1. Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yasar Univesity- Lecture Notes Spring 2012 ozlem@dogerlihukuk.com

2. CONCEPT  Ordinary affairs– commercial affairs  Commercial affairs are different from ordinary affairs and subject to different rules

3. COMMERCIAL AFFAIRS A- NTCC Article 3  The ones which are regulated in the NTCC  The ones which are concerning the commercial enterprise B- NTCC Article 19- presumption  The debt of the merchant is commercial. (19.1)  Exception for real person merchants C- Affairs which is deemed commercial for one party (19/2) The contracts which are deemed as commercial for one party, shall be accepted as commercial for the counter party

4. The Affairs Regulated in NTCC The affairs regulated in the NTCC, shall be deemed as “commercial” whether it is related to commercial enterprise or not—absolute commercial affair Example Affairs concerning bill of exchange Affairs concerning unfair competition

5. Affairs concerning commercial enterprise  These are:  All prosedure and acts that take place in the other Acts (Laws-Codes) and that pertain to the commercial enterprise  All acts of the commercial enterprise  Example:  A merchant buys machines to use in the commercial enterprise  To rent an office to use as a pharmacy  To give power of attorney to a lawyer concerning a dispute derived from commercial enterprise.

6. Presumption of “commercial affair” Real Person Merchant Legal Person Merchant Two conditions are necessary to be deemed as ordinary Explicitly declaration of the counter party Ex. Purchasing washing machine for personal usage As the case may be Ex. Puchasing washing machine, (there is no explicitly declaration) but the delivery address is home address. Owner of the factory buys furniture for home usage. (owner of the factory is consumer) All of the affairs of the legal person merchant are commercial Ex. Company, rents a property for the employees’ usage.

7. What happens if the affair is accepted as commercial for one party and ordinary for the counter party? NTTC 19.2 Unless otherwise provided in the NTCC, any contract that has commercial character for one party shall be deemed as commercial for the counter party Ex. Sales contract between merchant and civil servant Conditions Contract Unless otherwise provided in the NTCC If Relationship between the parties derived from tort or unjust enrichment, this provision is not applicable

8. Question Merchant A buys furniture from merchant B basing on a sales contract Merchant A says that he buys this furniture for his home Question: Is this affair commercial for both parties?

9. CONSEQUENCES OF COMMERCIAL AFFAIRS  Validity of Presumption of solidarity (joint and several obligation) concerning the commercial affairs  Application of commercial interest  Freedom Principle in the drafting of commercial contracts  Legal limitation periods

10. Presumption of solidarity joint and several liability concerning the commercial affairs Article 7 of NTCC

11. INTEREST Concept of “interest” Definition: A fee which one party pays to the counter party (in return for deprivation of the usage of money for a specific period ), for the privilege of using borrowed money

12. TYPES OF INTEREST  Capital interest  Default interest  Simple interest  Compound interest  Legal interest  Conventional interest