COMMERCIAL LAW 2-sıkıştırıldı PDF

## CHAPTER II Private Law ### § III. COMMERCIAL LAW (Ticaret Hukuku-German. Commercerecht: Handelsrecht) * Ayhan-Çağlar. Ticari İşletme Hukuku. Genel Esaslar. Ank. 2017. * Bozer-Göle. Ticari İşletme Hukuku. Ank. 2015. * Çeker, M. Sigorta Hukuku. Adana 2016 * Poroy-Tekinalp-Çamoğlu-Ortaklıklar Huku...

## CHAPTER II Private Law ### § III. COMMERCIAL LAW (Ticaret Hukuku-German. Commercerecht: Handelsrecht) * Ayhan-Çağlar. Ticari İşletme Hukuku. Genel Esaslar. Ank. 2017. * Bozer-Göle. Ticari İşletme Hukuku. Ank. 2015. * Çeker, M. Sigorta Hukuku. Adana 2016 * Poroy-Tekinalp-Çamoğlu-Ortaklıklar Hukuku. İst. 2014. * Karahan, S. Ticari İşletme Hukuku Konya 2013. * Can, M. Deniz Ticaret Hukuku. Ank. 2003. * Pulaşlı, H. Yeni Şirketler Hukuku Genel Esaslar, Ank. 2012. * Pulaşlı, H. Kıymetli Evrak Hukukunun Esasları, Ankara 2011. * Öztan, F. Kıymetli Evrak Hukuku Ank. 1997 * Baştug Erdem. Ticari İşletme Hukuku. Ank. 1993. * Arkan, S. Ticari İşletme Hukuku. Ank. 1995. * Ansay, T. Bankacılar İçin Şirketler Hukuk Bilgisi. Ank. 1992. * Poroy-Tekinalp-Çamoğlu, Ortaklıklar ve Kooperatifi Hukuku. İst. 1993. * Poroy, R. Kıymetli Evrak Hukuku. İst. 1989. * Poroy, R. Ticari İşletme Hukuku İst. 1983. * Kınacıoğlu, N. Kıymetli Evrak Hukuku. Ank. 1993. * Karayalçın Y. Ticaret Hukuku. I. Giriş, Ticari İşletme. Ank. 1968. * Karayalçın, Y Ticaret Hukuku. Ticari Senetler (Kambiyo Senetleri) Ank. 1970. * Arslanlı, H. Ticari Senetler. İst. 1962. * Bozer, A. Sigorta Hukuku. Ank. 1965. * Bozer. A. Sigorta Hukuku (Genel Hükümler-Bazı Sigorta Türleri). Ank. 1986. * Kender-Çetingil Deniz Ticaret Hukuku. İst. 1992. * İzveren-Franko-Çalık, Deniz Ticaret Hukuku Ank. 1994. * Çağa, T. Deniz Ticaret Hukuku. I, II, III, İst. 1988-1990. * Kalpsüz, T. Deniz Ticareti Hukuku. Ank. 1971. * Yavaşça, C. Deniz Ticaret Hukuku. Deniz Kazaları ve Deniz Sigortaları. İst. 1993. * Tekil, F. Deniz Hukuku, İst. 1988. * Baumbach-Hopt- Handelsgesetzbuch. Münhen 2010 * Bökli, P. Aktienrech. Zürich. 1996. * Forstmoser, P. Schweizerisches Aktienrecht. Bd. 1. Zürich 1981. ### § 1. In General * Turkish Commercial Law is regulated mainly by the Turkish Commercial Code, which has been legislated at 2011 and having Nr. 6102. * It is composed of 1535 articles, which involve all kinds of commercial relations. * The first Turkish Commercial Code of date. 1956, and number 6762 was inspired from the German Law because it has been prepared for codification by the members of the German juripidents who have refuged in Turkey during the Second World War from Germany. * Amongst them especially Prof. Hirsch is to be mentioned here as a duty of faith. * **Turkish Commercial Code consists of five books**, which are reciprocally named as; * **Business Enterprises (Ticari İşletmeler)** * **Commercial Companies (Ticaret Şirketleri)** * **Commercial Papers (Kıymetli Evraklar)** * **Insurance (Sigorta)** * **the Maritime Law (Deniz Ticareti)** ### § 2. The Main Characteristics of Commercial Law 1. **Commercial Law is applicable to a special group of professionals called "merchant" (tacir).** * The scope of the law is limited with the business transactions, which are the legal acts constructed at least by one dealer. * If at least one of the parties of the transaction is a merchant, it is presumed that the transaction is a "commercial affair". * Because of this qualification, **Turkish Commercial Code is accepted as a specific code in comparison with Turkish Civil Code and Turkish Code of Obligations.** * This result effects the applicability order of the codes; * that is to say that the Turkish Commercial Code is to be applied in commercial transactions at the first hand; * if there is leisure in Turkish Commercial Code, than the general codes must be applied. 2. **Turkish Commercial Code depends upon the concept of *commercial freedom*.** * Most of the articles in Turkish Commercial Code are supplementary rules, which may be applied if the parties do not decide special conditions. * The limitations of the commercial freedom and rights are usually determined by provisions of general regulations, such as *Turkish Code of Obligations*. (eg. CO. Art. 27) 3. **Turkish Commercial Code**, although prevailed a wide scope of commercial freedom, accepts several restrictions in order to protect the rights of third parties, in case of abuse. * The abuse of the commercial freedom and rights is regulated under the concept of *unfair competition*. * The acts or actions, which are defined as *dishonest or fraudulent rivalry*, in trade and commerce, are prohibited by the code (T. Comm.C. Art. 54). * The specified cases of unfair competition are mentioned as the main examples in T. Comm. C. Art. 55. * That means that the judge is empowered to decide if there is abuse of commercial freedom or not, in case of opposition to fairness (TCC. Art. 2/II) according to his authority of discretion (TCC. Art. 4). * The *unfair competition*’ is to be decided especially and generally by the court if; * Somebody unlawfully is assumed to use the *trade name* (ticaret ünvanı) and the *trade mark* (marka) of another business enterprise, * Somebody urges the employees, working in a competent business enterprises to leave his job and work in his own enterprise, by offering money or other promisses, * Somebody *misrepresents* about the financial or commercial situation of the rival enterprise, * Somebody *discloses* the commercial secrets of the enterprise, which has been acknowledged during his employment period or has been unlawfully gathered by him, * Somebody gives *untrue statement* about the professional honor, capacity and the productions or the certificates and client relations of the rival enterprise, * Somebody gives *untrue statement* about his own qualifications, such as his professional skill, certificates and his financial position or productions, 4. **Turkish Commercial Code protects the lawful benefits of persons, who has acted with care in his commercial relations.** * **Only a merchant who is cautious, has the privilege to be protected by law.** * The one, who acts carelessly is out of the protective scope of the code. * For example the title deeds are the commercial papers which are not bound to the legal ground, upon which they have been based. * Even if the legal ground is unlawful, the amount of money remarked in the paper must be paid by the *indorser* (ciranta) who is entitled by the duty of care before assignment. 5. **Formal Conditions relating to constitute the commercial acts and transactions are regulated by the compulsory articles of the Turkish Commercial Code.** * In other words the main principle of *formal freedom of the Law of Obligations* (TCO. Art. 12) is rejected in Turkish Commercial Law. * Any commercial transaction is valid if they are to the lawfully prescribed statutory formalities, compromised (T. Comm C. Art. 672, 777, 781). * For example, promissory note (bono), cheque (çek) and bill of exchange (poliçe) must be drafted according to the statutory rules. * The constructive elements of commercial papers are determined by the Articles, 671, 776 and 780 of Turkish Commercial Code. 6. **The legal consequenses related to the violation of the commercial obligations have more serious results than the liability derived from other legal relationships.** * For example, the interest rate applied to the commercial depts in case of default may be decided freely by the parties (T. Comm. C. Art. 8/1) even if it is not laid down as condition in the contract (T. Comm. C. Art. 387/1), which is higher than the rate of simple legal transactions. 7. **The legal conflicts about commercial relations are sued in Commercial Courts which are civil courts, specially authorised (having competence) to try commercial disputes.** * The other civil conflicts, based upon simple obligations, are solved by the civil courts. 8. **The conditions of the commercial contracts**, although determined by the Turkish Code of Obligations, differ from the relationship between the parties, presumed to be "non-commercial affair" * For example; notice of defect (ayıp ihbarı) of the saled goods must be made as soon as it has been possible to examine and observe the defects (TCO. Art. 223). * But in commercial sales, the purchaser must notify the easily observable defects within two days and the concealed defects within 8 days (T. Comm. C. Art. 23/c). ### § 3. Business Enterprise (Ticari İşletme - German: Handelsbetrieb) #### 1. In General * **Business enterprises are enterprises, constructed by real or legal persons and have commercial organisation and accounts for financial and other commercial purposes.** * **Busines enterprises are different from tradesman enterprises.** * Tradesman enterprises (esnaf işletmesi) are administered by the tradesman who survives his life basically through his physical work rather than using economical power, namely capital (T. Comm. C. Art. 15). * For example, shoemaker, tailor etc. has the characteristics of tradesman. * But on the other hand business enterprises are managed by merchants (tacir). * **The person, who manages the enterprise at least partly for his benefit (in his name) is called as merchant (T. Comm. C. Art. 12).** * In other words, merchant is someone who undertakes partly ore wholy the responsibility of an enterprise in organisation, accounts and commercial profit. * **The business enterprises consist of business offices and factories and other enterprises, possessing the qualifications of business enterprises.** * **The business enterprises are defined in the 11. Articles of the Turkish Commercial Code.** * For example, the enterprises which are constituted, having goal to sell and hire movables, to sell or to obligate to sell the title deeds, every kind of produc- tion and construction affairs, mining, pressing, book storing, publication, ad- vertisement and information, theatre, cinema, hotel, restaurant enterprises, private school, hospital and public sale offices, warehouses (umumi mağaza) and other stores, exchange and cambium affairs, banking, goldsmith and in- surancy, air, sea and highway transportation, lake and river transportation of goods and passangers, water, gas and electricity delivery, telecommunication by telephone and radio, commercial agency, brokerage (tellalık) and commissionery and the other investment affairs are all business enterprises. * Factories are olso business enterprises where new and valuable productions are manufactured by the way of using machines and technical devices. * **Business enterprises are the permenant organisations, having goal of profit and sufficient financial capacity in amount much more than the capital of tradesman enterprises and determine the commercial way of work and or- ganisation for economical activities.** #### 2. The legal Consequences of Business Enterprises and Merchant * a. **Every business enterprise should have a tradenames**. * Tradename is a nominal value, under which a person, firm or corporation carries on business or trade. * Business enterprises have also the right to give a distinctive mark or amblem to the manufactured or produced goods, so that they may be identified in the market, which is called *trade-mark* (marka) * b. **Business enterprises and merchants are bound to bankruptcy (iflas).** * If the entire property and assets of a business enterprise, acting under a statute of merchant is insufficient to pay its depts, the insolvency of the merchant may be decided by the court. * They may also announce *konkordato*; which is an agreement, made upon rational consideration between an insolvent deptor and his creditors where by the creditors agree to accept a divident less than the whole amount of their claims. * **Law of Execution and Bankruptcy deals with those subjects.** * c. **The communication inter merchants,** in order to render the other party (deptor or creditor) to be in default (omission) or to give notice of cancellation or recourse from an agreement, must be made by *notary deed, telegraph, reversable letter or e-mail with registered electronic signature* (T. Comm. C. Art. 18/3). * d. **Turkish Commercial Code accepts a trade presumption for the depts of the merchants (T. Comm. C. Art 19).** * The depts of a merchant is legaly presumed to be commercial in principle unless he declares at the date of constructing the legal transaction that, it is not related to his business enterprise or it is obviously hard to accept its commercial qualification due to the circumstances. * For example a fur bought for his wife by the merchant is not related to the commercial enterprise and thus not accepted as commercial purchase. * If the legal transaction has a commercial meaning and value and the other commercial qualifications do exist at least for one of the parties of the transaction, it has the same effect for the other party and is assumed to be commercial (C. Comm. C. Art. 19/II). * e. **Merchants have right and duty to give or to request invoice (fatura) for the goods sold or sent to him.** * **Invoice is a list submitted or sent to a purchaser or to one who is the beneficiary of an obligation, including the items together with the prices and charges.** * If one, to whom the invoice is sabmitted does not oppose to the content of the invoice within 8 days, is supposed to be accepted. * After the agreements made by means of expressing the assents by words through telephone or telegraph, a letter of confirmation (teyit mektubu) may be requested by the merchant and it is presumed to be consented unless it has been refused within 8 days (Comm.C.Art. 21/3). * f. **Every merchant must keep commercial books, in which systematic re- cords of business transactions are written in order to show the economical and financial situation of his business enterprise.** * If the dealer is whether a legal person or a private person a book in which the daily transactions are recorded (yevmiye defteri), general ledger (defteri kebir), inventory book (envanter defteri) share book (pay defteri) and decision book (karar defteri) are to be kept. (T. Comm. C. Art. 64). * The commercial books must be protected for 10 years (T. Comm. C. Art. 82/5). * The books, designed compatible with the statutory rules and confirming each other, are accepted as evidence for the benefit of his owner (CC. Pr. Art. 222/2). * In negative way to say, commercial books are evidences agains the party who has not kept the reguired books or has books contrary to laws or did not submit them to court, if wanted (T. Comm. C.Art. 83). * g. **A Merchant has to keep his commercial books open to public, so that they will be suitable to every kind of supervision including his financial situation (T. Comm. C. Art. 64).** * **A Merchant must act as a cautious businessmann in his commercial activities (T. Comm. C. Art. 18/2), otherwise he will not be protected by law.** ### § 4. Companies (Şirketler; German: Aktiengesellchafts) #### 1. In General * According to Turkish Commercial Code, there are four different kinds of companies; **unlimited company, commandite company, joint stock corporation, limited company.** * **Unlimited company (kollektif şirket) is a collective partnership.** * They are usually composed of by a few number of real persons, each of who is liable for the entire depts of the company with his entire assets. (T. Comm. C. Art. 211) * **Commandite company (komandit şirket) is a partnership in commendam.** * There are two groups of partners in commandite company. * **The commanditaire (komandite ortak)** is the active partners, whose liability for the depts is unlimited. * **The partner in commendite (komanditer ortak)** is the sleeping (silent) partner of the company and is liable for the depts of the company to the extent of the capital, offered by him. (T. Comm. C. Art. 304) * **Joint stock corporation (anonim şirket)** is a company, which has a trade name and a specific capital divided into shares and in which the partner's li- ability for depts is limited by the capital replaced. (T. Comm. C. Art. 329) * In order to form a joint stock corporation only one or more partner is needed (T. Comm. C. Art. 338/1). * **Limited company (limited şirket) is a commercial partnership, which can be legally formed by (real or legal person) partners who have limited liability for the depts of the company within their capital investments (T. Comm. C. Art. 573).** * Number of partners of a limited company can not be more than fifty (T. Comm. C. Art. 574/1). * Also a partnership having only one partner may be constructed as limited company (T. Comm. C. Art. 574/2). * **Cooperative company (kooperatif şirket)** although not regulated by the Turkish Commercial Code, is a commercial corporation which is generally constructed by at least seven partners in order to get hold of a common and indirect economical purpose and interest. * Cooperatives for production and comsumption or constructing houses are the most usual sort of cooperative companies, met in Turkey. #### 2. Classification of Companies * **A. Personal Companies (General partnerships: şahıs şirketleri)** * Companies may be divided into two groups according to the responsi- bilities of the partners for the dept of the companies. * The first group involves personal companies which are constructed by the partners, having strong (near) relationship between them and who usually work in the company. * The legal future of those kind of companies depends on the skill of the partners, who trust each other. * They may be also called as "general partnerships". * Personal companies are composed of a few number of partners in comparison with the second group of companies, named "capital companies". * The partners are personaly liable for the depts of the company, that means that they are not only liable with the share they have allocated, but are liable with all of their entire property which is out of his capital in the company. * In other words their liability is not limited by their capitals. * Their whole estate may be sued for the dept of the company. * Ordinary partnership (TCO. Art. 620-645) and unlimited companies are personal companies. * **a. Ordinary partnership (Adi ortaklık), is one of the most widely known type of personal companies.** * Any trade corporation, which do not accomply with the other types of companies prescribed by the Turkish Commercial Code, is bound to the rules of ordinary partnership (TCO. Art. 620). * A number of persons, united for carrying on any kind of business enterprise jointly and without being incorporated, may constitute an ordinary partnership. * Ordinary partnership does not have legal personality so that it is not represented by organs; every partner has the right to represent the partnership. * Every coordinated commercial relationship, undertaken by at least two persons who has consented to join their capitals (goods, money) or skill is handled due to the provisions of ordinary partnership. * The partners of the ordinary partnership have the co-ownership in the property belonging to partnership (TCO. Art. 638). * They manage the legal relations and the property all together. * But if contrary has been agreed, their rights originated from the ownership, may be used seperately. * The partners of an ordinary partnership are jointly (solidarily) liable against third parties unless ordinary partnership agrement provides another responsibility type. * Ordinary partnership is terminated by the consent of all of the partners or by the lapse of the appointed date, the realisation of the appointed purpose or the impossibility of the practicable purpose and lastly by means of the court decision because of justified conditions (TCO. Art. 639). * **b. Unlimited companies (Kollektif şirket)** are one of the special kind of personal companies where the partners are more important than the capital, invested by them. * They may be also called as "co-partnerships." * Those kind of companies involve double qualifications about companies; qualifications of personal companies and of capital (trade) companies. * For example, they have legal personality, that is the main characteristics of the capital companies. * On the other hand the partners of co-partnership have unlimited and successive (joint) liability for the dept of the company just like as in personal companies. * Unlimited companies are constituted by real person partners. * The agreement of partnership about unlimited company is bound to written form, but the signatures of the partners must be certified by notary (T. Comm, C. Art. 212). * This kind of companies have legal personalities which are represented by their organs. * The legal personality of companies are acquired after they have been registered in the trade register. * Unlimited companies have certainly a tradename, which indicates the subject matter of the trade. * The responsibility of the partners for the company depts is at the second degree, which comes after the company. * If the disability of the company has been seen obvious to execute its depts, the partners may be sued. * Their liability is unlimited. * Their entire property may be opposed to civil liability for the depts of the company. * They have also joint liability (solidary liability-müteselsil sorumluluk) against third persons. * **B. Capital Companies** (Stock Corporations = Sermaye Şirketleri) * **Capital companies are directed towards different purposes in comparison with the personal companies.** * They are organised enterprises, where by the capital is important in construction. * The number of partners and the individual qualifications of them are not important in capital companies. * Even it is not necessary for the partners to know each other personaly, which is actually almost impossible. * They are absolutely trade companies. * **Legal personality of the capital company is liable for the depts of the company at the first degree.** * If the company is unable to execute its obligations, the partners may be sued only within the limits of their capital shares. * In other words, their liability is at the second degree and is limited with the capital investment of each partner. * Other properties of the partners are free from the liability, because of the company depts. * **a. Commandite Company (T. Comm. C. Art. 304-328)** * Commandite companies contain some of the qualifications of both of the personal and the capital companies; * for that reason they may be defined as a kind of "compound companies". * Further to say, there are two groups of partners in commandite company, who represent this different aspects of the association. * **aa. The partners in commandite (komanditer ortak)** * They may be real or legal persons. * Their responsability is limited with the amount of the capital, they have invested in the company if it is determined in the corporate charter or decided by unanimity (oybirliği) of votes in general meeting (T. Comm. C. Art. 319). * The partnership may be acquired by the way of succession (T. Comm. C. Art. 255) and may be transferred to third persons with the consent of the other partners (T. Comm. C. Art. 315). * If they don't give consent Article 632 of the Turkish Code of Obligations is to be applied; new partners may be accepted by the consensus of them. * **bb. The partners in commanditaire (komandite ortak)** * They are composed of only real persons. * Their liability for the depts of company is unlimited. * Their entire property may be opposable to the request of the creditors of the partnership. * The right of representation and management of the company may be used only by the commanditaires (T. Comm. C. Art. 318). * The liability of the partners are at the second degree, because the principal responsibility for thedepts belongs to the legal personality of the partnership. * **b. Joint Stock Company (T. Comm. C. Art. 329-560)** * **Joint stock corporations are the typical kind of capital companies.** * It is defined by the Turkish Commercial Code as a company; which has a specific capital divided into shares and where by the partners are liable for its depts only by the capital submitted to the company (T. Comm. C. Art. 329). * In other words the responsability of the partners is limited with the capital shares, they have stipulated. * **Joint stock corporations may be constructed with a minimum amount of 100.000 TL capital by any purpose or subject of trade which are not prohibited by law (T. Comm. C. Art. 331).** * Banks and insurance companies must be established only as joint stock corporations. * **Joint stock corporations acquire legal personality by the registration in trade register after taking the permission of Ministry of Customs and Trade (T. Comm. C. Art. 333).** * **For the construction of joint stock corporations only one or more than one constructor partner is needed (T. Comm. C. Art. 338/1).** * Constructor partner may be a real person or legal person (T. Comm. C. Art. 337). * A joint stock corporation having only one partner is called as "one man company" (in german: ein mann Gesellschaft) * **Joint stock Corporations may be founded in two ways; the instantaneous construction (ani kuruluş) is realized by the way of paying the entire capital shares by the partners.** * The other way of construction is the gradual construction (tedrici kuruluş) in which the amount of capital out of the paid sum, is undertaken by the common people. * **The management and the representation of the partnership is made by the "board of management" (yönetim kurulu).** * The authority of the board may be revolved at least to one of the members of the board. * The managers are voted maximumly for 3 years (T. Comm. C. Art. 362). * The supervision of the partnership is made by a "controller" (denetçi) elected by the general board of the company (T. Comm. C. Art. 399). * **The capital of the partnership may be divided into shares.** * Every partner may hold more than one share. * The shares are shown by certificate of stocks (hisse senedi) which are authenticated in name (nama yazılı) or payable to bearer (hamile yazılı) or in promissory order (emre yazılı). * The joint stock companies may also give out bonds (tahvil) in order to promote capital. * Bonds are the certificates of dept, placing on the market by the corporation for the purpose of owing money. * **The joint stock companies are the only suitable type of partnership for enterprises which need great amount of capital.** * Sometimes even the financial capacity of one company may not be sufficient for the organised trade and a coalision of several joint stock companies is to be made, called "holding company". * **A holding company is a corporation, which conserves shares of stock, pertaining to one or more corporations.** * The companies, which are under the framework of the holding company, have different subjects of work and different accounts but similar and common profits. * **c. Limited Liability Company (Limited şirket)** (T. Comm. C. Art. 573-644) * **Limited companies are set up with a definite capital (minimum 10.000 TL) and under a trade name by one or more partners, who may be real or legal persons and whose liability is limited with the capital promised to be invested (T. Comm. C. An. 573).** * Limited companies are not entitled to issue stock certificates. * Insurance companies can not be established as limited liability companies. * **All of the partners have power and duty to represent and manage the company, unless the contrary has been determined (T. Comm. C. Art. 623) by the general board of the company or in the charter of partnership (şirket sözleşmesi).** * This authorities may be given to one or more then one partners named "director" or to all of the partners or to third parties. ### § 5. Commercial Papers (T. Comm. C. Art. 645-849) (Kıymetli Evrak; German: Wertpapiere) * **Commercial papers are bills, having monetary value.** * The Turkish Commercial Code defines commercial papers in article 645; as "the bills in which rights are involved and that can not be claimed and transferred to someone else unless it has been delivered to him". * The right and the bill itself is so strongly stricked with each other that they can not be demanded separately from each other. * In other words the right, concealed in the bill and bill itself coincide with each other. * The rights pass to third persons by delivery (submission) of the bill to the acquiring party. * **The delivery of the commercial paper is called indorsement (ciro).** * The indorser is the beneficiary of the bill, who is called girante (ciranta). * Indorsement is a legal transaction which gives two powers; * the first is a power given to the new beneficiary to receive the right (to collect the amount deprived in the bill) * and the other is the right given to the deptor to pay the bill sum. * **The triple relationship between the parties of indorsement may be drawn in diagram as the following:**  * **Indorsement may be divided into three types, according to the purpose (ground) determined by the indorser;** * **a. If the indorser intends to transfer the content (right) of the commercial paper to the third persons depending upon several legal grounds (to pay a dept, donation etc), it is called "transferring indorsement" (temlik cirosu).** * **b. If the indorser aims to collect the sum of the bill and empowers some one to claim the sum on behalf of himself (indorser), the indorsement is called as "indorsement for collection" (tahsil cirosu).** * The content of the bill items is collected and paid to the indorser by the third person (for example a bank may sue and collect the sum for the benefit of the indorser if the bill has been indorsed for collection). * **c. The indorsement may determine a mortgage (rehin cirosu).** * The deptor may sign and deliver the bill to the creditor in order to guaranty his dept to him. * If he does not insolve his dept, the beneficiary (creditor) has the right of collection the bill sum. * **The indorsement must be made unconditionally and entirely.** * **Because partial indorsement is prohibited as well as the conditional ones (Comm. C. Art. 682).** * **The guaranty given to commercial paper is called "aval."** * Avalist is the guarantor of the bill by the way of signing the bill. * He is liable for the sum of the bond, in case of the inexecution of the dept. ### § 6. Maritime Law (Deniz Ticaret Hukuku; German; Seerecht) (T. Comm. C. Art. 931-1401) #### 1. In General * **The fifth book of the Turkish Commercial Code is about Maritime Law, which relates to trade and navigation at sea and legal transactions about ships and shipping.** * It also involves regulations about the transport of persons and property by seaways and all other marine affairs including maritime accidents. * In other words, Maritime Law contains the rules of maritime commerce. * **Maritime Law has been effected a great deal, by the marine customs, in comparison with the other branches of Private Law.** * Because the ships, which are usually far away from their country whose flag they carry, may need international customs, which derive their application authority from the common consent of the sea men, to whom the legislative authority can not be applied. * **Maritime Law is also in relation with the International Public Law and International Private Law, much more than the other branches of law.** * The lawful or unlawful actions (sea accidents) of ships, sailing in the territorial waters of foreign countries usually cause international conflicts. * For example, the collision of two ships having foreign flags in another foreign sea must be handled according to the rules of Private International Law. #### 2. Ship * **Ship is defined in Art. 931 of the Turkish Commercial Code, in simple words. ** * Ship is any hull, which is not too small and which of its use is possible by its movements in sea in order to compromise the assigned purpose. * **Ships and their voyages are managed by the harbour at where they are registered. Ships, used for commercial purposes are called as trade-ships.** * **Because of its nature ship is concerned as movable property** but because of their value, they are registered to a special registry, (Turkish Ship Registry) in order to be bound to Turkish Commercial Code (T. Comm. C. Art. 996). * Ship registry has been established for the purpose of evidencing the transfer of possession and ownership or other real rights (for example ship mortgage) (Comm. C. Art. 1013, 1014). * The current rules of land registry are applied with an analogy to ships in case of silence of the law on a particular matter in Turkish Commercial Code. * **The unregistered ships are in opposite subject to the rules of movable property (Comm. C. Art. 997).** #### 3. Shipowner (Donatan) * **Shipowner is someone who uses his ship or ship enterprise in maritime commerce**. * Even having ownership is not an essential element of being a shipowner; * a person, possessing the ship for his own benefit or as a captain, is presumed to be the a shipowner in the relationship with the third persons (T. Comm. C. Art. 1061). * **A ship may belong to more than one person.** * **An association of two or more persons, who jointly own one or more ship