Dr. Özlem Döğerlioğlu IŞIKSUNGUR

Yasar Univesity- Lecture Notes Yasar Univesity- Lecture Notes Spring 2012Spring 2012

ozlem@dogerlihukuk.com

A merchant has a commercial enterprise. BUT

A merchant may have more than one commercial enterprises

To have more client To give better service or .....

The relationship between/among these commercial enterprisesIndependent from each other ORDependent (Head Office – Branch)

2Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

Question 1:◦ Merchant A has three enterprises operating in

three different subject: Clothing, automotive and food.

◦ What is the relationship among these enterprises? Question 2:

◦ Garanti Bank A.Ş opened a new office in Alsancak/İzmir

◦ What is the relationship among these enterprises?

Every commercial enterprise must have a head office (principal place of business)

NTCC Article 40.1- no definition It is generally accepted that head office is

the place from where all commercial, administrative and legal affairs of commercial enterprise are organised and conducted.

The location of this place is important with regard to registration in the register of commerce, in determining the competent court

Commercial enterprises operated by a real person---- head office can be different from the residence(domicile) of real person

Commercial enterprises operated by a legal person---- head office is the place mentioned in the articles of association/charter

The legal and commercial affairs of X Export-Import Ltd. Compnay are organised and conducted in Istanbul BUT the plant (manufacturing) takes place in Izmit. Under these conditions where is the head office?

6Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

A unit of a commercial enterprise A unit of a commercial enterprise It functions under the authority and directions of It functions under the authority and directions of

the head officethe head office No definition in the NTCCNo definition in the NTCC Definition in the Law of Definition in the Law of Turkish Union of

Chambers and Commodity Exchanges & Chambers and Commodity Exchange Numbered 5174 (TÜRKİYE ODALAR VE BORSALAR BİRLİĞİ İLE ODALAR VE BORSALAR KANUNU)◦ Article 9/2

7Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

To qualify as a Branch :To qualify as a Branch : The unit The unit

A.A. should be dependent to Head Officeshould be dependent to Head Office Head office and branch --- belongs to same real person or legal Head office and branch --- belongs to same real person or legal

personperson Branch cannot adopt a business policy independent from the head Branch cannot adopt a business policy independent from the head

officeoffice Loss and profit belongs to head officeLoss and profit belongs to head office

B.B. should be independent from head office in its dealings with should be independent from head office in its dealings with the third partiesthe third parties

C. C. should have its own place, management and should have its own place, management and accountingaccounting

8Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

IMPORTANT!

◦ Although it is not a branch, usage of “branch” term as if it is a branch

◦ Seperated capital allocated to the branch◦ Collection of cheques and draft by the branch

◦ The above mentioned points are not of importance to be a “branch”

9Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

Manufactoring store of Textile company (no sales)

Reservation office of a Hotel in other city

BRANCH? OR NOT? WHY?

A. Registration to Register of Commerce◦ NTCC Article 40.3

If Head office in Turkey--- registration to the regiter of commerce where the branch takes place

Within 15 day (Article 30.1) from the date of opening B. Registration to Chambers- registration to the

chambers where the branch takes placeC. Trade-name

NTCC Article 48.1Branches should use their Head Office trade names by mentioning that they are branchLegal person----Ziraat Bank Konak BranchReal person---- Neslihan Yargıcı Cevahir AVM Branch

D. Representation

11Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

Tansaş T.A.Ş. decided to open new sales stores called “Mini Tansaş Market” in different cities of Turkey.

Basing on this decision, Tanşas T.AŞ opened a new sales store in Denizli but not registed this store to the register of commerce as a branch.

Officials of the Register of Commerce ascertained that, although Denizli office had branch qualification, didn’t register to the register of commerce. Upon this finding, called the person concerned for registration.

In their reply, Company mentioned that, the store in Denizli couldn’t be deemed as a branch and due to this reason the registration was necessary

Then, Officials of the Register of Commerce brought a case against company

12Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

Please evaluate below mentioned points taking into consideration the case and provisions of NTCC

1. The store in Denizli doesn’t use “branch” term in their trade name

2. The store does not sell any product to third parties

3. The store doesn’t have seperated capital allocated to itself

4. Accounting is in the Head office

13Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011