In the globalizing and dynamic business world, the transfer of commercial enterprises has evolved from being merely an economic event into a strategic step requiring intricate legal processes and careful planning. The transfer of an existing business by a merchant to another commercial actor without liquidation and without interrupting its operations is a critical mechanism for ensuring the continuity of the enterprise and preserving its economic value. This transfer process maintains the integrity of the business while avoiding lengthy and complex liquidation procedures and enables the transfer of ownership through a single legal transaction.

However, asset transfer, which simply means the separate transfer of the active and passive elements of the business, is a broader concept but necessitates separate legal transactions for each right and receivable and is not subject to a specific form requirement. This situation entails a time-consuming and complex process, especially for businesses with multiple assets and debts. It is at this point that the institution of "commercial enterprise transfer" becomes an indispensable part of modern commercial law by offering a practical, fast, and holistic solution.

In this comprehensive assessment, within the framework of the provisions of the Turkish Commercial Code No. 6102 ("TCC"), the Turkish Code of Obligations No. 6098 ("TCO"), and the Execution and Bankruptcy Law No. 2004 ("EBL"), we will deeply examine the current legal meanings of commercial enterprise and asset transfer, the legal consequences of these transfers, the rights and obligations of the parties, important points to be considered, and the new perspectives brought to this issue by current judicial decisions.

1. The Concept of Commercial Enterprise and Its Difference from Asset Transfer

Article 11 of the TCC defines a commercial enterprise as an organization that aims to generate income exceeding the limit prescribed for small tradesmen's enterprises, where activities are carried out continuously and independently. This definition clearly reveals that a commercial enterprise does not consist solely of tangible assets (movables, immovables, fixtures, etc.) but also includes intangible assets (trade name, business name, brand, patent, know-how, customer base, commercial reputation, etc.) and legal relationships (contracts, receivables, debts).

A frequently debated issue in legal doctrine and Supreme Court decisions is when an asset transfer should be considered a "commercial enterprise transfer." According to the generally accepted view, if the transferred assets significantly affect the activities of the commercial enterprise or constitute a substantial part of the business, this transfer is qualified as a commercial enterprise transfer. In this assessment, criteria such as whether the transferred assets alone constitute a business line, whether they ensure the continuity of the business, and to what extent the transferor's operating capacity is reduced after the transfer are taken into account. Recent Supreme Court decisions also adopt this approach.

2. Importance of Formal Requirements in Commercial Enterprise Transfer and Current Practices

Article 11/3 of the TCC mandates that commercial enterprise transfer agreements or other agreements concerning a commercial enterprise as a whole must be made in writing. This written form requirement not only facilitates proof but also enhances legal certainty by clearly defining the rights and obligations of the parties.

Furthermore, the same article stipulates that these agreements will be registered with and announced in the trade registry. Article 133 of the Trade Registry Regulation explicitly emphasizes that the entire commercial enterprise transfer agreement shall take effect upon registration. This provision indicates that the registration with the trade registry is constitutive. Unless the registration process is completed, the transfer does not have legal effect against third parties. Announcement, on the other hand, ensures that the public is informed of the transfer and allows creditors to assert their rights in a timely manner.

In simple asset transfers, as a general rule, no specific form requirement is sought. However, in this case, separate disposal transactions must be carried out for each transferred asset. For example, registration in the land registry for the transfer of immovables, and the transfer of possession for the transfer of movables. This situation can create a significant time and cost burden, especially in the transfer of businesses with extensive assets.

One of the most important advantages of commercial enterprise transfer is that all rights in the entirety of the business (including immovables) pass to the transferee with a single written agreement and registration and announcement in the trade registry. This avoids complex procedures such as separate title transfers for each asset. The established jurisprudence of the Supreme Court also holds that in commercial enterprise transfers duly carried out, the ownership of immovables also passes to the transferee without the need for separate registration in the land registry.

Today, the widespread use of electronic platforms in trade registry transactions also affects commercial enterprise transfer processes. In many trade registry directorates, it has become possible to prepare transfer agreements electronically and carry out registration procedures online. This contributes to the faster and more efficient completion of transactions. However, fundamental principles such as the mandatory written agreement and the constitutive nature of registration still remain valid.

3. Legal Dimensions of the Transferee's and Transferor's Liability

The transferee's liability in commercial enterprise transfer is explicitly regulated by Article 202/1 of the TCO. According to this article, a person who takes over a business together with its assets and liabilities becomes directly liable for the business's debts existing before the transfer, as of the date they notify the creditors of this situation or the date of the announcement in the Trade Registry Gazette. This liability also covers debts that the transferee was unaware of at the time of the transfer. While adopting the principle of the business being transferred as a whole and the uninterrupted continuation of its activities, the legislator also aimed to safeguard the rights of creditors.

Article 202/2 of the TCO stipulates a two-year joint and several liability of the transferor and the transferee for the business's debts existing before the transfer. This period of joint and several liability begins to run from the date of notification or announcement for matured debts, and from the date of maturity for unmatured debts. This provision aims to increase the collection possibilities for creditors and maintain pressure on the transferor. This liability, which the Supreme Court has repeatedly emphasized as mandatory, cannot be eliminated or limited by the parties through agreement or other legal transactions. However, special regulations by law are possible. For example, some special laws may contain different liability provisions regarding business transfers.

The notification of the transfer to creditors or its announcement is a prerequisite for the transferee's liability to arise. While the notification is not subject to any specific form, it is advisable to make it in writing for ease of proof. The announcement is made in the Trade Registry Gazette for commercial enterprises and in a nationwide newspaper for other businesses. Unless the notification or announcement obligation is fulfilled by the transferee, the two-year period of joint and several liability does not begin to run.

Current legal discussions particularly concern the scope, commencement date, and termination conditions of joint and several liability. Recent Supreme Court decisions confirm that the proper fulfillment of the notification or announcement obligation is critical for the commencement and termination of the joint and several liability period. Furthermore, issues such as the transferee's "good faith" or lack of awareness of the debts do not, by virtue of the clear provision of the law, eliminate their liability. However, the transferee's liability may be limited for certain specific debts that they did not explicitly assume in the transfer agreement and that arose from the transferor's fault.

4. Actions for Annulment of Disposition Against Commercial Enterprise Transfer and Creditors' Pursuit of Rights

If the commercial enterprise transfer aims to reduce the debtor's (transferor's) assets and harm the rights of creditors, actions for annulment of disposition can be filed in accordance with Articles 277 et seq. of the EBL. In particular, Article 280/3 of the EBL regulates commercial enterprise transfer as a specific ground for annulment.

According to this article, a person who takes over all or a significant part of a commercial enterprise or acquires existing commercial goods is presumed to know the debtor's intent to harm creditors, and the debtor is also presumed to have acted with this intent. This legal presumption can only be rebutted if the transfer is notified in writing to the creditors at least three months in advance or announced in the Trade Registry Gazette or other appropriate means together with visible signs posted at the location of the business.

This provision aims to effectively protect the rights of creditors. Because business transfers often involve the change of hands of significant amounts of assets, the potential for debtors to abscond with assets from creditors is high. For this reason, the legislator has placed a burden of proof on the transferee to prove that the transfer was made in good faith and did not aim to harm creditors.

Current jurisprudence of the Supreme Court emphasizes that this presumption is strong and that the transferee must prove with concrete and convincing evidence that the transfer did not aim to harm creditors. In particular, factors such as the conformity of the transfer price to the market value, the commercial or personal relationships between the transferee and the debtor, and the manner and timing of the transfer are carefully examined by the courts. Transfers made at a low price, hasty and non-transparent transactions are considered important indications of the intent to harm creditors.

Recently, it has been observed that creditors are more actively using legal means to combat suspicious transfer transactions carried out by businesses facing economic difficulties and on the verge of bankruptcy, with the aim of evading assets from creditors. In this context, courts are adopting a more sensitive approach to protecting the rights of creditors and applying stricter criteria for the rebuttal of presumptions. Furthermore, financial analyses and valuations of business transfers are also used as significant evidence in actions for annulment of disposition.

5. Conclusion

Commercial enterprise transfer is a dynamic and important area of modern commercial law. This process, specifically regulated in the TCC and TCO, provides a practical and holistic legal framework for the transfer of businesses. However, the legal validity and consequences of these transfers depend on strict compliance with the procedures and formal requirements stipulated by law.

The importance of qualifying an asset transfer as a commercial enterprise transfer is increasingly growing. The fact that the transferred assets constitute a "substantial part" of the business significantly affects the legal regime to which the transfer will be subject, the responsibilities of the parties, and the rights of creditors. Therefore, in the process of preparing and implementing transfer agreements, current legal regulations, recent jurisprudence of the Supreme Court, and prevailing opinions in legal doctrine should be taken into account.

In conclusion, before each asset or commercial enterprise transfer, a detailed examination of all legal dimensions of this transfer (formal requirements, liabilities, creditor rights, etc.) by expert legal professionals is vital for the common interests and legal security of the parties. Especially recent legal developments and court decisions once again emphasize the need for utmost care for the principles of transparency, good faith, and legality in business transfer processes. Otherwise, the parties may face serious legal risks, and the rights of creditors may be harmed. Therefore, commercial enterprise transfers should be considered not only as an economic transaction but also as a complex legal process, and legal advice should not be neglected at all stages.