WHAT IS COMMERCE?

In the economic sence commerce is the port of business which is concerned with the exchange of
goods and services and includes all those activities which directly or indirectly facilitate that
exchange.

NATURE OF COMMERCIAL LAW

Commercial law is the branch of law which is concerned with rights and duties arising from the
supply of good and services in the way of commerce.

Commercial law a set of rules applied to commercial enterprises and commercial affairs.

THE NEED OF COMMERCIAL LAW

The underlying motif that makes out the legal treatment of commercial transactions is the need to
protect the free. How of trade and to avoid the applications of rules that will operate to the
disadvantage of buyer and seller in the ordinary surse of business.

THE INTEREST TO BE PROTECTED

 The contract between the buyer an the seller is in the centre of commercial law.

 Other interests that need protection by law

Public Health: the consuming public need safguard to ensure that the g/s in the market is not
injurious to life or health.

* Monopolies: The consuming public will not be held to ransom by monopolies

* False or misleading advertisement

* Protect national economy

SOURCES OF COMMERCIAL LAW

Contract: A binding agreement between two or more paeties that creates in ecah party a duty to do
or not do something and a right to performance of the other's duty or a remedy for the breach of the
other's duty

 Domestic Legislation.
 External sources of low
 Soft law
ACCORDING TO WHICH SYSTEM?

From the beginning of the commercial law history the comercial codes of states are regulated
according to 3 systems

 Subjective System: Focuses on the trader only

 Objective System: Focuses on the commercial matters
 Modern system:Focuses on the commercial matters
 The turkish commercial code (tcc) is regulated according to the modern system

THE STRUCTURE OF TURKİSH COMMERCİAL

 Introductory Provisions.
 Book 1 - Commercial Enterprise law
 Book 2- Company Law
 Book 3-Negotiable Insturments Low
 Book 4 - Maritime Law
 Book5 - Transportation Law
 Book 6- Insurence Law
 Concluding Provisions

1) Her isletme ticari midir?

2) Her ticari işletme bir işletme midir?

COMMERCIAL ENTERPRISE

 The definition of commercial enterprise shows difference in the field of economic and law.

 In economy field it can be defined as pooling of labor and capital intependently to reach
economic benefits by an entrepreneur.

 Accordingly, both Cengiz Büfe and Groseri are enterprises which seek for an economic
purpose but is it possible to put these two economic units into same category

 Comercial enterprise can be run by a real or legal person

 Assume that cengiz büfe is an comperativaly Small, local Snack bar in adana. it is operated by
Mr cengiz. mr Cengiz is a real person trader and the snack bar is his entspace

 The Zara shop there is no real person trader because Zara ve Tc A.S. has its own legal
personality.

 In the second example zara tekstil ve Ticaret AS. is the legal person trader and the zara shop
is its commercial enterprise
  In the Turkish legal system, it is not possible for a com enterprise to have a personality.
Commercial enterprise is the place where the economic activity is done, such as grocery
store, shop, parking lot or car wash etc.

 The person who runs the enterprise ca have a personality and this personality can be real or
legal personality.

 Commercial enterprise is a part of the total wealth of the trader and the economic activities
are operated via this enterprise

 As the commercial enterprise do not have a posonalty it cant incur in debt be entitled to any
right etc.

 in legal sese com ent is defined in the Art 11 of Tcc

 Definition : an enterprise that is operated permanently and independently and aims to

generate income exceeding the limit of a typical craftperson

* *Factors of Commercial Enterprise

 Operated permanently
 Operates independently
 Aims to generate income
 Exceeds the limits of a typical craftperson

CRAFTPERSON

 Their Shops can be mobile, immobile or localized to a given street

 Their duties are based on their corporal activity the on capital
 Their income does not exceed the limits determined by the Presidental decress.
 They work a craft or conduct commerce.

FACTORS OF A COMMERCİAL ENTERPRİSE

Aims to generate income: A place established for purely charitable purposes cannot be considered as
a commercial enterprise.

Operated permanently: Temporary busines do not form a commercial enterprise

Operated independetly: Branch of a commercial enterprise is not seperate commercial enterprise

Exceeds the limits of a typical craftperson: The limit is determined by Presidental Decrees according
to the tax regime

* Those who are taxed under simple method or exempled from tax are craftperson.

*Those who keeps books according to the balance sheet metod are considered as trader.4
ASSETS OF THE COMMERCIAL ENTERPRISE

 The assets a commercial enterprise may have are listed in the Art. 11/3 of the TCC these assets
also establish the economic infrastructure of the commercial enterprise

-Fixed assets (machines, Office Equp. building)

- Current assets (Goods, raw materials, semi-product)

- Business value (God will / business reputation)

-Trade name

- Tenancy rights

- Other intellectual property rights (Brand, patend)

- Good that are permanently assigned to the enterprice are counted as assets that a commercial
enterprise posses.

STRUCTURE OF COMMERCIAL ENTERPRISE

 The Head office (Centre):

A commercial enterprise has its praduction facilities in Gebze, administrative centre in Istanbul and
branches in Ankara and Eskisehir, Where would the head-office be in?

-TCC Art 40 that every com ent. has to have a head office which is registered to the thade registery

 Branch: A branch is a place where commercial ent. are carries out on its own, regardless of
whether it has an independent capital or acoounting, whater it is in the registry area where the
head office is located or in another registry area.

ELEMENTS OF BRANCH

 To be connected to the head-office in internal affairs:

- Receives orders and instructions from the center
- Cannot have a different business policy than the centre
- Lose and profit of branch belongs to the center
- Agencies, franchising businesses and dealers de legally independent. Thus, they are not counted
as branch

 Independence in External affairs:

- Can do the work of the center on behalf of the center with the third parties.

- A bakery seels cakes and biscuits. Its branch consell cotes and biscuits too A shop that only
producess products to sell in the bakery isn't a branch because it is not doing the main activity -
selling cakes and biscuits.
 Separation of place and administraction:
-This seperation is not interpreted strictly

TRANSFER OF COMMERCIAL ENTERPRISE

* Transfer of a commercial enterprise is transferring commercial enterprise with all its active and
passive assets to another person

* The transfer agreement must be done is a written away

* The business is transferred as a whole. No seperate mondatory transactions are needed for each
asset.

*The person who takes over the enterprise becomes liable for debts of enterprise starting from the
date he notified the creditors.

*However, the previous debtor remains liable with the transfence as a joint - debtor for a period of
two years. This period starts;

- For due debts the priod starts with the notification

-For debts that will be due in later, the period starts. from the due date

-Note that the transferor isn't responsible of the debts the transferee did after transaction

THE SITUATION OF TENANCY RIGHT IN A TRANSFER OF COMMERCIAL ENTERPRISE

When transferring a commercial enterprise to another trader, is the right of tenancy also
transferred?

→Rule (TLDArt. 323) The lessee (one who rents) cannot transfer the rental relationship to another
person, unless he obtains the written consent of the lessor (landlord). In workplace renting contracts,
the lessor can't refrain from giving this consent unless there is a justifiable reason.

- The person to whom the rental relationship is transferred replaces the tenant in the renting
agreement, and the transferring tenant is relivered of his debts to the lessor.

- In workplace renting contracts, the transferce is jointly liable with the transfere until the end of the
lease agreement and for a max of two yers.

Example

 A-lessee com ent

 B-Lessor (Londlord)
 C- New tenant (CE2)

Situation 1 A B (tenant relationship)

Without written consent of B. A can’t transfer the renting relation to anyone including C

If C is on ordinary lessonr

B had the right not to give consent.

If C is a renting the place to use as a workplace,

B has to give consert Unless he has a justifiyable reason.

COMMERCIAL MATTERS

* The definition of commercial matter isn't given in the TCC. Any matter other than those stipulated
in the TCC are considered ondinry matter.

* Matters regulated by the TCC (Art 3)

-The matter doesn't have to be related with the enterprise or the parties doesn't need to be traders.

FE Agentship current account agreement bill of exchange insurance agreement.

-A sales contract among the craftperson is an ordinary matter. However if a check is given as a sales
price then this become a commercial matter.

* Matters related with commercial enterprise

- Any matter directly on indirectly related with commercial enterprise is commercial matter for the
trader who makes this transaction.

-Selling wool to customer is a ordinary matter for the craft person. if the same selling is done by a
trader then this would be a commercial matter for the trader.

-If a wool trader buys furniture for his home this become on ordinary matter for the trader.

PRESUMPTION OF COMMERCIAL MATTERS

 It is essential that a trader's debts are comercial

 However, the debt is considered ordinary if a real person trades clearly informs the other party
that the transaction isn't related to his commercial enterprise or the situation isn't suitable for
the business to be considered commercial
 Legal person traders con't have a private life.
MATTERS THAT ARE COMMERCIAL FOR ONE OF THE PARTİES

 Contracts that are in the nature of commercial matter for only one party are considered
commercial matter for the other, unless contrary stated in laws.

 2. conditions must be fulfilled; Tansaction must be commercial matter for one party and there
must be a contract among parties.

 Ali Antep sells baklava to mustafa, who is a Civil servant, in his commercial enterprise. The
transaction is clearly commercial for Ali Antep because the transaction is related to commercial
enterprise from the aspect of mustafa, this is an ordinary matter. However, the sales contract
tranforms the ordinary matter to commercial matter.

 if ali Antep busy furniture to his home from craft person Bahri, this transaction is ordinary for
both parties.

RESULTS OF COMMERCIAL MATTERS

Presumption of Solidarity: If two or more person are jointly in debited to another person due to a
commercial matter, they are jointly liable unless other wise stipulated, in the law or the contract

Thus for Art 7 to be applied..

- More than one person musst be assumed a debt against the creditor.

-The business must be commercial matter.

- More than one person must be indebted jointly

- Otherwise musn't be stipulated in the law or the contract.

Not than in ordinary businesses, if two or more person wants to be jointly indebted to another
person, this must be arranged by the contract.

INTEREST IN COMMERCIAL MATTERS

According to the Art 8 of the TCC the interest rate can be freely determined.

-Capital Interest: interest paid to the lender due to the deprivation of money for a period of the time

-Default Interest: A provision to be paid to the lender for the days delayed due to non-payment of
the debt on time.

 If contrary is not determined in the contract, the interest of a commercial debt starts in the
maturity date of the main capital. If there is no certain maturity date, the interest date starts in
the warning day

 In commercial matters, capital interest can be gained even if it is not agreed on in the contract.
 *Withdrawring a loan from a bank is a commercial matters

Capital interest applies

* When A loans to B, if it isn't expressed clearly only the main load can be asked The lender can't
ask for capital interest.

EXCEEDİNG THE MAX. UPPER LİMİT: By rule, transactions and conditions prohibited by commercial
provisions are void. However contracts that exceed the highest limit set by commercial provisions of
the competent authority are deemed to have been concluded on the highest limit, actions exceeding
the limit are undone even if they are performed by mistake.

LAPSE OF TİME İN COMMERCİAL MATTERS: The laps of time stipulated in the commercial provisions
cant be changed by contract, Unless there is a contrary regulation in the law.

COMMERCİAL PROVİSİONS

All the provisions of the TCC and provisions. of other lows regarding transactions of commercial
enterprise are commercial provisions.

-All provisions under the TCC are com provisions

-Examples of provisions of the other codes regarding commercial enterprise;

* Turkish Law of Obligations - Provisions regarding assets and transfer of a commercial enterprise

* Check Law

* Capital Markets Law

*Banking Law.

THE HİERARCHY OF COMMERCİAL PROVİSİONS

 Statutory Provisions of Law

 Contractual Provisions
 Complementary Commercial Provisions
 Commercial Usage and Customary
 General Provisions (Law of obl and Civil Law)