,
Since both parties are merchants in the lease agreement relationship, the transaction is considered a commercial transaction in accordance with Articles 4, 5, and 21 of the Turkish Commercial Code, and commercial courts have jurisdiction over any disputes arising in this regard.
We would like to share with you a few Supreme Court decisions on this matter:
High Court of Appeals, 6th Civil Chamber, E. 2012/17480 K. 2013/629 T. 22.01.2013: “…This provision of the law relating to public order should also apply to ongoing cases. However, pursuant to Article 2 of Law No. 6217, the application of Article 346 of the Turkish Commercial Code to lease agreements for business premises where the tenants are merchants has been postponed for eight years. Since the leased premises are a business premises and therefore the tenant is likely to be a merchant, the decision should be made by focusing on whether the defendant is a merchant.”
High Court of Appeals, 6th Civil Chamber, E. 2008/11519, K. 2009/720, T. 2.2.2009: “… The case concerns a request for the cancellation of an objection filed against enforcement proceedings for the collection of rent owed by the creditor. The dispute centers on whether advance interest can be applied to the rent owed. For advance interest to be claimed, it is sufficient that the debtor is a merchant and that the debt is related to a commercial enterprise. It is not necessary for the creditor to be a merchant. From the scope of the file, it is understood that the defendant tenant is a joint-stock company and rented the premises in question for commercial purposes. Although the plaintiff requested the collection of the rent owed with advance interest, it is incorrect to rule on the legal interest rate…”
Law Office 2015/1262 E., 2015/5259 K.
-NEGATIVE VOTE-
The case concerns the cancellation of a claim for compensation based on a workplace insurance policy. The court ruled that it lacked jurisdiction, noting that the damaged workplace was a commercial enterprise and the defendants were the owners of this workplace, and therefore the case fell within the jurisdiction of the commercial court. It overturned this decision on the grounds that, pursuant to Article 4/1-a, the case fell within the jurisdiction of the Criminal Court of Peace.
The majority opinion of the Chamber that it lacked jurisdiction is valid for cases filed after the entry into force of the Civil Procedure Code No. 6100 but before the entry into force of the Commercial Code No. 6102. However, for cases filed after the entry into force of the Commercial Code No. 6102, the issue of jurisdiction in cases involving commercial enterprises has been resolved.
Taking into account the principle that the establishment, duties, and jurisdiction of courts shall be regulated by law in accordance with Article 142 of the Constitution, the jurisdiction relationship that initially existed in the Code of Civil Procedure was subsequently transferred to the absolute jurisdiction of the Commercial Courts for commercial enterprises with the entry into force of Commercial Code No. 6102. Article 3 of the TCC stipulates that all transactions and actions related to commercial enterprises are considered commercial activities, and Article 4(1) of the TCC stipulates that legal disputes and non-contentious legal transactions arising from matters related to commercial enterprises are considered commercial disputes.
The last sentence excludes “lawsuits arising from transfers, deposits, and rights related to intellectual and artistic works that do not concern commercial enterprises” from this scope.
As explained in Articles 3 and 4 of the TCC, the court where commercial activities and commercial lawsuits are heard is specified in Article 5 of the law as the Commercial Court of First Instance.
As can be seen, since lease agreements between merchants are not among the matters specified as exceptions in Article 4 of Law No. 6102, the first instance commercial courts, which came into force after the HMK and hear commercial cases related to commercial enterprises, cannot use the provision in Article 4/1-a of the previous Law (HMK) cannot serve as a basis for rendering an incompetent decision in disputes concerning commercial enterprises.
Therefore, I do not agree with the majority opinion of the Chamber regarding the reversal of the Court’s incompetent decision.