Direct representation is regulated between Articles 32-40 of the Turkish Code of Obligations and in this type of representation, transactions are carried out directly on behalf of and on behalf of the represented without the need for 2 separate transactions. At this stage, the third party also knows that the current transaction is carried out on behalf of and on behalf of the represented through the representative. For this reason, the third party can apply directly to the represented for the transaction subject to representation.<\/p>\n
ARTICLE 40 OF THE TCC – The results of a legal transaction carried out by an authorized representative on behalf of and on behalf of another person directly bind the represented.<\/p>\n
In order to speak of the existence of direct representation, 2 conditions must be met. The first of these is;<\/p>\n
1- Granting of Representation Authority to the Representative:<\/p>\n
The current authority is granted by the person represented by directing a necessary and sufficient declaration of intent to the representative, and this authority is not subject to acceptance. When this declaration of intent enters the legal domain of the representative, that person will become the representative. Here, the representative’s authority to represent may arise from the law or the will of the person represented.[1]Indeed, the authority to represent minors under guardianship and those who are restricted arises from the law.[2]\n
a- Competence in Granting of Representation Authority:<\/p>\n
As in other legal transactions, general rules regarding capacity are applied here as well. In other words, the person represented who will grant the representation authority must be fully competent. Although the concept of fully competent is regulated by Article 10 of the Turkish Civil Code, persons who are not included in the scope of this article and who are not fully competent can grant representation authority for transactions other than those they can do alone only with the consent of their legal representatives. If the represented person does not have the ability to distinguish, the power of representation is void. It is sufficient for the representative to have the ability to distinguish.[3]\n
Since the legal transaction is not made in the name and account of the representative, that is, the representative does not incur a debt, it is not necessary for the representative to have full capacity. As mentioned above, it is sufficient for the representative to have the ability to discern.<\/p>\n
Any irregularities in the declaration of intent declared by the representative while exercising the authority to represent may cripple the legal transaction, therefore the representative’s capacity is of great importance for the legal transactions to be made and even for the represented person.<\/p>\n
b- Form in Granting the Authority to Represent:<\/p>\n
The legal transaction regarding the authorization of the representative by the represented person is not subject to form. For this reason, the authority can be given verbally and in writing. Although the dominant view in the doctrine is that the legal transaction to be carried out by the representative is subject to form, the declaration granting the authority to represent is not subject to form, Article 89 of the Notary Law No. 1512 states that \u201cContracts and powers of attorney that require transactions at the land registry due to their nature, wills, sales with the reservation of ownership, promises to sell real estate, foundation deeds, marriage contracts, adoption and recognition, inheritance distribution contracts and other transactions stipulated in other laws are regulated in accordance with the formal requirements mentioned in Articles 84-89 of the Notary Law.\u201d In terms of the form of proof, Article 200 of the Code of Civil Procedure is applicable.<\/p>\n
2- Declaration of Acting on Behalf of Another Person:<\/p>\n
The validity of the established representation relationship depends, first of all, on the representative acting on behalf and account of the represented. If the representative acts with the will of representation but does not notify the other party of this status while carrying out the legal transaction, the receivables and debts of the contract belong to him\/her.[4] There are 3 exceptions to the current rule, and these exceptions are included in the 2nd paragraph of Article 40 of the Turkish Code of Obligations. As follows; if the third party infers or should infer the existence of a representation relationship from the situation or if it would be no different if the legal transaction was carried out with the representative or one of the represented, the results of the legal transaction directly bind the represented. Otherwise, the provisions of the legal transaction carried out belong to the representative, not the represented.[5]\n
In short, the provisions of the legal transactions carried out with direct representation, provided that the representative is duly authorized and that all legal stages are carried out duly, the transaction carried out by the representative is carried out in the name and on behalf of the represented, and results as if it was carried out by the represented itself.<\/p>\n
Unauthorized Representation:<\/p>\n
As mentioned above, if the legal transaction is carried out despite the fact that the representative does not authorize or the granted authority is revoked, unauthorized representation will be in question. Unauthorized representation occurs not only in cases where the authority of representation is not granted, but also in cases where the limits of the authority of representation are exceeded and the authority is acted as if it continues despite the fact that the authority has expired or been revoked. In addition, unauthorized representation will also occur if the granted authority is invalid.[6]\n
Unauthorized representation only occurs in the case of direct representation, and indirect representation cannot be considered as unauthorized representation due to its content.<\/p>\n
a- Ways of Seeing Unauthorized Representation:<\/p>\n
a.1\u2013 The existence of the authority of representation cannot be mentioned if the authority of representation is never granted or if the granted authority is invalid or invalid from the beginning to be revoked later. In this case, in practice, it generally appears as acting without agency as a result of the representative acting by assuming that he\/she is authorized.<\/p>\n
.a.1- Exceeding the limits of the representative authority:<\/p>\n
Here, the limit granted to the representative by the representative authority is exceeded by the legal transaction and the part exceeded becomes invalid in the suspension. The part remaining within the limits of the authority remains valid. However, if a part of the legal transaction is invalid, if the entire legal transaction will not make sense or if the legal transaction cannot be divided into parts, it would be appropriate to consider the entire legal transaction invalid according to the provision of Article 27\/II of the TCC.[7]\n
a.3- Termination or revocation of the representative authority:<\/p>\n
This is the situation that occurs when a representative who knows that the representative authority has ended performs a transaction. However, although the exception is regulated by law, if the representative does not know and does not need to know that his authority has ended, the legal transaction performed remains valid and is not affected by the unauthorized representation. In order for unauthorized representation to be in question here, the representative must perform the transaction knowing that the authority has ended. For this reason, if the representation information is given by document, the represented party must revoke this document upon the termination of the representative authority. Even though the principal has not done what is necessary to take back the document, there will still be an unauthorized representation.<\/p>\n
However, the principal or his\/her successors who are negligent in taking back the authorization document will be liable to pay compensation to bona fide third parties. Because there is a faulty liability here and this is a liability arising from contract negotiations.[8]\n
a.4- In case of joint representation, only one representative acts:<\/p>\n
In joint representation, the principal authorizes more than one person. The obligation to act together may or may not be given to the representatives. However, in the assumption that there is an obligation to act together, the representatives must carry out the legal transaction together. In this case, if a single representative performs the transaction, there will be an unauthorized representation.<\/p>\n
a.5- Abuse of the authority of representation:<\/p>\n
As is the basis for all legal transactions, the authority of representation must be used in accordance with the principle of honesty specified in Article 2 of the Turkish Civil Code. In case of abuse of authority, the representative will be liable. However, in order for a legal transaction made by abusing the authority to represent to be considered as unauthorized representation, the other party to the legal transaction, the third party, must know or should have known that the authority was abused.[9]\n[1] RE\u0130SO\u011eLU, p. 150.; \u0130NCEO\u011eLU, p. 47.<\/p>\n[2] AKYOL, p. 158.; \u0130NCEO\u011eLU, p. 47.<\/p>\n[3] YAVUZ, p. 407.<\/p>\n[4] UYGUR, p. 369<\/p>\n[5] AKYOL, p. 39.; RE\u0130SO\u011eLU, p. 150.; ESENER, Turhan, Comparative Law and Especially Turkish-Swiss Law of Obligations Based on Authority Representation, Ankara 1961, pp. 115-116.<\/p>\n[6] See AKYOL, \u015eener, Representation in Turkish Civil Law, Istanbul, 2009, p. 449; KOCAYUSUFPA\u015eAO\u011eLU, Necip\/HATEM\u0130, H\u00fcseyin\/SEROZAN, Rona\/ARPACI, Abd\u00fclkadir, Law of Obligations General Provisions Volume I, Law of Obligations General Provisions Volume I, 5th Edition dated 2010, 6th Edition, Same Edition, Istanbul, 2014, p. 720; SUNGURBEY, p. 9; see also VON TUHR, Andreas\/PETER, Hans, Allgemeiner Teil des Schweizerischen Obligationenrechts, Bd. I, 3rd A., Z\u00fcrich, 1979, pp. 399-400; GAUCH\/SCHLUEP, I, N.1373; ANTALYA, p. 400.<\/p>\n[7] See BELGESAY, Mustafa Re\u015fit, Representation in Legal Transactions, Istanbul, 1941, p. 133; AKYOL, p. 452-453.<\/p>\n[8] EREN, p. 448; KOCAYUSUFPA\u015eAO\u011eLU\/HATEM\u0130\/SEROZAN\/ARPACI, p. 721<\/p>\n[9] If the third party is in good faith, that is, does not know that the authority to represent is being abused, the represented party must be bound by the contract (TEK\u0130NAY\/ AKMAN\/ BURCUO\u011eLU\/ ALTOP, p. 243).","protected":false},"excerpt":{"rendered":"
In direct representation, also known as indirect representation, the representative acts on behalf of and on behalf of the represented. The direct results of the legal transaction carried out by the representative arise on the represented. Direct representation is regulated between Articles 32-40 of the Turkish Code of Obligations and in this type of representation, […]<\/p>\n","protected":false},"author":12,"featured_media":2193,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_joinchat":[],"footnotes":""},"categories":[45,1],"tags":[],"class_list":["post-11858","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog","category-makaleler"],"_links":{"self":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/11858","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=11858"}],"version-history":[{"count":1,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/11858\/revisions"}],"predecessor-version":[{"id":11861,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/11858\/revisions\/11861"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/media\/2193"}],"wp:attachment":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=11858"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=11858"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=11858"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}