COMMERCIAL AFFAIRS Week 5

1. COMMERCIAL AFFAIRS Week 5 Dr. Özlem Döğerlioğlu Işıksungur 2012-2013 Spring

2. CONCEPT • Ordinary affairs– commercial affairs • Commercial affairs are different from ordinary affairs and subject to different rules

3. COMMERCIAL AFFAIRS A- TCC Article 3 • The ones which are regulated in the TCC • The ones which are concerning the commercial enterprise B- TCC Article 19- presumption • The debt of the merchant is commercial. (19.1) • Exception for real person merchants C-Affairs which is deemed commercial for one party (19/2) The contracts which are deemed as commercial for one party, shall be accepted as commercial for the counter party

4. A-The Affairs Regulated in TCC • The affairs regulated in the TCC, shall be deemed as “commercial” whether it is related to commercial enterprise or not—absolute commercial affair • Example • Valuable document • Unfair competition

5. A- Affairs concerning commercial enterprise • Example: • A merchant buys machines to use in the commercial enterprise • To rent an office to use as a pharmacy • To give power of attorney to a lawyer concerning a dispute derived from commercial enterprise.

6. B-Presumption of “commercial affair” Real Person Merchant Legal Person Merchant • Two options to be deemed as ordinary • Explicitly declaration of the counter party • Ex. Purchasing washing machine for personal usage • As the case may be • Ex. Puchasing washing machine, (there is no explicitly declaration) but the delivery address is home address. • Owner of the factory buys furniture for home usage. (owner of the factory is consumer) • All of the affairs of the legal person merchant are commercial • Ex. Company, rents a property for the employees’ usage.

7. Presumption of “commercial affair” • Presumption: The debt of the merchant is commercial • Burden of proof? • But this presumption can be rebutted by the real person merchant. To rebut this presumption, two options: • At the time of action, expressly, real person merchant should inform the counter party that the affair is not related to his commercial enterprise • Ör. Merchant A buys a washing machine for the pupose of home usage (to give information to the counter party) OR • As the case may be (Evaluation for each case) Important! All affairs of Legal Person Merchant are “commercial”

8. C-What happens if the affair is accepted as commercial for one party BUT ordinary for the counter party? • TTC 19.2 • Unless otherwise provided in the TCC, any contract that has commercial character for one party shall be deemed as commercial for the counter party • Ex. Sales contract between merchant and civil servant • Conditions • Contract • Unless otherwise provided in the TCC • If Relationship between the parties derived from tort or unjust enrichment, this provision is not applicable

9. Question • Real Person Merchant A buys furniture from Legal Person Merchant B basing on a sales contract • Real Person Merchant A says that he buys this furniture for his home • Question: Is this affair commercial for both parties?

10. CONSEQUENCES OF COMMERCIAL AFFAIRS A-Validity of Presumption of solidarity (joint and several obligation) concerning the commercial affairs B-Application of commercial interest C-Legal limitation periods D-Application of commercial provisions E-Legal Disputes – Commercial Case

11. A-Presumption of solidarity • Solidarity : Consecutively, • joint and several liability concerning the commercial affairs • Article 7 of TCC • In TCC, solidarity among debtors • Conditions: • Two or more person should be in debt against one creditor • For one of them or both of them, source of the debt should be “commercial affair” • Unless otherwise mentioned in Law or contract • The guarantors --- “co-debtor and joint guarantor”

12. B-Interest • Concept of “interest” • Definition: A fee which one party pays to the counter party (in return for deprivation of the usage of money for a specific period ), for the privilege of using borrowed money • Types of Interest: • Capital interest- Default interest • Simple interest- Compound interest • Legal interest- Conventional interest

13. Main Characteristics of Commercial Interest • Even if it is not agreed in the contract, merchant has right to demand “interest” • Compound Interest Application • TCC Article 8/II • Not applicable for ordinary affairs • Determination of Interest Rate freely • It is possible to ask for higher interest rate for commercial affairs than ordinary affairs

14. Date of Interest Application • Begining date of the Interest Application, can be mentioned in the contract such as signing date of loan agreement • If not mentioned in the contract, interest shall be applied as of due date or if there is no due date as of notification date.

15. C- Legal Limitation Periods • TCC Article 6.1 • Unless otherwise mentioned by Law, it is not possible to alter “the Legal Limitation Periods prescribed in Law” by Contract

16. D- Application of Commercial Provisions • Commercial Provisions: • Provisions in the Commercial Code (whether it is related with commercial enterprise or not is not importance) • Written special provisions in the other Codes concerning any transaction and activity related to commercial enterprise (Eg. Civil Code, Code of Obligations)

17. Orders of Provisions Applicable to the Commercial Affairs

18. Statutory provisions (Emredici hükümler) • A- Statutory provisions (Emredici hükümler) • It is not important whether it is commercial or not, at first, statutory provisions will be applied. • A provision is statutory • When legislator mentions in the provision that contracts contrary to provision concerned is forbidden • (Article 232 of NTCC General partnership... Any contract contrary to this article is unvalid from the point of third parties) • the language of the article uses words that shows “necessity and certanity” (NTCC Article 18 “ Merchants are obliged to...... ) • Any article related to the validity of the legal transaction (Article 20 of NTCC) • Any article concerning form requirement(Article 212 of NTCC- written form) • Any article concerning public order

19. Contract Provisions • Freedom to contract • BK m. 26-27 • Article 132 of TCC • MADDE 132-(1)Kanunlarda aksine hüküm yoksa, şirket sözleşmesiyle ortakların, koydukları sermayeler için faiz ve şirketteki hizmetleri sebebiyle kendilerine ücret verilmesi kabul olunabilir

20. Trade Customs&Usage

21. Difference– Commercial Practice&Commercial Customs and Usage • Difference between commercial practice (ticarî teamül) & commercial customs and usage • Elements: Objective element+ Pyschological element BUT no sanction(legal) • QUESTION: To whom we can apply the commercial customs and usage? • TCC Article 2/3 • commercial customs and usage are applicable to merchants • commercial customs and usage are applicable to people who are not merchant on condition that they are known by them or they ought be known by them • Burden of proof belongs to claimant

22. General Provisions • General Provisions • In other words noncommercial provisions of Civil Code and Code of Obligation and so on • IMPORTANT: Commercial Code is part and parcel of Turkish Civil Code (Article 1 of TCC) • Article 1 of Civil Code Application and sources of law “ The law must be applied in all cases which come within the letter or spirit of any of provisions. Where there exists no applicable provision of law, the judge shall decide according to customary law and, in default thereof, according to the rules that he would lay down if he himself had to act as legislator In rendering his decisions, the judge benefits from legal opinions and case law”

23. E-Commercial Jurisdiction • Why it is important? • Is it a commercial case or not? • The case shall be held in the commercial court or not? • Private procedural provisions?