Turkey: Trust Liability In Terms Of Groups Of Companies

Introduction

Article 209 of Turkish Commercial Code No. 6102 ("TCC") has set forth obligations that are subject to damage caused by the trust and reputation of the parent company, as created with society and the consumer. Accordingly, "in the event that the reputation of the parent company and the group of companies reaches a certain level which provides trust to society or the consumer, the parent company is liable for the trust created by utilization of this reputation".

Conditions of Trust Liability

For the implementation of the liability of reliability under Article 209 of the TCC, the following conditions must be met:

  • the group of companies has created a reliability to society and the consumer through the reputation earned;
  • the plaintiff has expectations due to the reputation of the group of companies; and
  • the parent company supports, explicitly or implicitly, the connection of the group of companies.

Group of Companies

Implementation of the provision is subject to the existence of a group of companies in terms of Article 195 of the TCC. However, the parent of the group of companies is not necessarily required to be a company. Economic entities owned by real persons can also control a group of companies, and may be held liable within this scope1.

Reputation

Not each group of companies is subject to this provision. A group of companies that created trust with society or consumers are within such scope. Such evaluation should be conducted separately for each separate case2. The basis of orientation of the society and, in particular, orientation of the consumer, as well as increase of the market share of the affiliated company, is the trust and confidence that the company that is a member to such group of companies to act fairly, the information and tables and documents announced reflects the truth, the technology used is sufficient, and the quality is superior and everything is as it should be3.

Such reputation should be deemed established in the event that the group of companies is perceived reliable and qualified, an opinion that the products of the group of companies are highly qualified, as well, the undertakings are fulfilled, the financial situation of the company is stable, and the statements are authentic and reflect reality4.

Usage

Affiliated companies grant commercial benefit and customers through giving the name of their group of companies they are members of. The use of reputation is determined by established facts. The use of the name or logo of the group company is not required for usage. In the event that the standard provided by the affiliated companies does not match the parent's or group of companies' reputation, the parent company should be liable for the harmful consequences5. For this reason, the essential condition of liability is "use of reputation". In the event where the reputation is not benefitted from, "belonging" to the groups of companies does not cause liability6.

The requirement of using trust in relation to a particular business is also notable; in this manner, a private relation between the trusted and the trustful must be established7. The Court of Appeal also requires the use of trust as related to a particular job in order for liability to be borne:

"...if the liability of the subsidiary is caused by tortious act, then the trust liability of the parent company may not be relied upon. For the origination of such liability (trust obligation), a transaction-based contact is required."8

Liability

In the event that the persons that the Company abused its reputation through have suffered frustration and damage by mistaking that trust, such persons are entitled to initiate a compensation claim against the parent company. The scope of the liability consists of the damages caused by the expectation arising from the trust; otherwise, not all damages caused by the operations and decisions of the company that has benefited from the reputation, may be claimed against the parent company9.

The use of the name or logo of the group company is not required for the parent company to be held liable; in the event that the standard provided by the affiliated companies does not match the parent's or group of companies' reputation, the parent company should be liable for the harmful consequences as it has failed to object to the use of its name10.

The Court of Appeal also conditions its decisions upon the existence of the liability of the parent company to make statements and seeks to provide a certain level of confidence and established behaviors and explanations for their expectations:

"In the sense of trust liability, the source of liability is the parent company to create certain expectations before counterparts (i.e. the third party who trades with the affiliated company) through using the general confidence in the community but, however, does not meet the same expectation and, therefore, causes damage.

In other words, such provision protects the established trust, but not the abstract. Otherwise, the source of liability is not the trust of the society and the consumer of the group of companies and the group of companies' good faith or its qualified services.

Therefore, the uncollectible receivables of a subsidiary cannot be claimed from the parent company solely based on the membership of such subsidiary to a group of companies having a high-level reputation, unless the parent company makes statements and acts seeking to provide a certain level of confidence, and to create actual expectations."11

The parent company that had been sued under Article 209 of the TCC, may give notice of the lawsuit to the board of directors members and it is entitled recourse to board of directors members, if it has been ordered to give recompense in the court decision. Rights of shareholders and creditors of the company to file a liability action against board members are also reserved12.

Conclusion

In addition to the liability to shareholders and debtors of the parent companies in terms of Article 195 and their affiliates, they are also held liable to consumers. Through the abovementioned provision, Turkey became the first country that legalized the implementation of the Federal Court of Switzerland, trust liability, as decided by the Wibru/Swissair decision (BGE 120 II 331)13 .

Footnotes

1 Battal, Ahmet, "Şirketler Topluluğunda Güvenden Doğan Sorumluluk" p. 1, http://dspace.marmara.edu.tr/bitstream/handle/11424/2103/5000001563-5000000615-PB.pdf?sequence=1 (Access Date: 07.05.2018).

2 Preamble of TCC, p.143-144, https://www.tbmm.gov.tr/sirasayi/donem23/yil01/ss96.pdf (Access Date: 07.05.2018.)

3 Preamble, p.143-144.

4 Karahan, Sami, Şirketler Hukuku, 1. Edition, p. 154.

5 Pulaşlı, Hasan, Şirketler Hukuku Şerhi, Volume I, Ankara,2011, p. 322.

6 Preamble, p.143-144.

7 Tekinalp, Ünal, Sermaye Ortaklıklarının Yeni Hukuku, Updated 4th Edition, İstanbul, 2014, p. 675.

8 Prof. Dr. Oruç Hami ŞENER, Teorik ve Uygulamalı Ortaklıklar Hukuku Ders Kitabı, 2015/II, p. 191-197.

9 Poroy/Tekinalp/Çamoğlu, Ortaklıklar Hukuku I, Rewritten 13th Edition, İstanbul 2017, p. 795.

10 Pulaşlı, Hasan, Şirketler Hukuku Şerhi, Volume I, Ankara,2011, p. 322.

11Prof. Dr. Oruç Hami ŞENER, Teorik ve Uygulamalı Ortaklıklar Hukuku Ders Kitabı, 2015/II, p. 191-197.

12 Poroy/Tekinalp/Çamoğlu, p. 439.

13 Preamble, p.143-144.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions