“MERCHANT” Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yasar Univesity- Lecture Notes Spring 2012 ozlem@dogerlihukuk.com

CONCEPT of “merchant” Regulated in Article 11-23 of NTCC Merchants: Real (natural) persons Legal person In NTCC, “merchant” concept regulated seperately from the point of “real person” and “legal person”

REAL (NATURAL)PERSONS MERCHANT 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 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 REAL (NATURAL)PERSONS LEGAL PERSONS

REAL PERSON merchant-DEFINITION Definition: (Article 12.1 NTCC) The person who operates a commercial enterprise, at least in part, under his name

ELEMENTS OF REAL PERSON MERCHANT Commercial Enterprise De facto operation Operation under the name of the merchant = MERCHANT

REAL PERSON merchant-CONDITIONS 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

REAL PERSON merchant-CONDITIONS A- Existence of a Commercial Enterprise- CONTINUE Elements of commercial enterprise Economic activity Continuity Independency Capacity

REAL PERSON merchant-CONDITIONS A- Existence of a Commercial Enterprise- CONTINUE Third party shouldn’t know or it is 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

REAL PERSON merchant-CONDITIONS B- Operation of the commercial enterprise What is the meaning of “ operation of commercial enterprise? Establisment of an enterprise Enter into business dealings with third parties De facto operation NTCC Article 12/II “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

REAL PERSON merchant-CONDITIONS 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?

REAL PERSON merchant-CONDITIONS A- Existence of a Commercial Enterprise- CONTINUE 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

SPECIAL CONDITIONS- 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

SPECIAL STUATIONS People who are minor and who are under guardianship People barred from involving in commercial business Dealing in commercial activities depended on a permission

SPECIAL CONDITIONS- MERCHANT? People who are minor and who are under guardianship : According to NTCC Article 13 ( TCC Article 15), 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, people who are minor and who are under guardianship 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

SPECIAL CONDITIONS- MERCHANT? People who are minor and who are under guardianship : who are under guardianship? Insanity (madness) Weakness of the mind Prodigality ( savurganlık), toxicomania (alcohol,narcotic), bad lifestyle, bad management Jail sentence (one and over one year) Demand

SPECIAL STUATIONS People barred from involving in commercial business Article 14/I of NTCC: The person who are deprived of or prohibited from dealing in commercial activities because of Their personal status Legal provision or Judgment The position/profession they occupy Hold liable (as merchant) accordingly, if they are engaged in commercial enterprise Kişisel durumu, yaptığı işin özelliği ya da icra ettiği meslek ve görevden dolayı hakkında kanun hükmü veya mahkeme kararı gereğince ticaret yapma yasağı bulunan kişiler, bu yasaklara rağmen ticaretle uğraşacak olurlarsa tacir sayılırlar (YTTK.m.14/I, ETTK m.16/I).

Under the provISIONS of ntcc, People deemed as merchant

Under the provISIONS of ntcc, People WHO ARE RESPONSIBLE as merchant Person who has not required conditions to be deemed as merchant but through NTCC accepted liable as merchant Liability from the obligations Doesn’t benefit from the rights given to merchant NTCC Article 12.3--- against third parties in good faith NTCC Article 13.1

DIFFERENCES - TO BE DEEMED AS MERCHANT AND TO BE RESPONSIBLE AS 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

Legal person merchant Commercial companies Collective company Commandit company Joint-stock company Limited (liability)company Co-operatives Associations which operate commercial enterprise Spiritual purpose Ör. To help poor people– opening a restaurant Non-profit Associations are not merchant- Kızılay operating Afyonkarahisar minarel water Non-profit Associations: operation more than 1 year, purpose of the Association, activities concerning the realistaion of the purpose, Decision of the Council of Ministers Foundations which operate commercial enterprise Non-profit Foundations are not merchant. (Foundations that spent %50 or more of its income to the affairs that has public duty. 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 Public Economic Enterprises and establishments belong to these Enterprises It is established with the decion of Council of Ministers Has legal personality Subject to private law provisions Under the Article 16.1 of NTCC, it is accepted that all Public Economic Enterprises are merchant Economic State Body (iktisadi devlet teşekkülü): Capital belongs to State + commercial activities in economic scope. Public economic units: capital belongs to Satate + establishment for the purpose of procuduction and marketing of goods or services that are monopoly (taking into condideration of the public interest) + these goods and services produced are accepted as privilege due to the statues of public service Other enterprises that are managed according to private law or operated in a commercial manner Eg: TÜBİTAK, Military mutual-aid assocation ( Ministry of National Defence) are accepted as merchant

questION Article 16/II of NTCC Municipality is running a bus enterprise? Who is merchant?

Loss of posITION OF BEING MERCHANT For real person merchant In which conditions: Closure of commercial enterprise To end operating the commercial enterprise under his name How? Notification to register of commerce + demand for the cancelation of the register To declare property When? Within 15 days

Loss of posITION OF BEING MERCHANT For legal person merchant In which conditions: Cessation of legal personality How? Completion of liquidation procedure cancelation of the register (publication)

Consequences of beING MERCHANT Regulated in Article 18- 23 of NTCC Subject to banckruptcy Registration to the register of commerce Registration to the Chambers Selection and usage of trade name Subject to presumption of commercial affair Subject to trade customs and usage To keep commercial books To behave as a prudent business man To claim fee and interest To claim discount in the fee and interest To pass an invoice Right of objection against invoice and confirmation letter within 8 days Form requirement for all notices and notification Benefit from the easiness concerning the usage of lien Subject to special provisions concerning sales and change of goods.

QUESTION Registration the register of commerce Registration to the Tax office Question: Are the statements mentioned above are necessary as the elements to be accepted as a merchant?

PROVISIONS OF NTCC B) Tacir I - Gerçek kişiler 1. Genel olarak MADDE 12- (1) Bir ticari işletmeyi, kısmen de olsa, kendi adına işleten kişiye tacir denir. (2) 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. (3) Bir ticari işletme açmış gibi, ister kendi adına, ister adi bir şirket veya her ne suretle olursa olsun hukuken var sayılmayan diğer bir şirket adına ortak sıfatıyla işlemlerde bulunan kimse, iyiniyetli üçüncü kişilere karşı tacir gibi sorumlu olur. 2. Küçük ve kısıtlılar MADDE 13- (1) Küçük ve kısıtlılara ait ticari işletmeyi bunların adına işleten yasal temsilci, tacir sayılmaz. Tacir sıfatı, temsil edilene aittir. Ancak, yasal temsilci ceza hükümlerinin uygulanması yönünden tacir gibi sorumlu olur. 3. Ticaret yapmaktan menedilenler MADDE 14- (1) Kişisel durumları ya da yaptığı işlerin niteliği nedeniyle yahut meslek ve görevleri dolayısıyla, kanundan veya bir yargı kararından doğan bir yasağa aykırı bir şekilde ya da başka bir kişinin veya resmî bir makamın iznine gerek olmasına rağmen izin veya onay almadan bir ticari işletmeyi işleten kişi de tacir sayılır. (2) Birinci fıkraya aykırı hareketin doğurduğu hukuki, cezai ve disipline ilişkin sorumluluk saklıdır. 4. Esnaf MADDE 15- (1) İster gezici olsun ister bir dükkânda veya bir sokağın belirli yerlerinde sabit bulunsun, ekonomik faaliyeti sermayesinden fazla bedenî çalışmasına dayanan ve geliri 11 inci maddenin ikinci fıkrası uyarınca çıkarılacak kararnamede gösterilen sınırı aşmayan ve sanat veya ticaretle uğraşan kişi esnaftır. Ancak, tacirlere özgü 20 ve 53 üncü maddeler ile Türk Medenî Kanununun 950 nci maddesinin ikinci fıkrası hükmü bunlara da uygulanır. II - Tüzel kişiler MADDE 16- (1) Ticaret şirketleriyle, amacına varmak için ticari bir işletme işleten vakıflar, dernekler ve kendi kuruluş kanunları gereğince özel hukuk hükümlerine göre yönetilmek veya ticari şekilde işletilmek üzere Devlet, il özel idaresi, belediye ve köy ile diğer kamu tüzel kişileri tarafından kurulan kurum ve kuruluşlar da tacir sayılırlar. (2) Devlet, il özel idaresi, belediye ve köy ile diğer kamu tüzel kişileri ile kamu yararına çalışan dernekler ve gelirinin yarısından fazlasını kamu görevi niteliğindeki işlere harcayan vakıflar, bir ticari işletmeyi, ister doğrudan doğruya ister kamu hukuku hükümlerine göre yönetilen ve işletilen bir tüzel kişi eliyle işletsinler, kendileri tacir sayılmazlar.

BEING SUBJECT TO BANKRUPTCY Merchant is subject to bankruptcy concerning any kind of debt Commercial dept Ordinary dept Who are subject to bankruptcy? A- Merchants Person deemed as merchant (NTCC article 12.2) Exception NTCC Article 12.3, Non-profit Associations shall not be subject to bankruptcy Person who are liable as merchant– Article 12.3 Under the provisions of private acts, person who are subject to banckruptcy Person who quits commercial activities (losing the status of merchant), shall be subject to bankruptcy within 1 year from the date of publication of the situation Partner of the collective and comandite company concerning company debt ( NTCC Article 238.2, 240, 304, 317)

QUESTION A Collective Company has a verbal articles of association. The partner of the A Collective Company, Ahmet enters into business dealings with Mehmet ( operating bakery) basing on the verbal articles of association. Please take into consideration of Article 212 of NTCC. Question: 1- Is A Collective Company merchant? 2- Who is responsible against Mehmet concerning this dealing? If Mehmet is not in good faith any changes in your answer? 3- Is Ahmet subject to bankrupcy? If yes Why?