The Issue of the Ultra Vires Principle in Turkish Company Law: Has It Been Abolished or Just Hidden?
Abstract
The Turkish Code of Commerce (TCC) numbered 6102 contains numerous radical regulations as reforms in the Turkish company law. One of these provisions is the TCC A.125 which regulates the capacity of commercial companies to have rights and obligations. This article deals with the ultra vires principle which was transferred to the Continental European law system, including the Turkish legislation from the UK law system. The ultra vires principle had previously expired in the continental European legal system (in particular the Swiss Code of Obligations) which has inspired the TCC as a referring codification. As a result of these developments by the TCC A.125, in contrast to the ultra vires principle, commercial companies are allowed to be entitled and liable for all kinds of matters, except those which are human-specific. For this reason, companies’ legal personalities may have the capacity to have rights and obligations in matters other than their fields of operation. In other words, thanks to the TCC A.135, the ultra vires principle has been abandoned. It can be assumed that harmonization between the TCC and the EU directives has been achieved in the sense of abolishing the ultra vires principle. However, when several provisions randomly scattered in the TCC are taken into consideration, it is obviously seen that the legislator still accepts the field of operation issue as a criterion in about 20 articles. This leads to a question about the actual abolishment of the ultra vires principle. To put it briefly, the legislator’s choice in the new company law regime shows that the TCC has not abandoned the ultra vires principle completely, but it still retains its validity in a hidden way by only changing its form and scope.
Keywords:
Ultra vires principle, Turkish Code of Commerce, Turkish Company Law, Capacity to have rights and obligations, Commercial companiesReferences
Bahtiyar M., Ortaklıklar Hukuku, İstanbul 2017.
Bilgili F., Demirkapı E., Şirketler Hukuku, Bursa 2013.
French D., Mayson S., Ryan C., Company Law, 2010–2011, New York 2010.
Hacımahmutoğlu S., Anonim Ortaklıkta Ultra Vires Doktrini ve Ortaklığı Bağlamaya Yetkili Organın (Yönetim Kurulunun) Yetkilerinin Sınırlandırılamaması, Ankara 2016.
Hicks A., Goo S.H., Cases and Materials on Company Law, New York 2008.
Kendigelen A., Türk Ticaret Kanunu Değişiklikler, Yenilikler ve İlk Tespitler, İstanbul 2016.
Kershaw D., Company Law in Context Text and Materials, New York 2009.
Moroğlu, E., 6102 Sayılı Türk Ticaret Kanunu, Değerlendirme ve Öneriler, İstanbul 2012.
Pulaşlı H., Şirketler Hukuku Şerhi, Cilt 1, Ankara 2014.
Sealy L., Worthington S., Sealy’s Cases and Materials in Company Law, New York 2010.
Şener O.H., Teorik ve Uygulamalı Ortaklıklar Hukuku, Ders Kitabı, Ankara 2017.
Tekinalp Ü., Sermaye Ortaklıklarının Yeni Hukuku, İstanbul 2013.
Üçışık G., Çelik A., Anonim Ortaklıklar Hukuku, Cilt 1, Ankara 2013.
Wild C., Weinstein S., Smith and Keenan’s Company Law, Essex 2011.
Yıldız B., Ultra Vires İlkesinin Kaldırılmasının Ardından İşletme Konusu Unsuru ve Ticaret Şirketlerinin İşletme Konusu Dışındaki İşlemlerinin Hukuki Niteliği, Bankave Ticaret Hukuku Dergisi 2011, vol. 27, no. 3. Yıldız Ş., Limited Şirketler Hukuku, İstanbul 2007.
License
This work is licensed under a Creative Commons Attribution 4.0 International License.
The Author declares that the Work is original and does not infringe any personal or proprietary rights of third parties, and that She/He has unlimited rights to the Work which are the subject of the Agreement signed with the Publisher.
Author of the publication transfers to the Publisher the economic copyrights to the Work (article) submitted for publication, free of charge, without time and territorial restrictions in the following fields of use:
a) production, recording and reproduction of the copies of the Work by a specific technique, including printing, magnetic recording and digital technology;
b) marketing, lending or rental of the original or copies of the Work, and distribution in the form of open access, in accordance with the license Creative Commons Attribution 4.0 International (also known as CC BY), available at: https://creativecommons.org/licenses/by/4.0/legalcode.pl;
c) inclusing the Work in the composition of the collective work;
d) publishing on the website of the journal, public performance, exhibition, display, reproduction, broadcasting and rebroadcasting, and making the Work available to the public in such a way that everyone can have access to them in a place and at a time chosen by them;
e) uploading the Work in an electronic form to electronic platforms or other uploading of the Work in an electronic form to the Internet or other network.
The proprietary copyright to the Work is transferred to the Publisher free of charge upon signing the contract wit the Publisher.
