24 NEWSLETTER 2021 capital in kind, (i) there should be no limited right in rem, or attachment or interim measure on the asset, (ii) it should be possible to estimate the monetary value of the asset and the asset should be transferable, and (iii) the asset should not be in the nature of service, personal labor, commercial reputation, or undue receivable. The second paragraph of the article states that Article 128 of the TCC, which comes under the general provisions regarding commercial companies, is reserved.3 This reserved provision mainly governs rules on the de jure transfer of an asset, which is contributed as capital, to the company. Unlike a cash contribution, a valuation phase is required for capital contributions in kind. Referring back to the capital maintenance principle, this valuation procedure aims to prevent the company from incurring losses if the actual value of the same negatively differs from the amount of the capital commitment. As a valuation procedure, if capital in kind is brought to the joint stock company, the TCC requires a valuation report to be prepared by an expert, who is to be appointed by the commercial court where the company’s headquarters is located. Assignment of Receivables to the Company The shareholder may assign a receivable from a third person to the company within the scope of a capital commitment. As a matter of fact, the wording in the last sentence of Article 342 of the TCC, which reads “undue receivables shall not be brought as capital in kind”, confirms through argumentum e contrario, that due receivables may be put into the company as capital. In this context, even if the subject of the receivable is a cash payment, the right of receivable assigned to the company within the scope of capital contribution would bear the nature of a capital in kind.4 3 The fact that Article 128 of the TCC is explicitly reserved by Article 342(2) of the TCC, is also criticized by the scholars for not bearing any legal meaning. For these criticisms, see. Kendigelen, Abuzer. Yeni Türk Ticaret Kanunu: Değişiklikler, Yenilikler ve İlk Tespitler. On İki Levha Yayıncılık, 2011, p. 197. 4 Arıcı, Mehmet Fatih: “Sermaye Şirketleri Hukukunda Vadeli Alacağın Sermaye Olarak Konulması Yasağı” İÜHFD (2015) V.73, Issue: 1, p. 319. (Vadeli Alacağın Sermaye Olarak Konulması Yasağı).
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