Since both parties are merchants in the lease contract relationship, the work done is considered commercial work in accordance with Articles 4,5 and 21 of the Turkish Commercial Code, and commercial courts are in charge in any dispute in this regard.
We would like to share a few Supreme Court decisions on the subject:
6th Civil Chamber of the Supreme Court of Appeals E. 2012/17480 K. 2013/629 T. 22.01.2013: “…This provision of the law regarding public order should also be applied to pending cases. However, 6217 S.K. LAT. Pursuant to article 2, the implementation of article 346 of the TCO 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.
6th Civil Chamber of the Supreme Court of Appeals E. 2008/11519 K. 2009/720 T. 2.2.2009: “… The case is about the request for annulment of the objection against 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 reasoning of the majority of the Chamber of non-jurisdiction regarding the lawsuits filed before the enforcement of the TCC No. 6102 but after the enforcement of the Code of Civil Procedure No. 6100 is valid. However, in terms of lawsuits filed after the enforcement of TCC No. 6102, 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 pursuant to Article 142 of the Constitution, the duty relationship initially held in the HMK was taken into the absolute jurisdiction of the Commercial Courts in terms of commercial enterprises in the TCC No. 6102, which came into force later on. With the 3rd article of the TCC, all transactions and acts concerning the commercial enterprise are considered commercial business, and with the 1st paragraph of the 4th article of the TCC, the civil lawsuits and uncontested legal actions arising from the matters related to the commercial enterprise 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 TCC, is indicated as the Commercial Court of First Instance in Article 5 of the law.
As can be seen, the commercial courts of first instance, which came into force after the HMK and are in charge of commercial cases concerning the commercial enterprise, are the Commercial Courts of First Instance. Since lease 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.
Therefore, I do not agree with the reasoning of the majority of the Chamber to reverse the decision of the court’s non-jurisdiction.
