Dr. Özlem Döğerlioğlu Işıksungur
2012-2013 Spring


Regulated in Article 11-23 of TCC
Merchants:
Real (natural) persons
 Legal person


In NTCC, “merchant” concept regulated
seperately from the point of “real
person” and “legal person”
REAL
(NATURAL)PERSONS


Definition: Person who
operates a commercial
enterprise, at least in
part,under his name.
Elements:



Existence of a commercial
enterprise
Operation of the commercial
enterprise, at least in part
Operation of the commercial
enterprise, at least in part,
under the name of the person
concerned
LEGAL PERSONS



Commercial companies
Associations & Foundations
which operate commercial
enterprise to achieve their
targets
Entities which are formed by
State, Private Provincial
Administration, Municipality,
Village and other public
corporations to be operated in
a commercial manner or
pursuant to their statutes of
foundation to be managed
according to private law

Definition: (Article 12.1 TCC)

The person who operates a commercial enterprise,
at least in part, under his name
Operation under
the name of the
merchant
Commercial
Enterprise
De facto
operation
= MERCHANT

A- Existence of a Commercial Enterprise

General rule: To qualify as a merchant, existence of
commercial enterprise is the first condition
Elements of commercial enterprise?
BUT
A person who although has not established a
commercial enterprise, enters into relationship
with third parties as if he had formed a
commercial enterprise, shall be held liable like
merchant against third parties in good faith


A- Existence of a Commercial EnterpriseCONTINUE

Elements of commercial enterprise




Economic activity
Continuity
Independency
Capacity

A- Existence
CONTINUE


of
a
Commercial
Enterprise-
Third party shouldn’t know or it should be not
possible to know that there is not a commercial
enterprise, an ordinary partnership or any
coorporation.
The person who enters into relationship with third
parties as if he had formed a commercial enterprise
(actually not)
 LIABLE as merchant, BUT
 Doesn’t benefit from the rights given to merchant
 Example: demand of bankruptcy is possible but demand
for decreasing of penal clause is not possible

B- Operation of the commercial enterprise

What is the meaning of “ operation of commercial enterprise?


De facto operation
TCC Article 12/II
 Establisment of an enterprise
 Enter into business dealings with third parties
 “Bir ticari işletmeyi kurup açtığını, sirküler, gazete, radyo, televizyon ve
diğer ilan araçlarıyla halka bildirmiş veya işletmesini ticaret siciline tescil
ettirerek durumu ilan etmiş olan kimse, fiilen işletmeye başlamamış olsa
bile tacir sayılır”
 The person involved should have started the operations. If he/she has
entered the establishment
 with register of commerce and publication or
 has made annnouncements to the public, whether through
newspapers or by distributing letters or leaflets, adverstising
establishment,
 he would still be regarded as a merchant
 Rights&obligations of being merchant

C- Operation of the commercial enterprise at
least in part, under the name of the person
concerned
“at least in part” – jointly operation of enterprise
by more than one person
 Operation of the enterprise by merchant is not
compulsory

 On behalf of merchant, anyone may operate the
commercial enterprise
 “Merchant character” belongs to whom? Worker?

A- Existence of a Commercial EnterpriseCONTINUE

The person involved should have started the operations.
If he/she has entered the establishment with register of
commerce or has made annnouncements to the public,
whether through newspapers or by distributing letters or
leaflets, adverstising establishment, he would still be
regarded as a merchant





Minor
Not being in full possession of his mental faculties
Barred from involving in commercial business
Civil servants
Dealing in commercial activities depended on a
permission



People who are minor and who are under
guardianship
People barred from involving in commercial
business
Dealing in commercial activities depended on a
permission

A- People who are minor and who are under
guardianship : According to TCC Article 13, if the
commercial enterprise is operated by a legal
representative (guardian by nature or curator) on
behalf of the people who are minor and who are under
guardianship, these people shall be deemed as
merchant

Legal responsibility derived from being merchant
belongs to people who are minor and who are under
guardianship
but criminal liablity belongs to
guardian by nature or curator

People who are minor and
guardianship :
 who are under guardianship?
who
are
under
 Insanity (madness)
 Weakness of the mind
 Prodigality
(
savurganlık),
toxicomania
(alcohol,narcotic), bad lifestyle, bad management
 Jail sentence (one and over one year)
 Demand


B-People barred from involving in commercial
business
Article 14/I of TCC: The person who are deprived of or prohibited
from dealing in commercial activities because of


Their personal status or
The position/profession they occupy


Prohibition: Legal provision or Judgment
Permission required: (person or legal authority)

Deemed as merchant accordingly, if they are engaged in commercial enterprise

Kişisel durumları ya da yaptığı işlerin niteliği nedenyle yahut meslek ve
görevleri dolayısıyla, kanundan veya bir yargı kararından doğan bir yasağa
aykırı bir şekilde ya da başka bir kişinin veya resmi makamın iznine gerek
olmasın rağmen izin ve onay almadan bir ticari işletmeyi işleten kişi de tacir
sayılır (TTK.m.14/I,

B- People barred from involving in commercial
business-Cont.

Example: Civil servants
 prohibition related to commerce
 İf operates commercial enterprise
 Shall be deemed as merchant
 At the same time, the person shall be subject to legal, criminal and
disiplinary sanctions according to their private law
 For civil servants disiplinary sanction

C- Dealing in commercial activities depended on a
permission

The position of married women

To operate a commercial enterprise, Permission from
husband is not required


TCC 12.2
TCC 14.1

TCC Article 12.3--- against third parties in good faith
TCC Article 13.1

Doesn’t benefit from the rights given to merchant



Person deemed as merchant, shall benefit from
the rights and be responsible for the obligations
that derived from being merchant
Person who is responsible as merchant , shall
only be responsible as merchant but shall not
benefit from the rights given to merchant
A.
B.
C.
D.
Commercial companies
Associations which operate commercial
enterprise
Foundations which operate commercial
enterprise
Entities which are formed by State, Private
Provincial Administration, Municipality,
Village and other public corporations to be
operated in a commercial manner or pursuant
to their statutes of foundation to be managed
according to private law
Commercial companies
A.
Collective company
b. Commandit company
c. Joint-stock company
d. Limited (liability)company
e. Co-operatives
a.
All commercial companies are merchant (shall be
accepted as merchant from the date of registration)
B-Associations that operate commercial enterprise
Founding purpose: Spiritual


Example: An association established for helping poor people–
opens a luxury restaurant to generate financial resource–
Association shall be deemed as merchant- The commercial
enterprise shall be registered to register of commerce
Beneficial Societies (Kamu yararına dernek) are not merchantKızılay operating Afyonkarahisar minarel water


Beneficial Societies: operation more than 1 year, purpose of the
Association, activities concerning the realistaion of the purpose,
Decision of the Council of Ministers is necessary
C-Foundations that operate commercial enterprise
General Rule: The FouBeneficial Societies (Foundations) (Kamu
Yarararlı Vakıflar) are not merchant. (Foundations that spent
%50 or more of its income to the affairs that has public duty).