38 NEWSLETTER 2021 for a constitution. This provides flexibility to family members regarding the content and revision of the constitution, as well as protecting the confidentiality of constitutional articles. However, it is recommended that the family constitution be made in writing and signed by all family members in order to make the text accessible to the family and to provide ease of proof to the parties in case of disputes that may arise. As a requirement of pacta sunt servanda and the rule of legal certainty, integrity and honesty, the family constitution, being a contract, binds every signatory family member as a debt contract. However, the provisions are not legally-binding for family members who are not signatories, members who join the family later, or shareholders of the family businesses and companies. On the other hand, it is possible to reflect some of the provisions in the family constitution in the articles of association or the shareholders’ agreement2 to the extent permitted by Turkish Commercial Code No. 61023 (“TCC”), thus making these rules binding for the company and its shareholders. Which Subjects Can be Regulated in a Family Constitution? The regulations of the family constitution are formed by the joint decision of the family members, their demands, and the needs of the family. Therefore, each family constitution is unique. Family members can freely determine the content of the constitution by considering the general rules and principles of the TCO and Turkish Civil Code No. 47214, and within the limits stipulated in the law. However, according to Article 27 of the TCO, family constitutions that are contrary to the mandatory provisions of the law, morality, public order, personal rights, or whose subject and content are impossible, shall be null and void. Given the purpose of a constitution, there are of course some basic issues that are frequently encountered in every constitutional text. 2 For detailed information regarding the shareholders’ agreement please see Çetinyılmaz, Ecem: “Shareholders’ Agreement in Family Businesses” Erdem & Erdem Newsletter, May 2021, http://www.erdem-erdem.av.tr/en/insights/shareholders-agreements-in-family-businesses. 3 TCC was published in the OG, No.27846, 14.02.2011 and entered into force on 01.07.2012. 4 The Turkish Civil Code No. 4721 was published in the OG, No.24607, 08.12.2001 and entered into force on 01.01.2002.
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