When enforcement proceedings begin, another company is now operating at the debtor's address, a different name is on the sign, but the essence of the business has not changed. A third party makes an attestation claim, saying "we took over the commercial enterprise, the attached goods belong to us." This picture is an increasingly common reality in enforcement practice and directly affects whether the creditor can recover their right.
This field, where an attestation claim intersects with a commercial enterprise transfer argument, will - if it is not read correctly in both its legal and factual dimensions - either leave the creditor empty handed or pave the way for a genuine transfer to be wrongly held void.
Legal Framework
Under the Enforcement and Bankruptcy Law, an attestation claim is the assertion by a third party of ownership or another right in rem over goods attached while in the debtor's possession. If the attachment took place outside the debtor's registered address - that is, while the goods were in the possession of the third party - the presumption of ownership operates in that person's favour and the burden of proof shifts to the creditor. According to the settled case law of the Court of Cassation, rebutting this presumption requires the creditor to present strong and convincing evidence.
The transfer of a commercial enterprise, on the other hand, is the transfer of an enterprise's elements as a whole, within the framework of the relevant provisions of the Turkish Commercial Code. The Code requires the transfer agreement to be made in writing and to be registered with and announced in the trade registry. The relevant article of the Turkish Code of Obligations governs the transferee's liability for debts and, for the transferor, a two-year joint and several liability running from the notice or announcement.
These two legal fields - attestation and commercial enterprise transfer - collide precisely at the point where an attempt is made to reach the debtor's assets.
How Does the Commercial Enterprise Transfer Allegation Arise in Practice?
The debtor company has become effectively dysfunctional because of accumulated debts; the business is meanwhile carried on by the same or related persons through a different legal entity. The attachment takes place at the operating address of the new company, and that company makes an attestation claim, saying "we took over the business, these goods belong to us."
From the creditor's side, two distinct lines of attack can be opened. The first is that the transfer does not meet the procedural conditions: if registration and announcement were not made, the transfer is not legally complete. The second is that the transfer is in fact a collusive sham (simulation): the business was transferred only in appearance, with the aim of concealing assets from the debtor.
The Court of Cassation's approach to this matter offers a consistent framework. While the courts investigate whether the procedural conditions were met, they also examine whether the transfer is a genuine economic transaction or an artificial mechanism set up with intent to harm the creditor. The fact that the transferee company and the debtor company share common shareholders is not on its own treated as proof of a collusive sham. However, where the two companies present the appearance of a single, intertwined structure in terms of title, ownership structure, operating address and line of business, the courts tend to reject the attestation claim.
Critical Legal Issues
Whether registration is constitutive or declaratory
The relevant provision of the Turkish Commercial Code does not contain a clear rule on this point; for this reason it is disputed whether registration with the trade registry has a constitutive or merely a declaratory effect on the legal validity of the transfer. The prevailing view in practice and the decisions of the regional courts of appeal hold that registration is constitutive in nature. The practical consequence is this: if registration was not made, the transfer has not legally taken place, the goods still belong to the debtor, and the attestation claim must be rejected on the merits.
Joint and several liability where registration is held to be declaratory
Even in the scenario where the court treats registration as declaratory, the creditor is not left unprotected. Under the relevant provision of the Turkish Code of Obligations, the two-year forfeiture period provided for the transferor does not begin to run unless notice or announcement is made. The debtor remains jointly and severally liable for the business debts even if a transfer was made; the transferee is likewise the new bearer of those same debts.
The distinction between an organic link and a collusive sham
Elements of an organic link between two companies - similarity of ownership, the same sector, the same address - do not on their own prove a collusive sham. The Court of Cassation has repeated this principle in many of its decisions. To prove a sham, a concrete picture must be built: commercial book records, Social Security Institution (SGK) records, the tax-address history and attachment reports can all be parts of that picture.
Frequently Asked Questions
A third party said "we took over the business" - what should I do?
The first step is to question whether the transfer meets the procedural conditions. The trade registry records should be checked for whether registration and announcement were made, and any special transfer documents should be reviewed. If those documents are missing or incomplete, the argument that the transfer is absolutely void can be set up as the primary line of defense.
Registration was done but there is no announcement; what happens then?
Even if registration was done, the two year forfeiture period for the transferor does not start until the announcement obligation is fulfilled. The debtor remains jointly and severally liable, and this liability forms an independent argument supporting rejection of the attestation claim.
Is proof of an organic link enough?
No. The existence of an organic link alone does not produce a result before the court. In addition, concrete evidence showing that the two companies were in fact managed as one and acted with intent to conceal assets must be reflected in the file.
What happens if I lose the attestation case?
Acceptance of the attestation claim results in the lifting of the attachment. For this reason, gathering evidence and building the full argument framework before the case is critically important.
Conclusion
A commercial enterprise transfer allegation in an attestation claim can leave a creditor unfairly empty handed if it is not analyzed correctly in both its legal and factual dimensions. Even a transfer that complies with the procedural conditions and whose registration and announcement are complete does not leave the creditor helpless; on the contrary, it brings legal liability for the transferee.
In the great majority of situations encountered in practice, however, registration was not made and announcement never took place, yet an attestation claim is asserted. In that situation, the law is on the creditor's side. You may contact us to assess your file or to obtain advice on this matter.
Are You Looking for Legal Support on an Attestation Claim or Commercial Enterprise Transfer?
Bilkay Law Office provides advisory and litigation services in enforcement and bankruptcy law and commercial law. You may send your file for a preliminary assessment.
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