Turkish Law Blog
Liability of Trust in Group of Companies as per Turkish Commercial Code No. 6102
With new Turkish Commercial Code (“TCC”) No. 6102, a new regulation came into force in Turkish jurisprudence called ‘liability of trust’ in group of companies with Article 209 which is stating the following:
“In cases where the controlling company attains a level where its group reputation inspires confidence among the community or consumers, it shall be liable for any consequences of such.”
As the concerned law’s preamble confirms, Turkish Republic (“Turkey”) is the first country whom regulated the liability of trust of the group of companies which is inspired on society and consumer deriving from the verdict of Swiss Federal Court titled Wibru vs Swissair, dated 1994.
As the liability came into life in civil law jurisprudence in a date which can be deemed as a juvenile, enacting a law by Turkey stepping into such area is very proactive measure taken by Turkish legislator.
Concordantly, in this article, what this liability stands for and the limits for its application as per Turkish law understanding will be contemplated.
Derivation of the liability of trust in group of companies, is verdict of Swiss Federal Court. Without setting forth the merits of the case, understanding the TCC’s regulation will not be very effective because every law exists due to a reason and reasons behind laws shall be understood initially for foreseeing how it will be applied. Therefore, it is deemed necessary to present what the merits of the concerned case initially. Then how this case effected Turkish legislation can be elaborated.
Swissair Beteiligungen AG (“Swissair”) set up a company named IGR Holding AG (“IGR”) in 1987 under its own control. As most people are aware, Swissair is a company established in March 26, 1931. Until 2002, when it ceased operations, it was being called as ‘flying bank’ thanks to its financial stability and, accordingly, in Switzerland it was deemed as a national brand and proud of Swiss citizens.
IGR as a company under the umbrella of Swissair commenced providing timesharing basis residential services near to golf ranges to its customers whom are called members. Those customers included, afterward, a company called Wibru Holding AG (“Wibru”) who purchased a membership from IGR in 1988. Subsequently, IGR has bankrupted in 1990 according to which Wibru’s investment went in vain. Thus, Wibru, for compensation of its damages arising from its investment, filed a lawsuit against Swissair by basing its argument on the fact that IGR had always presented that it was a member of Swissair group in all its marketing materials including but not limited to its contracts. Hence, the prospective buyers of services provided by IGR have been assured, allegedly, by Swissair’s strength, from which those buyers would not have expected any harm and have been made confident about their investments. In accordance, thereof, Wibru pointed out that, since Swissair sold its shares in IGR to Euroactividade AG on 1990 without informing the members whom purchased or were purchasing services from IGR and left the IGR without enough financial protection, their belief against IGR as being assured by Swissair was lost and breached. In addition to this, Wibru implicitly claimed that by selling its shares in IGR, Swissair caused bankruptcy of IGR by leaving it without sufficient financial resources.
Under these facts, at the end of the legal proceedings for the case of Wibru vs Swissair, the judge concluded that Swissair’s behaviors during the negotiations between IGR and its prospective buyers as if it was a warrantee for IGR’s services, created an unwritten legal relationship between Swissair and IGR’s customers and pointed out that Swissair shall be held responsible for IGR’s actions or failures although such responsibility cannot be deemed arising from either tort law or contract law. Hence, this liability created a new term in legal terminology named ‘liability of trust’ specific to group of companies.
The verdict of Swiss Federal Court put the parent company under an unforeseeable legal risks. First of all, what kind of activity of the parent company would build the trust on consumers is an open question. As an example, would usage of logo of parent company by the subsidiary company be enough for reaching to such conclusion? Second of all, what kind of measures can be taken against the parent company due to subsidiary companies’ activities?
As mentioned above, it was necessary to shed light on derivation of liability of trust in group of companies from Swiss practice because in preamble of the TCC for Article 209, the case of Wibru vs Swissair has been referred.
- General aspect of liability of trust in Turkish jurisprudence by elaborating on Turkish Civil Code and Turkish Code of Obligations (“TCO”) No. 6098,
- Liability of trust as per Article 209 of TCC, conditions in this regard and important points for application.
To start things off, as per the Turkish law understanding, first thing to be kept in mind is that ‘liability of trust’ shall not be sought in case of contractual relationship because if there is a contractual relationship, the conflicts and claims between the parties will be resolved as per the existing contract.
Therewithal, for application of ‘liability of trust’, there should be some bond between the parties which can be called as ‘contact point’. (As will be elaborated in below, such contact point of parent company and consumer of subsidiary company should exist for application of Article 209 of TCC). By this point, tort law rules will not be used for ‘liability of trust’ because for tort law there is no relationship between the parties except the committed tortious act. Among other things, it is to be remembered that as per TCO, there are three base points for creditor – debtor relationship: i) Debtor – creditor relationship arising from contracts, ii) Debtor – creditor relationship arising from Torts and iii) Debtor-creditor relationship arising from unjust enrichment.
Under this understanding, it can be said that ‘liability of trust’ is between the tort law and contract law and, basically, covering the ‘culpa in contrahendo’ doctrine.
Liability of trust is defined as “a liability arising from breach of obligations based on principle of good faith” which is fundament of all legal relationships as per Turkish statute which is governed under Turkish Civil Code No. 4721 vide Article 2 stipulating the following:-
The liability arising from ‘culpa in contrahendo’ or specifically ‘liability of trust’ is bearing on Judges’ Making Law theory which is a theory for determining which law to be applied in case of an existence of atypical contract. The core basis of this theory is the Article 1 of Turkish Civil Code No. 4721 setting the forth the following:
It is to be noted that, although ‘liability of trust’ and ‘culpa in contrahendo liability’ are much related, the liability arising from the ‘culpa in contrahendo’ is applicable for the creditor – debtor relationship for the term prior to contract is signing. However, ‘liability of trust’ continues even after the contract is drawn up.
After setting forth the basis of ‘liability of trust’ under Turkish Civil Code, it is relevant to enumerate what the conditions are for usage of ‘liability of trust’ for claim purposes hereunder:-
- There should be active and / or passive actions which can build trust in third parties and those actions can be attributed to the person with whom the trust is built,
- Third party’s trust shall be justified and fall within the scope of good faith,
- The third party shall make a disposition based on this trust,
- The party with whom the trust is built shall breach the liability of protection wrongfully which is expected from him,
- Damage shall be incurred by third party as result of breach of the party with whom the trust is built,
- The party with whom the trust is built shall be in a position to foresee the result of its actions for the sake of limiting the liability i.e. It should be aware of the borders of its liability.
The reason of why the explanations are made with regards to relation of ‘liability of trust’ with Turkish Civil Code is to set forth that Article 209 of TCC has not been enacted solely because of verdict of Swiss Federal Court. This liability had its place in Turkish jurisprudence. However, now there is a provision in the TCC specifically regarding the group of companies governing the actions of the parent company. While interpreting and applying this Article 209 of TCC, it is beyond doubt that the principles covered under Turkish Civil Code will be used, especially pursuant to Article 1 of Turkish Civil Code which is stating “The Law is applied to all the matters which it mentions with its wording and deed”. Also, from the explanations made below, it will be crystal clear how those conditions mentioned above are actually sought when making assessment as to whether to apply Article 209 of TCC in a conflict.
As mentioned above ‘liability of trust in group of companies’ is a new legal terminology brought to Turkish jurisprudence with TCC vide Article 209. In absence of such terminology, the problems with regards to liability of trust could have been resolved by applying general rules governing the legal relationships between the parties particularly arising from TCO or Turkish Civil Code i.e. ‘culpa in contrahendo’ which was explained in detail above in Chapter Ref. 2.
However, asserting claim based on ‘culpa in contrahendo’ as can be comprehended from the above is always challengeable and intangible and more importantly subject to discretion. Therefore, enacting an article setting forth a specific obligation will aid the practitioners and will ease their troubles to substantiate their arguments.
Preambles of laws are always important for interpretation purposes and handling of the merits of the particular cases. Therefore, preamble of Article 209 of TCC shall be reviewed in outline for elaborating the subject in detail.
“The subsidiary companies frequently mention the name of the group of companies which they are member of, in their stationery, announcement and especially, in their advertisement. Thereby, they gain customers and make profits. In case that the concerned group of companies possess a well – known reputation, such profits increase.
In the basis of society or, in the strict sense, consumers’ tending towards subsidiary company and increase the market share of the subsidiary company by trusting the name of the group of company, there is a trust and belief against that the subsidiary company which is a member of such group as to such subsidiary company will act honestly, the publicized financial statements and documents of it reflect the reality, its technology is advanced and it possess a good quality.
If the financial statements, information or quality etc. is not matching with the trust created, the parent company whom does not object to usage of its name by the subsidiary company shall be responsible for the result. In this regard, core reason of the liability is ‘usage of trust’. If there is no usage, then solely being a member to group does not result in liability of parent.
Not all the groups of companies are in the scope of the article. In order a group to be subject to the result of the article, its reputation shall attain a level building trust in society and consumer. Yet, this is determined as per the concrete case.”
In light of the concerned preamble and wording of the article, now the essence of the application of Article 209 of TCC can be discussed. As can be understood, the core things encircling the subject at both in article and preamble are ‘reputation’, ‘usage of reputation’ and ‘building trust by usage of reputation’.
TCC is familiar with term of ‘reputation’. It can be seen in several clauses such as in Article 56 it has been used in the shape of ‘professional reputation’. More importantly in Article 127, ‘commercial reputation’ has been determined as one of the thing which can be put as a capital into the company. Therefore, it is comprehensible that though reputation is an intangible formation, it has a financial meaning.
For a better understanding, it is to be reminded that likewise persons have reputation, corporates have reputation and ‘corporate reputation’ can be defined as “observers’ collective judgments of a corporation based on assessments of financial, social and environmental impacts attributed to the corporation over time.” In other words, “corporate reputation is ‘a perceptual representation of a company’s past actions and future prospects that describe the firm’s appeal to all of its key constitutents.”
The term is so important for application of the concerned article because as will be discussed below, ‘usage’ is directly affected. Sometimes reputation would not be so good however usage could be so extreme which leads the judiciary to apply the article, but sometimes usage would be so transparent and challengeable, however the reputation would be so good that enables the judiciary to decide the customers choose the subsidiary company solely because of such reputation of the holding / parent company. Accordingly, this would enable the judiciary to apply the concerned article provided that other prerequisites realize.
The reputation which attains a level building the trust on society and consumer can be solely determined by an expert panel in every case because the level in the article is ambiguous. However, some scholars advised a few prerequisites to enlighten this subject as following to set some criteria for determination of level sought:-
Such tending shall increase the market share of the subsidiary and eases its operations.”
Another important topic to be touched upon is the ‘society’ and ‘consumer’ terms in the article. The article does not shed light on whether ‘society’ will be all the society or just the society consists of related persons. In my opinion, the article aimed whole society as if the group is a ‘celebrity’ whom is widely – esteemed. However, such interpretation will strictly limit the execution of the article. How many groups are there in Turkey who are known by all the society? Nevertheless, it is seen sometimes in Turkey that some laws are enacted solely for minorities. Therefore if the ratio legis of the article is addressing to all the society, then the interpretation shall be made in this regard. This matter, however, requires the Court of Appeal’s (“CoA”) clear judgements which will realize in future hopefully.
In relation with the previous paragraph, it should be noted that sometimes reputation of the group would be good and addressing to the 99 % of the society. However, remaining 1 % could have bad experiences with their former transactions with some of the subsidiaries of the group and therefore would have no trust against the group. In such case, while applying the article, the judge will be in a problematic dilemma wherein it should decide whether the claimant is involved to 99 % or 1 % because a person who has no trust to parent company may enter into a contract with subsidiary and later on would like to sue the parent company and try to bear on Article 209 for seeking leverage and advantage. In such case application of Article 209 will not be in conjunction with ‘principle of good faith’ which, as told above, is a principle governing all legal relationships.
All in all, though it is challengeable, for now, ‘reputation’ can be defined as cumulative image of the group in all society, existence of which is the first key prerequisite to be sought in the group / parent for application of the Article 209 of TCC.
‘Usage of reputation’ is another core condition of application of Article 209 of TCC. This is extremely relevant to ‘legal independency but economical companion’ feature of group of companies. If there is no usage, then solely existence of group’s reputation will not permit application of the concerned article.
It is so evident that subsidiary company by means of using the reputation of group obtains benefits. It gives a representation to the consumers as it will act honestly, its documents and balances are correct, its technology is advanced, it is loyal to its obligations and debts etc. This is like an effect of a trademark and, accordingly, results of showing a trademark to the consumers is similarly applicable herein.
At the preamble of the Article 209, the legislator made some explanations as to what activities the ‘usage’ covers. For ease of remembrance it was stated therein that ‘Yet, usage of reputation is determined as per the every concrete case. For usage, it is not necessary to mention the name of group or present the company logo.’
As the preamble concerns, every concrete case will be evaluated with regards to existence of usage. However since this would be so subjective, it would be beneficial to put some criteria likewise for checking existence of reputation.
Actually, usage means giving insurance to the society and consumers with the name of the group. As the preamble stipulates, this insurance is not limited to mentioning name or presenting the logo. It can be more diversified than this.
For instance in case of contract negotiation regarding the subsidiary company, if authorized representatives of the group shows up, this shall be deemed as a usage or if the subsidiary company uses a well – known trademark of the group while convincing the customer, this will be another good example of usage. Concordantly, it is to be noted that the more the intensity of usage increases, the easier the decision will be given as to whether the usage exists.
Despite all the above, liability of parent shall be limited. Otherwise there will be unreasonable and unfair situation. In this regard, it should be noted that, usage of group logo without any specific purpose, just for showing the membership to group like putting a logo in website will not be sufficient to accept the usage. This has been pointed out also by a decision for the case of Musikvertrieb vs Motor – Columbus of Swiss Federal Court (it is to be remembered that another decision of Swiss Federal Court was used in preamble of Article 209 for justification of the article, therefore this case also holds an importance for Turkish law understanding) with following statement:-
In addition to the above, as mentioned already, the liability of group shall be limited from another point of view which is control of the parent on the usage of the subsidiary company. Control can be understood by seeing active manners of the parent / holding company like as depicted above ‘parent company’s representatives’ attending to a meeting of the subsidiary’. Also ‘silence to usage of the subsidiary company’ by the parent company means that the parent company had control over it. For ease of remembrance, the preamble was stating that “If the parent company whom does not object to usage of its name shall be responsible for the result.”
In accordance, thereof, reputation of group is not enough for application of Article 209 of TCC. Such reputation shall be used either in an active or passive manners. Furthermore, the liability shall be limited and the legislator put two limitation: (i) usage in general way is not sufficient for application, (ii) parent shall be aware and in a position to control the usage of subsidiary to some extent.
The conditions referred above Chapters Ref. 3.3 and 3.4 for application of the concerned article are subject to one last condition: Building the trust. This means that reputation of group and usage of reputation shall lead the consumer to develop a trust with subsidiary company and build a belief on the consumer like ‘maybe the subsidiary company would not suffice the consumer but there is a reputable group behind the subject subsidiary company whom ensures subsidiary’s quality or would not let the subsidiary to do something wrong’. What kind of a trust is required for application of the article and what the trust in the article stands for, can be evaluated under the light of the decision of Turkish CoA as follows:-
“Term of trust, by its definition, is not a term wherein there are solely ethical and moral expectations. At the same time, it has a serious impact in interaction of the persons within the society and is also a psychological – sociological term which have a substantial influence on interpretation and complementation of some declaration of intentions which are sometimes deficient, incomplete or tacitly slurred over. Within the need of being informed, there are economic, social and cultural meanings of the trust. As per one opinion, term of trust is a mood, mindset and understanding totally regards to the person’s interior world which complement the interactions of one person to other persons within the society and which is used for interpretation or has a leading role in the events related to future of such person.
Under the skin of term of trust, there are underlying meanings as righteousness, honesty, openness, sincerity, authenticity, justness etc. Therefore, meaning of term of trust is based on these enumerated principles. In this sense, trust is reciprocal. Either one person trusts to other (trustor) or other (trusted) trusts to concerned person. The trust inspired by one person also requires a reciprocity and legal protection.
The party whom entered into a legal relationship, trusted to other (trusted) based on its trust to the measures foreseen by the law in case of breach of this trust. The liability of acting fair and square and being faithful has been put on the shoulders of the trusted. Since the trusted created this trust with its actions, in the doctrine, it has been asserted that the trusted cannot object to the trustor as to why it trusted.”
In line with conclusion of the Turkish CoA, in the Swissair vs Wibru case as explained in above Chapter Ref. 1.1 , the Court based its decision on the facts that (i) Swissair permitted the IGR to use its reputation (ii) Swissair would have prevented IGR to give wrong information to business partners and (iii) Swissair would have established IGR with sufficient capital whom was going to undertake such a big investment. However, Swissair did not do these, therefore, the It shall be held liable. In other words, Swissair shall be responsible for the trust built on the consumers who had legal relationship with the IGR.
Term of ‘trust’ can be extended to other levels. For instance, the consumer would have the belief that group would step in, in case subsidiary company would not be able to fulfill its obligations under the contract with consumer. This case is especially applicable if subsidiary and parent companies are sharing same managers.
To add more after establishing what building trust means, it is pertinent to elaborate on the topic how this fact can be proven. It is to be highlighted that as noted above at Chapters Ref. 2.1 and 2.2, before the regulation in TCC regarding ‘liability of trust’, this subject could have been resolved by means of general principles governing the contracts in Turkish jurisprudence one of which is ‘principle of good faith’ covered with Article 2 of Turkish Civil Code. The same principle will be applicable when the subject comes to prove whether the actions or inactions of the group or parent are enough to build trust on the consumer or society.
For instance, if it is the case that the consumer entering into contract should have known the fact that (i) although the subsidiary is using the reputation of the group and ensuring the consumer that group will uphold the subsidiary (ii) this representation of the subsidiary cannot be correct, then consumer’s claim based on Article 209 of TCC cannot be accepted by the court. Therefore, it can be deduced that the trust which will be protected is going to be righteous trust. The Turkish CoA has endorsed this fact.
“In resolution of the conflict between the parties, parties’ presentation of conditions which builds trust, matters. In addition to the provisions brought by the law for protection of the trust, the verbal or written behaviors of the parties may create this trust. The trust which is built shall be legally protected pursuant to liability of trust. Under the liability of trust, the parties shall not break the trust and confidence expected. In this regard, we can count on verbal statements, several documents or implicit intention actions.”
In consideration, thereof, for application of Article 209 of TCC, solely existence of the reputation of the group or usage of the same is not sufficient. Those prerequisites shall build a trust on society or consumer. Whether the trust is built and it is reasonable shall be evaluated as per ‘principle of good faith’. The trust which will be protected by law shall be righteous trust.
‘Liability of trust’ is a new legal regulation came into Turkish jurisdiction with new TCC. As the preamble of the concerned law stated, the roots of the regulation comes from the case of Wibru vs Swissair, dated 1994.
In the absence of the Article 209, ‘liability of trust’ was in scope of TCO and Turkish Civil Code and was resolved through application of ‘culpa in contrahendo’ principles. However since claims based on ‘culpa in contrahendo’ are always subject to debates and challengeable, incorporating a specific article in TCC has eased the law practitioners’ application. It should be noted that existence of a specific article in TCC does not prevent the use of interpretation methods based on TCO and Turkish Civil Code which will be highly useful in future cases.
Notwithstanding the above, application of Article 209 is subject to exhausting of three prerequisites: ‘existence of reputation of group’, ‘usage of concerned reputation’ and ‘building trust by usage of reputation’.
Secondly, such reputation of the group shall be used by subsidiary company in its transactions subject to two limitations: (i) Usage of group logo or image in a general manner is not sufficient. Usage shall be more intensive sufficient to build trust on the society or consumer. (ii) The parent company shall be in a position to foresee or control of the usage of the subsidiary company. Those two limitations are important because purporting the otherwise will lead to an event that all the group of companies which have reputation are going to be deemed liable with the actions of the subsidiary company. Therefore, in order to prevent such indeterminate interpretation, both the verdicts of Switzerland courts and preamble of the TCC which is based on concerned verdicts, enable us to comprehend and accept those limitations.
The sum and substance of the above, in this article notable points to be taken into consideration while reviewing liability of trust in group of companies under the ambit of TCC has been elaborated. The term is new to Turkish jurisdiction and application is very limited for now. Since the subject is related to an intangible event and problematic from the merits to demonstration, for foreseeability, the law practitioners will await for CoA’s judgements against this matter. However, for starting point to understand this topic, I hope this article would give a general outline and understanding.
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AKER, Halit, “Türk Şirketler Hukukunda Yeni Bir Kurum: ‘Hakim Şirketin Güvenden Sorumluluğu, (TTK Tasarısı m. 209): İsviçre Federal Mahkemesi Kararları Işığında Bir Değerlendirme”, p. 78.
Turkish CoA - Assembly of Civil Chambers, Date: 10.02.2010, Case No.: 2010/9 - 39 and Verdict No.: 2010/71.
AKER, Halit, “Türk Şirketler Hukukunda Yeni Bir Kurum: ‘Hakim Şirketin Güvenden Sorumluluğu, (TTK Tasarısı m. 209): İsviçre Federal Mahkemesi Kararları Işığında Bir Değerlendirme”, pp. 85 – 86.
Turkish CoA - Assembly of Civil Chambers, Date: 10.02.2010, Case No.: 2010/9 - 39 and Verdict No.: 2010/71.
Turkish CoA - Assembly of Civil Chambers, Date: 19.04.2017, Case No.: 2015/9 - 1588 and Verdict No.: 2017/784.