64 / 522
that intend to effectuate such purpose and subject, and which are
included in the ordinary course of business.
In this respect, Court of Cassation decisions that are rendered under
the Abrogated TCC with respect to ultra vires principle may be relied
upon in order to determine whether becoming a surety or providing a
guarantee should be included in the scope of Art. 371/2 of the TCC.
Likewise, the established precedents of the Court of Cassation conclude
that becoming a surety and providing a guarantee is in the ordinary course
of business, and are included in the company’s subject of activity.
Accordingly, the 11
th
Civil Chamber of the Court of Cassation, in
its decision dated 19.07.2005 and numbered 4621/7778
5
, ruled that in
accordance with established practices in Turkish Law, companies must
be deemed capable to conclude surety and guarantee agreements due
to their commercial activities, even if such activities are not explicitly
stated in their articles of association as an area of activity. Similarly,
the 11
th
Civil Chamber of the Court of Cassation, in its decision dated
07/02/1978 and numbered 7/354
6
, stated that: “
A company’s subject of
activity means commercial transactions concluded regularly by such
company. Such transactions are related to the transactions as set forth
in the company’s articles of association. However, it is necessary to
accept that the businesses and transactions, which do not directly fall
into the scope of the company’s subject of activity as specified in its
articles of association, but which facilitate the company’s commercial
activities, shall be assessed within the scope of the company’s subject
of activity. Those companies with commercial purposes may jointly
undertake liabilities in order to obtain loans from banks and, therefore,
support each other, and maintain their commercial activities in such a
way. Such transactions are considered to be among ordinary commer-
cial transactions. Therefore, the surety contract in question shall be
deemed within the scope of the company’s subject.
”
It is clear from the Court of Cassation’s decisions that surety and
guarantee transactions are accepted as those transactions that lie within
the scope of a company’s subject of activity, even if they are not includ-
48
NEWSLETTER 2015
5
www.kazancı.com.trdate of access: 3 March.2015.
6
Seza Reisoğlu
, Türk Kefalet Hukuku, Ankara 2013, p. 56.