Commercial Enterprise is the combination of certain capital and / or labor independently by the entrepreneur to generate economic income.
In the Turkish Commercial Code, the concept of commercial enterprise is not included, only commercial works are stated. According to the 3rd Article of the Turkish Commercial Code, the matters regulated in the law and all transactions and acts concerning the commercial enterprise are considered commercial enterprise.
According to this;
"ARTICLE 4- (1)Regardless of whether the parties are dealer or not, with civil lawsuits and non-contentious judicial affairs arising from matters related to the commercial operation of both parties;
a) In this Law,
b) In Articles 962 to 969 of the Turkish Civil Code regarding those dealing with lending in return for pledges,
c)In the articles 202 and 203 of the Turkish Code of Obligations dated 11/1/2011 and numbered 6098 on the acquisition of assets or enterprise and the merger, In articles 444 and 447 regarding the prohibition of competition, In Articles 487 to 501 regarding the publishing contract, In Articles 515 to 519, which regulate the letter of credit and credit order, In Articles 532 to 545 regarding the commission contract, In Articles 547 to 554 stipulated for commercial representatives, commercial agents and other dealer assistants, In Articles 555 to 560 on remittance, and in Articles 561 to 580 that regulate safekeeping contract,
d) In the legislation on intellectual property law,
e) in special provisions regarding stock exchanges, exhibitions, fairs and markets, warehouses and other places specific to commerce,
f) in regulations regarding banks, other credit institutions, financial institutions and lending transactions,
Civil lawsuits and non-contentious judicial affairs arising from the stipulated matters are considered as commercial lawsuits and commercial non-contentious judicial proceedings. However, the lawsuits arising from the rights of money order, remittance and intellectual and artistic works, that do not concern any commercial enterprise, are excluded from this.
(2) (Amended: 28/2 / 2018-7101 / 61 art.)Evidence in commercial litigations and their presentation are subject to the provisions of the Civil Procedure Law No. 6100 dated 12/1/2011; Simple trial procedure is applied in commercial litigations whose amount or value does not exceed five hundred thousand Turkish lira. "
Elements of Commercial Enterprise
There are four basic elements of a commercial enterprise. These are as follows: targeting to generate income, continuity, independence and exceeding the boundaries of shopkeeper activity.
If we explain; It is essential that it has the purpose of generating income in commercial enterprises. The said income generation activity must be continuous, it must be carried out independently and exceed the limits of shopkeeper's activities.
Turkish Commercial Code defines the Shopkeeper as follows. " Whether it is mobile, in a shop or fixed in certain parts of a street, a person who is engaged in art or trade and whose economic activity is based on his physical work more than his capital and whose income does not exceed the limit indicated in the decree to be issued in accordance with the second paragraph of Article 11. "
In the commercial enterprise, the human element and the asset element coexist. First of all, the human factor refers to the person who runs the business on her behalf, that is, the shopkeeper.
Headquarters and Branches in Commercial Enterprises
The requirement that every commercial enterprise has a center is regulated indirectly in the Turkish Commercial Code. The center of the commercial enterprise refers to the place where the administrative, legal and commercial activities of the enterprise are gathered and carried out.
The concept of a branch can be defined as the places where industrial or commercial activities are carried out and sales stores that are dependent on the center but independent in their external relations, with a separate place.
Transfer of Commercial Enterprise
It is possible to transfer commercial enterprises as a whole. In this context, it will not be necessary to carry out the transfer of the elements related to the assets one by one, it will be sufficient to make the transactions regarding the commercial enterprise in writing and to be registered and announced in the trade registry. Until the notification is made, the two-year period in which the transferor will be responsible together with the transferee will not begin.
There are also debts within the scope of the transfer of the commercial enterprise, it covers debts active and passive. In accordance with the relevant article of the Turkish Code of Obligations, although the consent of the creditor is required in case of transfer of the debt, the transfer of the commercial enterprise is an exception. Consent is not sought as it improves the creditor's situation. The transferee will also be responsible for debts that she did not know during the transfer. Again, even if one or part of the elements of the enterprise belong to a third party, the bonafide transferee will gain ownership over those elements. Tenancy right will pass to the transferee, unless otherwise agreed.
Although the transfer of the commercial enterprise covers the whole of the enterprise, it is possible for the parties to exclude the transfer of some elements by placing a provision in the contract.
Even if there is no prohibition of competition in the contract related to the transfer, the transferor will be obliged not to compete with the company transferred in accordance with Article 2 of the Turkish Civil Code.
Dealer Assistants
Since it is not possible for the dealer to carry out all the enerprise and transactions related to its commercial enterprise, it is possible for the dealer to benefit from the labor and overtime of the assistants. Dealer assistants are divided into two as dependent and independent.
Dependent dealer assistants act on the orders and instructions of the dealer. Independent dealer assistants are independent and as a rule do not receive orders or instructions from the dealer.
Independent dealer assistants act on account of the dealer but on their own behalf, while dependent assistant dealers act on behalf of the dealer.
While dependent dealer assistant do not have a separate enterprise, most independent assistant dealers have a separate enterprise.
While the working hours and procedures of the dependent assistant dealers are determined by the dealer, the independent assistant dealer determine the working hours and procedures themselves.
Dependent dealer assistants consist of only real persons, while independent assistant dealers consist of both real and legal persons.
Commercial representative
The Turkish Code of Obligations defines the commercial representative as follows: "A commercial representative is the person authorized by the enterprise owner, expressly or implicitly, to manage the commercial enterprise and represent himself with the power of commercial representation under the trade name in the business transactions."
It is possible for the dealer to appoint a commercial representative with a unilateral declaration of will and is not subject to any form, but must be registered with the trade registry within 15 days after the appointment of the representative.
According to the Turkish Code of Obligations, the commercial representative will be deemed authorized to make a foreign exchange commitment on behalf of the business owner and to carry out all kinds of transactions on behalf of the business owner against bona fide third parties. However they cannot transfer the immovables or restrict them with a right unless they are expressly authorized. In addition, the power of representation can be limited to the business of a branch and on the condition that more than one person sign them together, and the restrictions will not be in effect against bona fide third parties, unless they are registered with the trade registry. Other restrictions, even if they are registered, cannot be put forward against bona fide third parties.
The termination must be registered even if it is not registered with the trade registry when the power of representation is given. Otherwise, this authorization will remain valid for bonafide third parties.
Commercial agent
Commercial agent is defined as follows according to the Turkish Code of Obligations:"The person authorized by an enterprise owner to manage his enterprise or to carry out some of his business, without authorizing him to be a commercial representative."
Although the authorization covers all the usual business and transactions of the enterprise, it will not include borrowing money and the like, making a foreign exchange commitment, filing a lawsuit and following the lawsuit, unless clearly authorized.
Other Dealer Assistants
Other Assistant Dealers, employees or servants of commercial enterprises dealing with wholesale, semi-wholesale or retail sales, within that commercial enterprise, in a place that customers can easily see and easily read, are authorized to perform the following transactions, unless otherwise announced in writing:
To make all the usual sales transactions of the commercial enterprise.
Signing invoices for transactions for which they are authorized.
To make warnings or other explanations on behalf of the business owner regarding the performance of the debts arising from the usual transactions of the commercial enterprise or their non-performance or not properly; to accept warnings or other statements of this nature on behalf of the commercial enterprise, especially the defect notifications regarding the goods delivered due to the usual transaction.
Employees or servants of commercial enterprises dealing with wholesale, semi-wholesale or retail sales, unless authorized in writing, cannot request and receive sales prices, outside the business and if they are assigned to cashiers.
These persons are also authorized to close invoices or issue receipts, if they are authorized to receive sales prices.
Prohibition of Competition
A prohibition of competition is regulated in the Turkish Code of Obligations regarding the dealer assistants. Commercial agents, commercial representatives or other dealer assistants who manage all business of an enterprise or are in the service of the business owner may not, directly or indirectly, do business on their own or a third party's account, without the consent of the business owner. In addition, they cannot have third parties make such transactions on their own accounts.