukuku, Vedat Yayıncılık, 2012, p. 251.
4
Kayıhan, Şaban
; Türk Hukukunda Acentelik Sözleşmesi, Seçkin Yayınları, 2011, p. 108.