Akademik Veri Yönetim Sistemi
ISTANBUL HUKUK MECMUASI, cilt.79, sa.2, ss.379-408, 2021 (ESCI)
Joint-stock companies usually honor the principle of freedom in transferring registered shares. The restriction on the transfer of these shares is rare and only possible if permitted by law and to the extent permitted by law. One of the restrictions to transferring non-quoted registered shares is the right to apply for the escape clause of the company, regulated in article 493/1 of the Turkish Commercial Code. This right provides the company the ability to reject the approval request by proposing the transferor purchase the shares subject to their real value and transfer them to the account of itself, other shareholders, or third parties at the time of application. Applying for the escape clause is at the discretion of the company; however, this authority is not unlimited. One limit on the authority is the prohibition of abuse of this right (Turkish Civil Code 2/2). This study determines which cases using the right to apply for the escape clause violate the abuse prohibition considering the decision of the Swiss Federal Court, dated 31.7.2019 and numbered 145 III 351. The purpose of the right to apply for the escape clause and the reasons it can be used by a company will be revealed. Then, the consequences of abusing the right to apply for the escape clause are examined by the type of sanction and the nature of the case to be filed.