NEWSLETTER-2019-metin

34 NEWSLETTER 2019 ratification causes a company not to be bound by the contract 15 . It also states that upon a transaction to the contrary of the resolution, Article 371(4) of the TCC would apply, and the sale would be valid for the purposes of protecting the third party 16 . The invalidity approach of the Court of Cassation is criticized as it fails to protect the third party in good faith who is also the party of the contract, and fails to maintain legal security which commercial life requires. Also, the Court of Cassation’s approach is criticized since it interprets a provision regarding authority of company bodies on the internal processes of the company, in such a way that a third party in good faith is affected 17 . Whether Article 408(2)(f) of the TCC Shall be Applied to Limited Liability Companies There is no explicit provision regarding the requirement of reso- lution for sale of a significant amount of company asset under Article 616 of the TCC – where the unassignable powers of a shareholders’ general assembly are listed. Under Article 644 – where the references to joint stock company provisions are listed, there is no reference to Article 408(2)(f). On this issue, part of the doctrine argues that the omission of such reference is intentional; therefore, an application by analogy should be refrained from. Other scholars argue that the newly introduced unassignable power of the general assembly has its roots in the Court of Cassation’s rulings on limited liability companies; therefore, the omission is unintentional and the gap should be closed by applying Article 408(2)(f) of the TCC by analogy, and there is no justified reason precluding such application 18 . Conclusion Under Articles 408(2)(f) and 538(2) of the TCC, the “wholesale of a significant amount of company asset (active)” is governed. In the 15 Kırca / Şehirali Çelik / Manavgat, Anonim Şirketler Hukuku I, Ankara, 2013, p. 644-645; Biçer / Hamamcıoğlu , p. 47; Ayoğlu , p. 100. 16 Dural , p. 237; Ayoğlu , p. 99. 17 Ayoğlu , p. 100-102. 18 Biçer / Hamamcıoğlu , p. 49; Dural , p. 227.