Since both parties are merchants in a lease agreement relationship, the work done is considered commercial work in accordance with Articles 4,5 and 21 of the Turkish Commercial Code, and in this respect, commercial courts are in charge of any dispute.
We would like to share a few Supreme Court decisions on the subject:
6th Civil Chamber of the Supreme Court “…This provision of the law regarding public order should also be applied to pending cases. However, the law numbered 6217. Pursuant to article 2 of the temporary article, the implementation of article 346 of the Turkish Code of Obligations has been postponed for eight years in the leases of workplaces whose tenants are merchants. Since the rented is a workplace and accordingly the tenant is likely to be a merchant, a decision should be made in the office of the conclusion by focusing on whether the defendant is a merchant.
The 6th Civil Chamber of the Court of Cassation The case is related to the request for annulment of the objection to the execution proceeding for the collection of the rent receivable. The dispute is gathered at the point of whether advance interest can be applied to the rent receivable. In order for the advance interest to be requested, it is sufficient that the debtor is a merchant and the debt is related to the commercial enterprise. There is no condition that the creditor is also a merchant. It is understood from the scope of the file that the defendant tenant is a joint stock company and that he 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 wrong to rule on the legal interest…”
Law Office 2015/1262 E. , 2015/5259 K.
-NEGATIVE VOTE-
The case is about the cancellation of the objection for recourse compensation based on the workplace insurance policy. The court gave a decision of non-jurisdiction on the grounds that the damaged workplace is a commercial enterprise and the defendants are the owner of this workplace, pointing out that the case is within the jurisdiction of the commercial court. Pursuant to Article 4/1-a, it reversed the decision on the grounds that it was under the jurisdiction of the Civil Court of Peace.
The reason for the decision of the majority of the Chamber of non-jurisdiction regarding the lawsuits filed before the Turkish Commercial Code No. 6102 came into force but after the Code of Civil Procedure No. 6100 is valid. However, in terms of lawsuits filed after the Turkish Commercial Code No. 6102 came into force, the problem of duty has been resolved for lawsuits related to commercial enterprises. For; Considering the principle that the establishment, duties and powers of the courts will be regulated by law in accordance with Article 142 of the Constitution, the duty relationship, which was initially regulated by the Law of Civil Procedure, and then the Turkish Commercial Code No. 6102, which came into force, was taken into the absolute duty of the Commercial Courts in terms of commercial enterprises. With the 3rd article of the Turkish Commercial Code, all transactions and acts concerning the commercial enterprise are considered commercial business, and with the 1st paragraph of the 4th article of the Turkish Commercial Code, the civil lawsuits and uncontested legal actions arising from the matters related to the commercial enterprise of both parties are considered commercial lawsuits. In the last sentence, it is stated that “the cases arising from the rights related to transfers, deposits and intellectual and artistic works that do not concern any commercial enterprise” are exempt from this.
The court where commercial business and commercial cases will be heard, as explained in Articles 3 and 4 of the Turkish Commercial Code, is indicated as the Commercial Court of First Instance in Article 5 of the law.
As can be seen, the commercial court in charge of commercial cases that came into force after the Code of Civil Procedure and concerns the commercial enterprise is the Commercial Courts of First Instance. Since rental agreements between merchants are not included among the works listed as an exception in Article 4 of Law No. 6102, the regulation in Article 4/1-a of the previous law, HMK, cannot form a basis for the decision of non-jurisdiction in disputes related to commercial enterprise.
In that case, I do not agree with the reasoning of the majority of the Chamber to reverse the decision of the court’s non-jurisdiction.
