26 NEWSLETTER 2021 prohibition for lacking a justification.7 In addition, Arıcı criticized the prohibition on assigning undue receivables as capital to the company, which was explicitly adopted with Article 342 of the TCC, because (i) such a regulation was not encountered in the model laws, (ii) the uncertainty, which is argued to arise from the risk of non-collection of the timed receivables when due, can be eliminated with a valuation report, (iii) the risk of non-collection is also born by the three quarters of cash capital with a maturity of twenty-four months, and (iv) in case the real value of the undue receivable is determined with the valuation report, there will be no reservations in terms of the equal treatment principle.8 Performance of Capital Contribution by Set-off The discussion on performing the capital contribution through assignment of a receivable from a third party to the company, as a capital in kind, are explained above. However, the nature of capital contribution (whether cash capital or capital in kind) is also controversial among both scholars and practitioners when the shareholder sets off her receivable from company with her capital debt to the company. Before turning to a discussion of the nature of the capital commitment, it should be noted that the fact that the shareholder is allowed to set off her due cash receivable from the company against her capital debt to the company could be derived from the opposite meaning of Article 200(2) of Execution and Bankruptcy Law no. 2004. The relevant paragraph states that in case of bankruptcy of the shareholders of the joint stock company, the unpaid capital commitments cannot be set off against the debts of the company. Therefore, it is understood that in cases where the shareholder is not bankrupted, the shareholder can set off her cash receivable from the company against the remaining capital debt to the company.9 The Circular of the Ministry of Customs and Trade, dated 27.09.2013 and numbered 50035491.449-7326 regarding “Contributing Receivables to the Company as Capital in Kind” in joint stock 7 Kendigelen, p. 197. 8 Arıcı, Vadeli Alacağın Sermaye Olarak Konulması Yasağı, p. 328 ff. 9 Tekinalp (Poroy/Çamoğlu), N. 1046.
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