Zülal Erbil
Apprentice Lawyer
According to 128th article of Turkish Commercial Code that is regulated for the obligation of investing capital, ‘each shareholder is obligated to company to pay the capital that is committed under the articles of association regulated and signed in due form’. Also, under the 7th chapter of the mentioned article, ‘company may demand each shareholder to perform the obligation of investing capital and sue each shareholder as well as company may demand the compensation of damages arisen because of default. Notification is the condition of compensation demands.’
In this direction, each shareholder is obligated for paying promised capitals to company. Company may demand shareholder to perform this obligation and demand compensation of arisen damages in case this obligation will be performed belatedly.
Accordingly, under the 129th article of same Code, ‘ If the capital that is not performed in due time is money; provided that without detriment to the right of compensation as required in 128th article, interest for default shall be paid beginning from company registration in case there is no provision in articles of association or article of incorporation.’ According to this article, interest for defaults shall be paid for capital share that is not paid in due time.
Additionally, under the 344th article of the Code, ‘At least twenty five percent of the nominal value of the share subscribed in cash is paid prior to the registration; and the rest is paid within twenty four months after the registration. Anny issuance premium is fully paid prior to the registration.’ In this regard, ¼ of the promised capital must be paid before registration and the rest shall be paid within twenty four months following the registration. In case that the committed capital is not paid within time period mentioned in Code, breach of capital commitment shall occur.
Consequences of not to pay the capital share:
- Default
According to article 480/1 that states the results of not to perform share prices, “Without exceptions written in Code, another obligation cannot be attributed to shareholder with the articles of association except share price and contribution that exceeds the nominal price of share.” Also, at the article of 481, “share prices shall be demanded by announcement from shareholders in case there is not another article regulated in articles of association. This authorization cannot be transferred.” In addition to it, the rate or amount of the capital commitment, the date of payment and the place of payment must be placed in announcement.
The article of 482 of Turkish Commercial Code subjects consequences of not to perform the capital commitments. According to article 482/2, “shareholder who does not perform capital commitment in due time is liable to pay interest for default without the need to notification.”
At the mentioned article, several authorizations have been given to Board of Directors regarding the shareholders that does not perform the capital commitment. “Board of Directors is authorized to divest the defaulted shareholder of rights borne from subscription and partial payments, sell the related share and appoint another person and cancel share certificates if there is any share certificate that is given. In case that canceled share certificates cannot be taken hold, cancellation decision will be announced in Gazzete and in the way as it is predicted in articles of association.”
- Liability
According to Turkish Commercial Code, members of Board of Directors, directors and liquidators are liable for not performing abovementioned articles about not performing the capital commitments. These persons are liable for damages that they caused against company, shareholders and creditors of company in case they violate their obligations borne by Code and articles of association.
