The capacity to be a guarantor of incorporations and limited companies

The principle of ultra vires which limits the capacity to acquire the rights of the commercial associations has been abolished with the new Turkish Commercial Code No. 6102. Thus, the capacity to acquire the rights of commercial associations will no longer be limited within the scope of the objects granted by their articles of association. Transactions to be made outside of objects of the association will be assumed as within the capacity to acquire the rights of the association, those associations will only not have the ability to make transactions which are appropriate for human beings by its very nature. However, with the article 371 of the new Turkish Commercial Code, the scope of powers of representation of the people authorized to represent the incorporations and limited companies has been limited within the scope of their objects; the validity of the transactions made by those companies are also determined considering the protection of the bona fide third parties. The capacity to be a guarantor of incorporations and limited companies will also be examined under the capacity of act of those companies because of the restrictions on the powers of representation with the new Turkish Commercial Code. Besides the capacity to be a guarantor of those companies will be determined also by considering the decisions regarding the issue given by the Supreme Court from past to present. As this issue has been discussed in doctrine, an opinion which the Supreme Court agrees with defends that the license to be guarantor is one of the companies' routine and habitual transactions and also, being a guarantor of a company is a necessity of the business life; therefore, the capacity to be a guarantor of those companies exists even if that is not included in the articles of association. Another opinion defends that, incorporations and limited companies are established in order to make profit and hence, the transaction of being a guarantor should definitely provide a benefit to themselves, only in this way, they can have a capacity to be a guarantor. Keywords: guarantee, incorporations, limited companies, commercial associations,capacity, ultra vires, capacity to be a guarantor.