Goodwill Compensation

Goodwill compensation has been subject to myriad Court of Cassation decisions and is defined as "the compensation for the continued benefit arising from the customer base garnered through the personal efforts of the agent during the agency relationship, and still enjoyed by the principal and not by the agent after the termination of the agency agreement."[1]. Article 122 of the Turkish Commercial Code No. 6102 (TCC) aims to establish equity by entitling the agent to a certain amount of compensation consequent to the termination of the agency agreement, due to the fact that the agent has created a market and customer portfolio through advertising and promotional activities based on the assumption that it will operate in the market for a certain period of time, and in this sense, has been instrumental in the benefit enjoyed by the principal even after the termination of the agreement. In this context, the compensation should not only be considered as "pecuniary damage" or a "financial right", but should also be associated with the effort to remedy the adverse situation arising from the customer base garnered by the agent and the termination of the agency agreement resulting in the detriment of the agency[2].

According to Art. 122/1 TCC, after the termination of the contractual relationship;

• If the principal obtains significant benefits after the termination of the contractual relationship, due to the new customers found by the agent,
• If, as a result of the termination of the contractual relationship, the agent loses the right to demand remuneration for the works already performed or to be imminently performed with the customers brought into business by him, that he would have otherwise obtained had the contractual relationship continued,
• If, when the facts and circumstances of the case are evaluated, it is equitable to pay,

The agent may request a suitable compensation from the principal. Pursuant to Article 122/4 of the TCC, the agent is required to request compensation within a period of 1 year following the termination of the agency agreement. This 1-year period is considered as a forfeiture period according to the majority view. Therefore, provided that the right to demand goodwill compensation is asserted within the above-mentioned 1-year period, it may also be asserted through a lawsuit within the five-year statute of limitations pursuant to Article 147/5 of the Turkish Code of Obligations (TCO)[3]. However, it should be noted that, pursuant to Article 122/3 of the TCC, if the agent has terminated the contract in the absence of any act of the principal justifying the termination, or if the contract has been terminated by the principal with just cause due to the fault of the agent, then the agent cannot claim goodwill compensation.

Article 122/4 of the TCC stipulates that the compensation claim cannot be waived in advance. Accordingly, the provisions in the agency agreement stating that the agent may not request a goodwill compensation claim shall be deemed invalid. However, it is legally possible to waive the goodwill compensation claim after the conclusion of the agreement, although its validity is subject to dispute in the doctrine.

TCC does not contain an explicit regulation governing the determination of the compensation amount. However, Article 122/2 of the TCC, does contain a provision relating to the upper limit of the compensation amount stipulating that "Compensation shall not exceed the average of the annual commission or other payments received by the agent as a result of its activities in the last five years." Accordingly, the judge may award an equitable compensation, provided that it does not exceed the upper limit. If the agreement is terminated within a period shorter than five years, the compensation is calculated by taking the average of the fees and other payments received during the duration of the agreement.

Lastly, pursuant to Article 125/5 of the TCC, unless it would be contrary to principles of equity, compensation may be claimed in the event of the termination of exclusive dealing and other similar permanent contractual relationships granting exclusivity rights. However, it is important to note here that the relevant contractual relationship must grant exclusivity rights to the party. For example, goodwill compensation cannot be claimed based on a dealership agreement that does not grant exclusivity.

[1] Yargıtay 11.HD, 30.11.2017, E.2016/2791, K.2017/6770

[2] Rauf Karasu, “Türk Ticaret Kanunu ve Türk Ticaret Kanunu Tasarısı’na Göre Acentenin Denkleştirme Talebi”, AÜHFD., 2008, C.57, S.4, s. 289.

[3] Kaya, Türk Ticaret Kanunu Şerhi (Acente), s. 251- 252; Bilgili ve Demirkapı, Ticari İşletme Hukuku, s. 140; Bozer ve Göle, Ticari İşletme Hukuku, s. 170; Bahtiyar, Ticari İşletme Hukuku, s. 201.

Sources

1. T.C. Dicle Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı “Türk Hukukunda Acentelerin Denkleştirme Talep Hakkı” Yüksek Lisans Tezi, Hülya Ecer Kılıçoğlu,2021 https://acikerisim.dicle.edu.tr/xmlui/bitstream/handle/11468/8615/T%C3%BCrk%20hukukunda%20acentelerin%20denkle%C5%9Ftirme%20talep%20hakk%C4%B1.pdf?sequence=1&isAllowed=y

2. Acentenin Denkleştirme İstemi Hakkındaki Yargı Kararlarına İlişkin Bazı Değerlendirmeler”, İnönü Üniversitesi Hukuk Fakültesi Dergisi 2022, C. 13, S. 2, s. 534-548.https://www.researchgate.net/publication/366645703_Acentenin_Denklestirme_Istemi_Hakkindaki_Yargi_Kararlarina_Iliskin_Bazi_Degerlendirmeler_Inonu_Universitesi_Hukuk_Fakultesi_Dergisi_2022_C_13_S_2_s_534-548

3. https://www.lexpera.com.tr/ictihat/yargitay/11-hukuk-dairesi-e-2016-2791-k-2017-6770-t-30-11-2017

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