In a lease agreement relationship in which both parties are merchants, the work performed because the parties are merchants is the Turkish Commercial Code 4.5 and 21. in accordance with its articles, commercial business is accepted, and commercial courts are responsible for any dispute with this jihad.
We’d like to share a few Supreme Court decisions on the issue:
Supreme Court 6. Law Department E. 2012/17480 K. T. 2013/629 22.01.2013: “…this provision of the law on public order should also apply to cases being considered. However, 6217 P.K. late. 2. according to the article, in workplace rents whose tenant is a merchant, TBK.nun 346. implementation of the article was delayed for eight years. Since the lessee is a workplace and, accordingly, the lessee is likely to be a merchant, a decision must be made in his apartment as a result, focusing on whether the defendant is a merchant…”
Supreme Court 6. Law Department E. 2008/11519 K. T. 2009/720 2.2.2009: “… the case relates to the request for the cancellation of the appeal against the enforcement proceedings for the collection of rent receivables. The dispute is settled at the point of whether an advance interest can be applied to the lease. In order for the advance interest to be requested, it is sufficient that the borrower is a merchant and the debt is related to his commercial enterprise. There is no such condition that the creditor is also a merchant. From the scope of the file, it is understood that the defendant tenant is a Joint Stock Company and also leases the place subject to the lawsuit for commercial purposes. Although the plaintiff demands the collection of the lease with advance interest, it is wrong to rule on legal interest…”
Law Department 2015/1262 E. , 2015/5259 K.
– VOTE AGAINST-
The case relates to a request for the cancellation of an appeal for compensation based on a workplace insurance policy. In this case, the court overturned the decision on the grounds that the damaged workplace was a commercial enterprise and that the defendants were maliki, the case was in the jurisdiction of the Commercial Court, the majority of the apartment overturned the decision on the grounds that the tenant of the workplace was the insured of the plaintiff, and the Maliki was the defendants, the dispute should be evaluated under the lease agreement, in which case the case was in the jurisdiction of the magistrate’s Court in accordance with Article 4/1-a of the HMK.
The majority of the department has grounds for a decision on non-duty related to cases filed before the entry into force of TCC 6102, but after the entry into force of HMK 6100. However, in terms of cases filed after the entry into force of TTC No. 6102, the task problem has been resolved for cases related to commercial enterprises. Because; 142 of the Constitution.considering the principle that the establishment, duties and powers of the courts will be regulated by law in accordance with the article, the duty relationship initially held in the HMK was included in the absolute duty area of the Commercial Courts from the point of view of commercial enterprises in the TTC No. 6102, which entered into force later. 3 of the TCC.all transactions and acts related to a commercial business are considered commercial business by Article 4 of the TTC.Article 1.in the last sentence of the paragraph, it is stated that “cases arising from remittances, Vedia and rights related to ideas and works of art that do not concern any commercial enterprise” are exceptions.
3 and 4 of the TCC.the court in which commercial business and commercial cases described in Articles 5 of the law will be heard.it is shown in the article as a Commercial Court of First Instance.
As can be seen, after HMK, the court that comes into force and is responsible for commercial cases involving commercial enterprises is the Commercial Courts of First Instance. 4 Of Law No. 6102.since the works shown as exceptions in the article do not include inter-merchant lease agreements, the regulation in Article 4/1-a of HMK, the previous law, cannot be the basis for a decision on decommissioning in disputes related to decommissioning.
In that case, I do not agree with the opinion of the court that the decision to vacate the office was upheld and that the majority of the Department had violated it in the opposite direction.