How to Refund the in the Limited Company Capital Share Transfer Cost?
The transfer of capital shares (share transfer) in Limited Companies is made on the basis of the conditions stipulated in Article 595 of the Turkish Commercial Code. These conditions constitute the validity of the share transfer. If even one of the mandatory elements is missing, the share transfer will become invalid. For example, if the transactions that form the basis of the share transfer are not in writing, the signatures in the Share Transfer Agreement are not approved by the notary public or the resolution taken has not the approval of the General Board, the transfer is invalid. The problems encountered arise when an action is taken even though the share transfer is invalid or canceled.
When transferring shares in a Limited Company, the price of the transferred shares is paid by the transferee to the transferor. In other words, the partner who takes over the shares from the company must pay the share price to the transferor. The act to be performed in return for the share transfer may be a payment of an amount of money, or it may be another act other than money. An annotation regarding the payment of the share prices can be added to the Share Transfer Agreement. However, the Share Transfer can also be performed with a General Board resolution. As a result, in written agreements that result in the transfer; The names of the transferor and the transferee, the number of transferred shares and the action to be performed in return are included. The transfer can be made by the transferor and the transferee personally, or it can be done by proxy.
The important point at this point is that after the share transfer has been registered, claims that the share transfer is not executed duly or it is invalid arise. The share transfer may be actually performed and the performance of the corresponding action may be signed. However, for a reason that may arise later, a suit may be filed regarding the rescission of the share transfer on the grounds that the conditions on the form are not complied with, the transfer is invalid, the share prices are not paid or the action performed is invalid. If certain actions are performed in return for the transfer of shares; in the case of the share transfer rescission, if both the rescission of the transfer and the return of the performances are not demanded in one suit together, two separate lawsuits arise. In other words, for this reason, the refund of performance cannot be demanded in the case of rescission of share transfer.
If it is claimed that the share transfer is not duly, the action for the share transfer rescission; and if it is claimed that the share transfer fee has not been paid, the action regarding its collection shall be filed. These action can be filed together in one case. In our opinion, if only the rescission of the share transfer is demanded in the lawsuit, this shall not include the return of the share transfer cost. Because the subject of the lawsuit is clearly related to the rescission of the share transfer. In this case, if the party requesting the rescission of the share transfer has taken any action, it will be able to request its return by filing a separate lawsuit. Otherwise, it violates the prohibition of the expansion of claims.
a-) In the Action for Rescission of Share Transfer, the issue to be examined by the court shall be whether the compulsory actions specified in Article 595 of the Turkish Commercial Code have been carried out. In summary, according to the article, the transactions resulting in the transfer must be in writing, the signatures must be notarized and the General Board resolution (approval) is required. If the person requesting the rescission of the share transfer in the petition has not made a separate request, he cannot demand the return of the performance performed or the provision of a refund of the price. For example, if the rescission of the share transfer is requested on the grounds that the petition does not comply with the conditions specified in Article 595 of the Turkish Commercial Code and the refund shall not be demanded, the court cannot make a decision in this regard, and the person requesting rescission cannot file an action on this issue. In other words, in this case, the principle of in toto et pars continetur does not apply. Because the subject of the action for the rescission of the share transfer is not whether the price has been paid or not. Again, the action filed pursuant to this request is not an action of debt in its nature.
b-) If the share transfer is deemed invalid or the rescission of the share transfer is decided as a result of the trial made by the court, the return of the performances given in a separate action may be requested. There may be situations where the share transfer is invalid without the need for a court order. It can be argued that the Share Transfer Agreement is null and void from the beginning or is null and void for reasons that appear later.
In case the Share Transfer is rescinded by a court decision, the refund of the performances may be requested.
If the Share Transfer Agreement is null and void from the beginning and the transferee has performed an act based on this agreement, the relevant transferee may request a refund. In such a case, there is no need to demand the court to rescind the share transfer. Because the share transfer does not bear legal consequences because it does not duly executed. For example, the parties have agreed to transfer shares between them, but at Trade Registry Office, İt is stated that the transfer is null and void due to the lack of one of the elements in Article 595 of the Turkish Commercial Code, and if the transferee has performed an act until this invalidity is found out, he or she may request its return.
“If the transfer agreement is not made in accordance with the law, in this case, the transferee of the so-called share, which has performed an action, may demand back what has been given on the basis of unjust enrichment. ” (1)
If the transfer is not made duly, the transaction will not be valid. In this case, if the parties have given something to each other for the purpose of performance, for example, if some payments have been made, especially if they believe that they have taken over the share, in this case, the money they have given can be taken back according to the principles of unjust enrichment (TCO 77 et al). The Supreme Court has also pointed to this issue in some of its decisions. These decisions will continue to be valid for the New TCC as well. (2nd)
The case is related to the request for rescission of the objection to the executive proceedings initiated for the purpose of collecting the receivable arising from the share transfer agreement of the limited company. Pursuant to the 520/last article of the TCC, the agreements regarding the share transfer do not have any effect even among the relevant parties unless their signature is notarized and executed in writing. In this case, the parties can only demand the refund of what they have given to each other in accordance with the provisions of unjust enrichment. In the concrete case, since the protocol dated 6.6.2001 was not notarized, While the court shall have dismissed the action on the grounds that no demand could be made pursuant to this protocol, which does not have any effect even between the relevant parties, the decision whose result is correct has been approved by changing the reason, although it is not correct to dismiss the case according to the written reasons. (3)
b-) In limited companies, the obligation to prove that a price has been paid in return for the share transfer belongs to the person claiming to have made the payment. The act performed in return for the share transfer does not have to be necessarily money. Acts other than money can also be performed in exchange for share transfer. For example, even if the signed contract states that the share transfer cost is paid in money or another way, the payer is obliged to prove that the payment has been made. The Supreme Court also has the same opinion.
The disaccord between the parties is about whether the money and commodity promised to be given to the plaintiff in return for the limited company share transfer have been given to the plaintiff. Although the plaintiff acquits the defendants in the contracts signed before the notary public between the parties, it is understood from the documents in the file and the statements of the defendants that they took the offered oath that this acquittance is only for the nominal value of the shares and that the defendants have agreed to pay the plaintiff some goods and money in return for the share transfer. Indeed, the defendant Kenan İlker admitted that the signature on the copy, which is called “Evidence No. 4” on which the plaintiff is based, belongs to him. In that case, the obligation of proof that the defendants have delivered or paid the money and goods that they are obliged to perform to the plaintiff belongs to the defendants. In this case, while the court shall be given the right to prove that the defendants fulfilled their performance obligations to the plaintiff and a decision shall be made within the framework of the result, the obligation of proof has been reversed and the dismissal of the case shall not be considered appropriate on the grounds that the plaintiff is under the obligation of proof and cannot strengthen the case. (4)
Conclusion
In our opinion, in the event that the share transfer is null and void, the most appropriate way to request the return of this act shall be made through an unjust enrichment lawsuit by the party performing an act for the share transfer. In order for a refund to be requested, the fault of the other party shall not be sought. However, in cases where the Share Transfer is rescinded from the beginning or later by a court decision, there is no difference in terms of returning the performances. In both cases, the return of the performances shall be demanded based on unjust enrichment.
References
- Şener, Dr. Oruç Hami. Yeni TTK Döneminde Anonim ve Limited Ortaklıklara İlişkin Verilen Yargıtay Emsal Kararlarının Değerlendirilmesi, p. 140-141
- Şener, Dr. Oruç Hami. Yargıtay Kararları Işığında Limited Ortaklıklar Hukuku, p. 292-293
- Turkish 11th Civil Chamber of the Supreme Court, 2002/12809 E, 2003/5328 K.
- 11th Civil Chamber of the Supreme Court, 2002/7353 E, 2002/10021.
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