6750 sayılı Ticari İşlemlerde Taşınır Rehni Kanunu kapsamında rehne konu olabilecek varlıklar, rehnin kurulması, tescili ve paraya çevrilmesi ile mülga 1447 sayılı Kanunla karşılaştırma incelenmektedir.
1. Introduction
The pledge of movable assets in commercial transactions, unlike the general movable pledge, is regulated under a special statute, Law No. 6750 on the Pledge of Movable Assets in Commercial Transactions. The Law was published in the Official Gazette on 28.10.2016 and repealed the former Law No. 1447 on the Pledge of Commercial Enterprises. Significant differences have been established between the pledge right regulated under this Law and the movable pledge regulated under the Turkish Civil Code.
2. Assets Over Which a Pledge Right May Be Established Under Law No. 6750
The assets over which a pledge right may be established, and the scope of that pledge right once established, are set out in Law No. 6750. Pursuant to Article 5 of the Law, the following may be the subject of a pledge: receivables, multi-year fruit-bearing trees, rights subject to intellectual and industrial property, raw materials, animals, all kinds of earnings and revenues, all kinds of licences and permits that are not required to be registered in another registry and that do not constitute an administrative authorisation document, rental income, tenancy rights, machinery and equipment, vehicles, equipment, tools, work machines, electronic communication devices, agricultural products, trade name and/or business name, commercial or tradesman enterprises, commercial plates and commercial lines, commercial projects, wagons, movable assets held by third parties among those listed, rights, and co-ownership shares. At the same time, the same article provides that where the other movable assets listed in the first paragraph are sufficient to cover the debt, a pledge may not be established over the entirety of the commercial or tradesman enterprise. The purpose of this provision is to protect the commercial enterprise and to prevent its withdrawal from the market.
3. Scope of the Pledge Right Under Law No. 6750
Pursuant to the second paragraph of Article 5 of the Law, where the pledge right is to be established over the entirety of a commercial or tradesman enterprise, all assets allocated to the operation of the enterprise at the moment of the establishment of the pledge are deemed pledged. According to the same paragraph, where a specific group of movable assets in an enterprise is pledged as a whole, the pledge right is established over all assets within that group. The general provision governing scope is Article 7 of the Law. Pursuant to this provision, all future legal proceeds of the movable asset, such as interest and insurance, together with natural products and substitute goods, fall directly within the scope of the pledge together with the movable asset. The second paragraph of the same article provides that where a movable asset used in a production process is pledged, the pledge is deemed to be automatically established, in the same proportion and rank, over the receivable that will arise during and as a result of the production process, with the relevant procedures and principles left to regulation. The final paragraph of the article protects the good faith of a bona fide third party who does not know, or is not required to know, that the movable is pledged.
4. Formal Requirement for the Establishment of the Pledge
The establishment of a pledge of movable assets in commercial transactions first requires a pledge agreement. Article 4 of the Law provides a qualified formal requirement for this agreement. The pledge agreement may be drawn up electronically or in writing. A pledge agreement drawn up electronically must be approved by a secure electronic signature. A pledge agreement made in writing must be approved by a notary or signed in the presence of the officer of the Pledged Movable Assets Registry.
5. Registration with the Pledged Movable Assets Registry
After the pledge agreement has been drawn up in accordance with Law No. 6750, the agreement must be registered with the Pledged Movable Assets Registry. Pursuant to Articles 4, 8 and 9 of the Law, the establishment of the pledge right and its effect against third parties depend on this registration. Nevertheless, provisions concerning movable pledges that are required to be registered in special registries under other statutes are reserved.
6. Delivery of the Pledged Asset, Enforcement of the Pledge, the Prohibition of Lex Commissoria and the Exceptions Under Law No. 6750
The fundamental principle regarding movable pledges under Turkish law is, pursuant to Article 946 of the Turkish Civil Code (TCC), that the pledged asset is converted into money in order to satisfy the unpaid portion of the receivable. Article 949 of the TCC renders invalid any contractual provision providing that the ownership of the pledged movable passes to the creditor in the event of non-payment of the debt; this is known as the prohibition of lex commissoria. Furthermore, pursuant to Article 939 of the TCC, the establishment of a movable pledge, as a rule, requires the delivery of the pledged asset to the creditor. Law No. 6750 introduced significant exceptions to these principles. First, Article 1 of the Law made it possible to establish a possession-free movable pledge right. As regards the enforcement of the pledge, pursuant to subparagraph (a) of the first paragraph of Article 14 of the Law, the first-ranking creditor has the authority to request the transfer of ownership of the pledged movable from the enforcement office. This is an authority that the creditor may request from the enforcement office; it is not an agreement to be made with the debtor.
7. Comparison with the Former Legislation
Article 5 of Law No. 6750 broadened the scope of the pledge right compared with Article 3 of the repealed Law No. 1447. While Article 14 of Law No. 6750 introduced an exception to the prohibition of lex commissoria, this prohibition was applied without exception under Law No. 1447. In addition, Article 4 of Law No. 6750 made it possible for the pledge agreement to be concluded electronically; under Article 4 of Law No. 1447, the pledge agreement could only be drawn up in the presence of a notary.
8. Conclusion
Law No. 6750 on the Pledge of Movable Assets in Commercial Transactions has provided a modern system for securing commercial assets, broadened the scope of the commercial movable pledge and facilitated its establishment. Nevertheless, it is of great importance that pledge agreements are prepared in accordance with the formal requirements of the Law and that registration with the registry is carried out in accordance with the proper procedure. For further information on the pledge of movable assets in commercial transactions and the related legal processes, you may contact us at info@guzeloglu.legal.
Footnotes
1. Law on the Pledge of Movable Assets in Commercial Transactions, No. 6750, Official Gazette Date of Publication: 28.10.2016, Art. 5.
2. Law on the Pledge of Movable Assets in Commercial Transactions, Art. 5.
3. Law on the Pledge of Movable Assets in Commercial Transactions, Art. 6.
4. Law on the Pledge of Movable Assets in Commercial Transactions, Art. 7.
5. Law on the Pledge of Movable Assets in Commercial Transactions, Art. 4.
6. Law on the Pledge of Movable Assets in Commercial Transactions, Art. 4, Art. 8, Art. 9.
7. Turkish Civil Code, Art. 939, Art. 946, Art. 949.