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ed in the justification of the article, the broad interpretation of the
expression “advances, loans or security” is due to
ratio legis
, and any
type of financial assistance that may serve in the acquisition of the
target company’s shares, could conceivably fall under the scope of
Art. 380. Such transactions would result in the loss of the company
capital in any event, whether such risk actually materializes or not is
irrelevant
5
.
In order to consider a financial assistance ban, firstly, the shares of
a joint stock company must be purchased. The shares to be acquired
must be the shares issued by the “target company” that is to provide the
financial assistance. If the company providing financial assistance and
the company that is issuing the shares to be acquired are not the same,
this ban would not be applied. As stated in the justification of the arti-
cle, it is not required that the share purchase takes place before the
advance, loan, or security is granted; the mutual purpose attained after-
wards is in the scope of the provision, as well. Therefore, the time of
the financing does not bear any importance. Accordingly, if the financ-
ing provided after the share purchase is not included within the scope
of the article, the article may easily become entangled. The important
point to consider is the purpose of the transaction. In order to apply the
ban, the primary purpose of the financial assistance must be the pro-
curement of the share acquisition. In other words, for instance, the
company’s shares should be acquired by the money lent by such com-
pany, or the company should provide a guarantee if the party that is
acquiring the shares of the company takes a loan from a third party.
However, a written agreement between the parties is not required in
order to consider such purpose. Implicit agreements suffice with
respect to art. 380 of the TCC.
The type of security provided by a company is unimportant with
respect to the ban, the security may be in cash, in kind, or individual
security; however, this ban does not prevent the acquirer from provid-
ing the acquired shares as a guarantee to the credit institutions, or plac-
ing a pledge over such shares.
COMMERCIAL LAW
19
5
Veliye Yanlı
, Şirketin Kendi Paylarını Edinmesinde Finansal Destek Yasağı, Banka ve Ticaret
Hukuku Dergisi, December 2012, p. 31.