NEWSLETTER-2019-metin

33 COMMERCIAL LAW wholesale of a significant amount of company asset, either in the first or second meeting. A view in the doctrine criticizes this legislation on the grounds that thresholds for a company in dissolution cannot be exemplified for Article 408 of the TCC, and the mentioned Regulation is in contradiction with the hierarchy of norms. Another view in ad- vocates for the application of thresholds mentioned in Articles 538(2) and 421(3), (4) by analogy, by arguing that applying different thresh- olds on the same issue (wholesale of a significant amount of company asset/active) depending on whether the company is in dissolution or not, would be inconsistent 11 . Scope and Content of the Resolution of the General Assembly There are doubts on the scope and content of the general assembly resolution required by Article 408(2)(f) of the TCC. Particularly, shall the general assembly merely give consent to a particular sale, or shall the general assembly authorize the board of directors by determining the terms of sale? In the case of an authorization or pre-authorization, could it be left to the board of directors to determine the buyer, price, terms of paying, security or the timing of the sale? In the doctrine, it is stated that a resolution may leave the discretion to the board of directors regarding the sale 12 . Remedy of the Breach of Article 408(2)(f) of the TCC The Court of Cassation’s approach 13 , since the fTCC, to sell a sig- nificant amount of company asset in the absence of a general assembly resolution is invalidity of the sales contract. It is of doctrinal opinion that ratification by the general assembly for the sale is possible; oth- erwise, the contract is invalid from the beginning 14 . It is argued that in the case of suspended invalidity, ratification would cause the contract to bind the company from the beginning, and absence of consent or 11 Ayoğlu , p. 95; cf. Kendigelen, Abuzer : Türk Ticaret Kanunu, Değişiklikler, Ye- nilikler ve İlk Tespitler, 3. ed., Istanbul 2016, p. 309. 12 Dural , p. 234-237; Ayoğlu , p. 96. 13 Ayoğlu , p. 99; 11. CC, E. 2016/3810, K. 2017/3294, 01.06.2017. 14 Biçer / Hamamcıoğlu , p. 47; Ayoğlu , p. 99; 11. CC, E. 2012/6771, K. 2013/6820, 04.04.2013.