Legal consequences of merchant status
The Turkish Commercial Code requires merchants to act as prudent business people. As a result, a penalty clause agreed by a merchant cannot later be reduced on the ground that it is excessive. Notices of default, termination or defects must be served by notary, registered letter, telegram or registered e-mail with a secure electronic signature (KEP); a termination sent through a messaging application may be difficult to prove.
Disputes relating to the businesses of both parties are heard by the commercial court of first instance (asliye ticaret mahkemesi).
Company formation and shareholders' agreements
The articles of association registered with the trade registry set out the trade name, capital and management structure. They rarely address the exit of a partner, the death of a partner or competing business activities. Foreign investors entering into a company with a Turkish partner should regulate these matters in a separate shareholders' agreement at the outset.
Once a dispute arises, the statutory remedies are narrower. In a joint stock company a general assembly resolution must be challenged within three months. In a limited company a partner may ask the court for permission to withdraw where there is just cause.
Limited liability does not always protect managers. Where tax and similar public debts cannot be collected from the company, the statutory representatives of the relevant period, and in limited companies the partners in proportion to their shares, may be held personally liable. The resignation of a manager should be registered and published in the trade registry gazette.
Unpaid invoices and mandatory mediation
For commercial claims for the payment of money, an application to a mediator (arabulucu) is compulsory before a lawsuit may be filed; failure to do so leads to dismissal. A settlement signed by the parties, their lawyers and the mediator is enforceable like a court judgment without a new lawsuit.
A merchant who receives an invoice and does not object within eight days is deemed to accept its contents. Between merchants, obvious defects in delivered goods must be notified within two days and defects discovered on inspection within eight days.
Cheques and promissory notes
A cheque payable in the place where it was issued must be presented within ten days, and within one month if the places differ; late presentation may result in the loss of recourse against endorsers. Claims based on a cheque are time-barred six months after the presentation period ends. A bounced cheque may support both fast-track enforcement and a criminal complaint by the holder. A debtor served with an enforcement order based on a bill of exchange has five days to object to the debt.
Hospitality businesses and foreign partners
Allotment contracts with tour operators, hotel lease or management agreements and seasonal supply contracts are common sources of dispute in Antalya. The method for end-of-season reconciliation and the allocation of cancellation costs should be agreed in writing. In contracts with foreign companies the parties may choose the governing law, and the jurisdiction or arbitration clause determines where disputes are resolved. For a contract review at the Konyaaltı office, the signed version, correspondence and trade registry details are required.