Lex Commisoria Prohibition under Law on Pledges on Movable Property in Commercial Transactions 19 April 2018

Pledge right which provides a real security for receivables, has importance on the business and commercial life, as the pledgee feels safe with the pledge right and the pledger acts with the awareness of the consequences which he would face with in case of failing in payment at due date. Therefore, pledge right protects both the pledgee’s interests, since it is a legal concept which provides real security, and the pledgor, by also protecting the economic mobility in general.

The principle of security, which is the dominant notion in pledge right, provides pledgee to benefit from the value of the pledged good. With this regard, the relationship between the principle of security and lex commissoria prohibition is clarified, as the pledgee cannot request to transfer the ownership of the pledged good due to lex commissoria prohibition, but to benefit from the value of the pledged good due to the principle of security.

Lex commissoria prohibition has been regulated in different parts among our legislation, particularly in the Law of Property chapter of Turkish Civil Code. Accordingly, Law on commercial Enterprise Pledge (“LCEP”) numbered 1447 has also contained provisions in relation with lex commissoria prohibition. According to Article 14/1 of LCEP, it is stated that any contract which entitles the pledgee to request to transfer the ownership of the pledged commercial enterprise or any component of the pledged commercial enterprise shall deem invalid in case of non-payment of the debt. Therefore, the pledgee has no any other choice than benefiting from the value of the pledged goods through the request of foreclosure of pledged property, as contracts on transferring the ownership of the pledged goods shall be invalid within the scope of the lex commissoria prohibition. In other words, the pledgee could only request the payment through foreclosure of the pledged property, however, the request of transferring the ownership of the pledged goods is not possible.

On the contrary, Law on Pledge on Movable Property in Commercial Transactions (“LPMPC”) numbered 6750, which contains reformative provisions and repeal the provisions of LCEP, provides the pledgee with special rights in case of non-payment of the debt, as such rights makes an exception of the lex commissoria prohibition. According to Article 14 of LPMPC, in case of non-payment of the debt, the pledgee could request the transfer of the ownership of the pledged property. With this regard, if the pledger fails to fulfill its payment obligation on time, the pledgee could claim the transferring the ownership of the pledged property, instead of benefiting from the value of the pledged property through foreclosure.

In this scope, LPMPC, which establishes pledge registry, regulates the administrative and criminal responsibilities of both pledgee and pledger and contains exceptions of lex commissoria prohibition; provides a new and revised regime on commercial enterprise pledge.

Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/36112/ticari-islemlerde-tasinir-rehni-kanununda-lex-commisoria-yasagi

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