25 COMMERCIAL LAW On the other hand, it is one of the points criticized by scholars, to prohibit capital contribution through undue receivables to the company as per Article 342 of the TCC, a prohibition which was not expressly stated in the repealed Commercial Code (“rCC”). When the rCC was in force, a number of scholars argued that an undue receivable could not be brought as capital to the company, even if it was not explicitly stated under the rCC. One of these scholars, Ünal Tekinalp, stated that assigning undue receivables to company is contrary to the “maturity at the registration principle,” and argued that what is in line with this principle is to assign the due receivables as capital in kind to the company.5 On the other hand, the scholars of the opposite view underlined the absence of any provision in the rCC that prohibits the assignment of undue receivable as capital to the company and argued that such assignment would not conflict with the principles in the rCC. Referring to Article 142 of the rCC which states “If the receivable is undue, it must be collected by the company within one month from the due date (…), unless otherwise agreed,” Fatih Arıcı argued that undue receivables may actually be brought to a company as capital in kind. Further he argued that (i) the right of receivable is transferred to the company upon registration, in other words, there should be no concern on its transferability; (ii) in any case, the assigned right of receivable will be subject to a valuation procedure as a capital in kind, and therefore will not constitute a violation of the equal treatment principle, and (iii) the undue nature would only bear the consequence of not claiming the amount until its due.6 With the clear wording of TCC, it is no more controversial whether it is allowed to assign undue receivables to the company as capital contribution; however, this clear choice of the lawmaker became subject criticism de lege feranda. Abuzer Kendigelen argued that the concerns leading to this prohibition on undue receivables could well be eliminated with a duly prepared valuation report, and criticized the 5 Tekinalp (Poroy/Çamoğlu): Ortaklıklar, 2005, N. 1031. 6 Arıcı, Mehmet Fatih: Alacak Hakkının Anonim Ortaklığa Sermaye Olarak Konulması, Beta, 2003, p. 58-60.
RkJQdWJsaXNoZXIy MjUzNjE=