6 NEWSLETTER 2021 Qualification commitments can be about the current operational status, management, current assets and/or other economic values of the company whose shares are subject to transfer. Guarantee commitments will govern the issues apart from these. Qualification commitments can be related to an actual situation at a certain moment, whereas, representations and warranties related to the future shall be evaluated as guarantee commitments. Yet, qualification commitments concerning the future are not deemed invalid and are considered to be guarantee declarations.8 In some cases, the qualification commitments or guarantee commitments of the seller can be restricted with a seller’s best knowledge clause. If that is the case, the seller is only liable to the buyer for the occurrence of risks that are known or that can be known by the seller. In cases where such restriction is foreseen, there is a “subjective guarantee. ” The guarantees that are provided independent from whether or not the risk is known by the seller are called “objective guarantees. ”9 Another significant issue exists regarding for which type of share purchases representations and warranties should be included in the share purchase agreements. Here, the issue that needs to be examined is whether the share purchase resulted in a change of dominance and control. In a share purchase where there is no change of control, the transferor should be liable for the qualification commitments and guarantees that are expressly represented and warranted under the share purchase agreement, i.e. with the promissory transaction, and the transferor shall not be liable for other subjects related to the activities of the company apart from these.10 In addition, for share transfers that result in change of control, the sole subject of the transaction should not be considered as transfer of the ownership of the shares, rather, it should be considered as transfer of all of the elements that are part of whole activity and assets of the company.11 In other words, it is the company itself that is transferred. 8 Buz, p. 73-74. 9 Buz, p. 76-77. 10 Paslı, Ali: Anonim Ortaklığın Devralınması, Vedat Kitapçılık 2009, p. 271. 11 Paslı, p. 272.
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