June 2006
FINANCIAL LEASE AGREEMENT – LEASING
In our present commercial life, by means of financial
lease agreement, in other words leasing while investment
costs of businessmen are lessened leasing has been practiced
in a large scale. In such agreements the lessee chooses
the fixed equipments and demand credit from a leasing company
for this transaction. The leasing company uses) the credit
to buy the equipment chosen by the lessee, appropriate
for the usus of him pays the rent by a contract acted with
the company, for the fixed equipment.
Leasing has
been defined in Financial Lease Code no: 3326 as “It is a contract whereby
the lessor releases the possession of a fixed equipment bought from a third party
or acquired in another way, based on the demand and preference of the lessee,
on condition that to be benefited in anyway from it and a certain amount of lease
to be paid and the contract not to be terminated for a certain period of time.”
In leasing
the party that leases should absolutely be a joint-stock company. In case the
company is situated abroad and hasn’t got any branch in Turkey, then the
contract has got to be confirmed by the Ministry that the Undersecretariat of
Treasury and Foreign Trade is bound. Leasing can only be acted for four years.
That the leasing to be under for years, is subject to the permission of above
mentioned official organizations only for certain fixed equipments whose values
are to be determined by Undersecretariat of Treasury and Foreign Trade.
When a leasing
terminates the equipment whose propriety belongs to the lessor company has to
be given back. However, in many cases at the end of the period, a right of purchasing
is given to the lessee for a small price. Besides even the contract may contain
a close that the equipment will directly belong to the lessee at the end of four
years.
Leasings are
bound to very strict formalities. They’re absolutely got to be confirmed
by a Notary Public situated in the lessee’s abode. As for the leasing concerning
real estates, it is obligatory for them to be registered to Land registry where
the real states are situated. Unless this prerequisite that the registration
is carried out the leasing will be valid. By means of this formality even if
the owners of the real estate changes the lessee can bring forward the leasing
against the new owners. Besides, on account of the bankruptcy of the leasing
company the equipments that are the subject matters of the leasing cannot be
legally converted into cash.
A leasing
company has got to insure the equipment that is the subject matters of the leasing
before delivering it to the lessee but premiums are to be paid by the lessee.
The lessee is under the obligation of using the equipments with duly caring appropriate
to the leasing. Otherwise he will have acted against the leasing. In such a case
the lessor will have the right terminating the leasing. However before the termination
due to the unproper behavior of the lessee, the lessor has to acknowledge a certain
dead-line to the lessor and notify him that way. In case the unproper behavior
of the lessee is kept on, then the leasing can be terminated. Can a lessee hire
the equipment that is a subject matter of the leasing to a third person? There
isn’t such a possibility. But such a close can be annexed to the leasing
that the lessee himself can hire the equipment to somebody else.
If one of
the parties behaves unduly that will cause the dissolution of the leasing then
the leasing will have ended effecting the future. In this case the right of claiming
compensation according to the Article 96 of Turkish Code of Obligations will
rise.
As an example,
if the lessee who acts against the conditions of the leasing, the lessor not
only can claim a certain amount of compensation but the unpaid rents for the
rest of the agreement.
Financial
Lease Agreement that has been regulated in accordance with
the international practice provides important facilities
to our businessmen who would like to invest, benefiting
from the above mentioned Law-no 3326.
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