NEWSLETTER-2019-metin

55 COMMERCIAL LAW • Be meeting the conditions issuance of a certificate regarding unattainability of the receivables in a legal procedure against it; • Have moved its headquarters abroad and, therefore, it beco- mes impossible to be pursued legally in Turkey; or • Have moved its headquarters that is already abroad and, the- refore, it becomes hard to be legally pursued. In the event that all such conditions are fulfilled, and the company that is allocated the debt to through spin-off agreement or plan does not fulfill receivables of the creditors, other companies who have par- ticipated in spin-off transactions (secondary liable companies) shall be severally liable. It is notable that the scope of the liability is not foreseen under the Article. As a matter of fact, in addition to the fact that the Article text does not contain any restrictions on the unfulfilled receivables, it also does not include any restriction on the scope of the liability of the second- ary liable companies. If the Article is literally interpreted, it is clear that the failure of a company participating in a spin-off to fulfill any of its receivables (irrespective of whether the receivable is allocated through a spin-off) may result in the liability of the secondarily li- able companies. However, taking into consideration of the purpose of the Article, it may be evaluated that the secondary liability should be raised only in terms of the debts occurred prior to spin-off. Concor- dantly, the preambles of the Article refer to the transferred, assigned debt while describing the liability 3 . On the other hand, as the scope of secondary liability is not re- stricted, the secondary liable companies shall be liable through all of their assets, not limited by the assets allocated to them through spin- off in the case that the primarily liable company does not fulfill the receivables in subject. 3 Preamble of TCC. https://www.tbmm.gov.tr/sirasayi/donem23/yil01/ss96.pdf , (Access date: 01.04.2019).