81 / 522
Turkish Commercial Code No. 6762
4
(“Abrogated TCC”) has not
provided any explicit provision regarding goodwill indemnity. A good-
will indemnity claim of an agent is based on the broad interpretation of
Article 134 of the Abrogated TCC. The first paragraph of the relevant
article provides that the party terminating the agency contract without
complying with the three month notice period shall compensate the
losses of the other party arising from the non-fulfillment of the trans-
actions. The second paragraph sets forth that where the agency contract
is terminated due to death, loss of legal capacity, or bankruptcy, a com-
pensation calculated that is based on the remuneration that would have
been paid to the agent as a result of the completion of the transactions
shall be paid to the agent. Nevertheless, application of this article is not
appropriate as goodwill indemnity is not considered as a real indemnity
5
.
Article 122 of the TCC put an end to all debates by adopting a clear
provision pertaining to the goodwill indemnity of the agent. This
Newsletter article assesses goodwill indemnity with its conditions of
application pursuant to Article 122 of the TCC.
Conditions to Claim Goodwill Indemnity
Conditions under which goodwill indemnity may be claimed are
regulated under Article 122 of the TCC. These conditions are sought
cumulatively.
Agency contract should be terminated
Goodwill indemnity is one of the consequences arising from the
termination of the agency contract. The contract may be terminated by
a contracting party, or may expire automatically. In order for the agent
to claim goodwill indemnity, the termination should not be the result
of the fault of the agent, nor should it result due to any cause attribut-
able to the principal.
In order to consider causes attributable to the principal, fault is not
required. The following are examples for such causes; delay of pay-
COMMERCIAL LAW
65
4
Abrogated on 01.07.2012.
5
ERDEM Ercüment
,
Türk İsviçre Hukukunda Denkleştirme Talebi
, İsviçre Borçlar Kanunu’nun
İktibasının 80. Yılında İsviçre Borçlar Hukuku’nun Türk Ticaret Hukuku’na Etkileri, İstanbul,
2009, p. 212.