84 / 522
tinued less than five years, the indemnity shall be calculated on the
average for the period in question.
” The law stipulates an upper limit;
however, the payable amount is not required to reach this amount.
Indeed, as understood from the legislative justification of the TCC, this
calculation method aims to protect the agent. It is also states that the
mandatory character of the provision shall be determined as per schol-
ars’ opinions and court practices. However, legislative justification of
the TCC also states that the ratio legis of the related article may enable
the determination of another calculation method providing a higher
amount of claim for the agent.
Claim for Goodwill Indemnity
Pursuant to Article 122/4 of the TCC, the parties may not derogate
from the goodwill indemnity prior to the expiry of the agency contract.
This provision aims to protect the agent. The claim for indemnity must
be pursued within one year following the termination of the agency
contract. In accordance with this article’s legislative justification, this
duration should be considered as a lapse of time
11
.
Application of the Provision for Similar Contracts
In principle, a goodwill indemnity claim relates to agency con-
tracts. However, pursuant to Article 122/5 of the TCC, “
Unless it is
equitable, this Article shall apply to the termination of continuous con-
tracts that grant a monopoly right, such as exclusive distribution con-
tracts.
” Unlike the agent, an exclusive distributor is not a commercial
auxiliary, and concludes agreements in his own name and on his own
behalf. Therefore, the exclusive distributor’s clientele should be
returned to the supplier following the expiry of the contract
12
.
Conclusion
Through Article 122, the TCC brought a clear provision pertaining
to the goodwill indemnity of the agent. In accordance with the condi-
tions provided in this Article, the principal should continue to derive
68
NEWSLETTER 2015
11
ARKAN Sabih
,
Ticari İşletme Hukuku
, Ankara, 2011, p. 225.
12
KAYA Arslan
,
Türk Ticaret Kanunu Şerhi, Acentelik
, İstanbul, 2013, p. 261-262.