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counter party during the transactions in accordance with the construc-
tive function of the Trade Registry, which causes the “ought to know”
principle to be utilized.
The reason underlying the need to differentiate between “compa-
ny representatives” and “the non-representative members of the board
of directors or persons bound to the company by a labor contract” is
evident in the preamble of the TCC. As explained in the preamble of
Art. 367 TCC, the TCC differentiates between the right to execute and
representative authority. In this case, the board of directors is split into
two groups as “executive” and “non-executive” members.
The 7th paragraph added to Art. 371 enables thematic and pecu-
niary limitations for commercial representatives or other commercial
assistants who will be appointed by the board of directors, and select-
ed within the non-representative members of the board of directors or
persons bound to the company by a labor contract, other than the com-
pany representatives who are vested with execution and representation
authorities. However, in accordance with the 3rd paragraph of Art. 371,
such limitations shall not be applicable for representatives with execu-
tion and representation authorities.
“The board of directors shall be jointly liable for all types of dam-
ages of the company and third parties, created by these persons.”
is the
last sentence of the aforementioned 7th paragraph. This sentence
should be evaluated in unison with the second paragraph of TCC Art.
553, which reads as follows;
“The bodies or persons transferring a
duty or power emanating from the Code or from the articles of associ-
ation to others on a legal basis are not liable for their actions and deci-
sions, providing that they prove that they displayed enough care while
choosing those persons assigned to these functions and powers.”
In order for the aforementioned regulation on joint stock compa-
nies to be applied to limited liability companies, a third paragraph was
added to TCC Art. 629 by the Omnibus Law numbered 6552:
“(3) Regarding the appointment of the persons bound to the com-
pany by a labor contract as commercial agents or other commercial
assistants by the company managers, Art. 367 and Art. 371/7 shall be
applied to the limited liability companies by analogy.”
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NEWSLETTER 2014