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fied executive members within the BoD
2
. The Court of Cassation has
decided that if the authority to bind the company has been transferred
to one or some of the BoD members, the other directors shall be exon-
erated from liability, and the BoD members to whom the authority to
bind has been transferred, shall be severally liable
3
.
In light of the decisions referred to above, both the Court of
Cassation and the Council of State are of the opinion that the executive
directors or executive members shall be liable for public debts, if the
authority to represent the company has been entrusted to these direc-
tors or members.
The Communique (Serial: A Item No: 5) pertaining to Amendment
of General Communique of Collection (Serial: A Item No: 1) pub-
lished in the Official Gazette dated 11.09.2013 and numbered 28762,
contains provisions on the determination of the legal representatives of
joint stock companies. Under the title “VIII. Liability of Legal
Representatives” of the Communique, it states that “
The representa-
tives are BoD members appointed through the articles of association
of the company, pursuant to Law no. 6102, or elected by the general
assembly, or third persons elected as directors by the BoD, under con-
dition that at least one of the BoD members shall have the authority to
represent the company.
”
Liability of Commercial Agents
The persons who have been granted the authority to represent
without having the title of executive member or executive director shall
be distinguished from the legal representatives. Pursuant to Art. 368 of
the TCC, the BoD may appoint commercial agents. The commercial
agent is not a legal representative, but is a representative voluntarily
appointed pursuant to Art. 551 of Code of Obligations no. 6098. The
representation authority of the commercial agent does not arise from
legal provisions, but from the contractual relationship between the
agent and the company.
COMMERCIAL LAW
35
2
Decision dated 24.02.2000 and numbered 1998/4697 E., 2000/745 K. of the 11
th
Chamber of
the Council of State.
3
Decision dated 14.06.2011 and numbered 2011/4753 E., 2011/7389 K. of the 21
st
Civil
Chamber of the Court of Cassation.