Commercial Lease Agreements
In the lease agreement relationship where both parties are merchants, since the parties are merchants, the work performed is considered as commercial work in accordance with Articles 4, 5 and 21 of the Turkish Commercial Code, and therefore, commercial courts will be in charge in any dispute.
We would like to share a few Court of Cassation decisions on the subject:
6th Civil Chamber of the Court of Cassation E. 2012/17480 K. 2013/629 T. 22.01.2013: “…This provision of the law regarding public order should also be applied to the pending cases. However, pursuant to Article 2 of the 6217 S.K. late. 2, the application of Article 346 of the TCO has been postponed for eight years in workplace leases where the lessee is a merchant. Since the leased premises is a workplace and accordingly, there is a possibility that the lessee is a merchant, it is necessary to consider whether the defendant is a merchant or not and a decision should be made accordingly…”
6th Civil Chamber of the Court of Cassation E. 2008/11519 K. 2009/720 T. 2.2.2009: “… The case concerns the request for cancellation of the objection to the enforcement proceeding for the collection of the rent receivable. The dispute centers on whether advance interest can be applied to the rent receivable. In order to request advance interest, it is sufficient for the debtor to be a merchant and the debt to be related to his commercial enterprise. There is no condition that the creditor must also be a merchant. From the scope of the file, it is understood that the defendant lessee is a joint stock company and rented the place subject to the lawsuit for commercial purposes. Although the plaintiff requested the collection of the rent receivable with advance interest, it is erroneous to award legal interest…”
Civil Chamber 2015/1262 E. , 2015/5259 K.
-VOTE AGAINST-
The lawsuit is related to the cancellation of the objection for subrogated compensation based on the workplace insurance policy. Court ruled that the case is within the jurisdiction of the commercial court on the grounds that the damaged workplace is a commercial enterprise and the defendants are the owners of this workplace, the majority of the Chamber reversed the decision on the grounds that the tenant of the workplace is the insured of the plaintiff and the owner of the workplace is the defendants, the dispute should be evaluated within the scope of the lease agreement, in this case, the case falls within the jurisdiction of the Civil Court of Peace in accordance with Article 4/1-a of the CCP.
The reasoning of the majority of the Chamber for the decision of non-jurisdiction regarding the cases filed before the enforcement of the TCC No. 6102, but after the enforcement of the CCP No. 6100 is appropriate. However, in terms of the cases filed after the enforcement of the TCC No. 6102, the question of jurisdiction has been resolved for the cases related to commercial enterprises. This is because; considering the principle that the establishment, duties and powers of the courts shall be regulated by law pursuant to Article 142 of the Constitution, the jurisdiction relationship, which was initially regulated in the CCP, has been included in the absolute jurisdiction of the Commercial Courts in terms of commercial enterprises in the TCC No. 6102, which entered into force later.
Pursuant to Article 3 of the TCC, all transactions and acts concerning the commercial enterprise are deemed as commercial business, and pursuant to paragraph 1 of Article 4 of the TCC, civil lawsuits and non-contentious judicial proceedings arising out of matters related to the commercial enterprise of both parties are deemed as commercial cases, and the last sentence of the aforementioned paragraph states that “however, lawsuits arising out of transfer, trustee and rights related to intellectual and artistic works that do not concern any commercial enterprise” are exempt from this.
The court where the commercial business and commercial lawsuits described in Articles 3 and 4 of the TCC will be heard is indicated as the Commercial Court of First Instance in Article 5 of the law.
As can be seen, the Commercial Courts of First Instance are the competent court for the commercial lawsuits concerning the commercial enterprise, which came into force after the CCP. Since Article 4 of the Law No. 6102 does not include lease agreements between merchants among the works shown as exceptions in Article 4 of the Law No. 6102, the regulation in Article 4/1-a of the previous law, the CCP, cannot be the basis for the decision of lack of jurisdiction in disputes related to commercial enterprise.
Therefore, with the opinion that the court’s decision of non-jurisdiction should be upheld, I disagree with the reasoning of the majority of the Chamber to the contrary.
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