Additional Payment Obligation Of Partners In Limited Companies
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I.INTRODUCTION
Although additional payment is an obligation that is imposed and the principal capital debt, which is the primary debt of the partners of a limited partnership, can only be stipulated depending on the principal capital share and only through the articles of partnership. (TCC Article 603/1, Article 577/1-c). The purpose of this regulation is to enable partners who are under obligation, to support a partnership that is in a financial predicament and is under a balance deficit with additional payments.
II.THE TERMS OF THE ADDITIONAL PAYMENT OBLIGATION
A.The Necessıty To Be Included In The Artıcles Of Incorporatıon
As stated explicitly under Articles 603/1 and 577/1-c of TCC, the obligation for additional payments can only be imposed via the articles of incorporation. The regulation regarding this matter is mandatory. In other words, additional payment obligations cannot be imposed on the shareholders solely through the decisions of the general assembly and/or the director(s). Such general assembly or manager decisions are deemed to be void.
B.The Amount Of The Additional Payment Obligation
The additional payment obligation imposed through the articles of partnership can only be requested by the director and/or board of directors if the conditions stated under Law Numbered 6102 are met. The amount of obligation can be determined as a fixed amount stipulated in the articles of limited partnership (for example, 20,000 TRY) or the principal capital share (such as twenty percent of the principal capital share). However, this amount cannot exceed twice the principal capital share’s nominal value.
C.The Circumstances In Which The Additional Payment Obligation Can Be Requested
There are three paragraphs under the relevant law which list the circumstances in which the additional payment obligation can be requested. However, it should be noted that the partners cannot be requested to fulfill their additional payment obligations unless there is a financial compulsion, even if there is a provision within the partnership articles. The annual or interim balance sheet data of the partnership can be taken as the basis for determining whether there is a financial compulsion or not.
According to TCC Article 603/1:
1. If the combined total of the company’s principal capital and legal reserves cannot meet the losses of the company,
2. If the company cannot continue its business activities properly without these additional tools,
3. If another situation defined in the articles of partnership has emerged, that causes a need for equity,
Then an additional payment obligation may be requested by the directors and only by the directors.
III.THE PROCEDURE REGARDING THE ADDITIONAL PAYMENT REQUESTS
When the directors request the additional payment obligation’s fulfillment, they must provide the relevant partners appropriately. Requesting in writing will be more suitable with the principles of legal security and transparency. Likewise, it would be appropriate for this request to include the circumstances for which additional payment obligations are prescribed, the amount of the additional payment imposed on the obliged partner, and the sanctions determined in the articles of partnership regarding failures to fulfill the additional payment. The directors will request the fulfillment of the additional payment obligation from the related partners by acting per the equal treatment principle per Article 627 of the TCC.
Additional payments are only requested from the obliged partners. When an obliged partner departs from the partnership, the liability passes to the party who has assumed their shares. However, if the limited partnership has gone bankrupt within two years from the date on which the partner’s departure is registered, and their successor has not fulfilled this obligation, a request can also be made to the departed partner.
According to Article 147/4 of the TCO, in a partnership, any claims arising from the articles of partnership that is between the partners themselves or between the partnership and the partners or any claims arising between the directors, representatives, and superintendents of a partnership and the partnership itself are subject to a 5 year limitation period. Accordingly, since this additional payment obligation is a liability between the partnership itself and a partner and since it can be stipulated in the articles of partnership, it must also be made a subject of legal proceedings or lawsuits in the five years following the request of the director.
IV.THE PROVISIONS AND CONSEQUENCES OF FAILURE TO FULFILL THE ADDITIONAL PAYMENT OBLIGATION
1.Filing a Performance Action Against Obliged Partner
There is no explicit provision in the TCC (Law Numbered 6102) regarding the sanctions to be applied in case of a failure to fulfill the additional payment obligation. However, in Article 577/1 of the TCC, additional payment obligation is considered among the binding provisions, provided that it is included in the articles of association. According to Article 577/1-f of TCC, the provisions of contractual penalty can be applied in the event of total non-fulfillment or belated fulfillment of the obligations stipulated in the law, or the articles of incorporation are also included in this scope.
2.Rightful Dismissal from Partnership
Failure to fulfill the additional payment obligation may also act as a rightful cause for the relevant partner’s dismissal. Dismissal from the partnership may result from an existing legal provision or regulations included within the partnership articles. The parties can include provisions regarding dismissal in the articles of partnership.
3.Rightful Departure for Other Partners
In cases where the additional payment obligation, which is a vital tool in terms of the continuity of the commercial activities of the partnership, also plays an essential role in increasing the credibility of the partnership, the failure to fulfill this obligation or its elimination can be considered as a rightful cause for another partner to leave the partnership in question.
4.Rightful Termination of Partnership
Since additional payments are also significant financial opportunities that increase the partnership’s commercial credibility, failure to fulfill this obligation can be considered a reason for the partnership’s rightful termination. Likewise, since the amount of the additional payment is determined based on the shareholder’s shares in the principal capital share, the departure or dismissal of a partner whose additional payment obligation is significant may especially be why the remaining partners terminate the partnership rightfully.
Yayımlar
- Özel Hastaneler Tarafından Fazladan AlınanÜcretlerinin İadesi
- Savurganlık, Alkol Veya Uyuşturucu Madde Bağımlılığı, Kötü Yaşama Tarzı, Kötü Yönetim Nedeniyle Vesayet
- Şirket Ortakları İçin Altın Değerinde Olan Şey: “BİLGİ”
- Limited Şirkette Haklı Sebeple Ortaklıktan Çıkma
- Yargıtay Kararları Işığında Mal Rejiminde Eşlerin Anne Ve Babalarından Yapılan Devirlerin Hukuki Durumu
- Apartman Görevlilerinin (KONUT KAPICILARI) İş İlişkisi
- İşverenin Eşit Davranma Yükümlülüğü
- Ulusal (İç) Tahkim
- Trafik Kazalarından Kaynaklanan Tazminat Davaları
- Konut Ve Çatılı İşyeri Kira Sözleşmelerinin Uzaması Halinde Belirli Süreli Olarak Devam Etmesi
Bize Danışın
Bize Danışın
Yayımlar
- Özel Hastaneler Tarafından Fazladan AlınanÜcretlerinin İadesi
- Savurganlık, Alkol Veya Uyuşturucu Madde Bağımlılığı, Kötü Yaşama Tarzı, Kötü Yönetim Nedeniyle Vesayet
- Şirket Ortakları İçin Altın Değerinde Olan Şey: “BİLGİ”
- Limited Şirkette Haklı Sebeple Ortaklıktan Çıkma
- Yargıtay Kararları Işığında Mal Rejiminde Eşlerin Anne Ve Babalarından Yapılan Devirlerin Hukuki Durumu
- Apartman Görevlilerinin (KONUT KAPICILARI) İş İlişkisi
- İşverenin Eşit Davranma Yükümlülüğü
- Ulusal (İç) Tahkim
- Trafik Kazalarından Kaynaklanan Tazminat Davaları
- Konut Ve Çatılı İşyeri Kira Sözleşmelerinin Uzaması Halinde Belirli Süreli Olarak Devam Etmesi
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