Newsletter-21

57 COMMERCIAL LAW principle of good faith. 15 Furthermore, the scholars accept that the par- ties may determine the extent of the non-compete obligation; however, it should be limited in terms of at least one of the following criteria: location, object and time. Additionally, the parties shall not com- pletely waive, or illegally or unethically restrict their personal rights (Article 23 of the Civil Code, and Articles 26 and 27 of the TCO). 16 If the parties provided a non-compete clause in the agreement upon the transfer of the commercial enterprise, the extent of the obligation is determined pursuant to these provisions. Soma states that in the absence of the explicit provision in the agreement, the non-compete obligation remains in force until the risk created by the transferor is equal to the risk created by any third party. In general, a period of 2 or 3 years (maximum 5 years) is considered to be adequate 17 . In our case, all of the shares of the claimant company were trans- ferred, the company is operating mainly in the area of storekeeping in Antalya, and a non-compete clause that is limited to the same region and same activities during the term of the company’s license is pro- vided by the parties in order to protect the goodwill of the company in question. As the parties already provided an explicit provision, there is no need to apply, by analogy, the non-compete obligation regarding the transfer of the commercial enterprise, arising from the principle of good faith. Conclusion The non-compete clause, after the termination of the agreement, is provided for by the provisions regarding the employment contract under the TCO, and by the provisions regarding the agency contract under the TCC. The purpose of these provisions is to protect the infe- rior party (which is the employee in the employment contract and the commercial agent in the agency contracts); therefore, these provisions should not apply to the non-compete clauses after the termination of share transfer agreements in which the parties are in equal positions. 15 Koray Demir , Ticari İşletmenin devrinde Yeni Dönem, Eski ve Yeni Sorunlar; İÜHFM Volume LXXI, Issue 2, 2013; p. 111. 16 Mehmet Akçaal , İşletmenin Devri, Ankara 2014, s. 158, fn. 19. 17 Mehmet FatihArıcı , Ticari İşletmenin Aktif ve Pasifi ile Devri, İstanbul 2008, p. 84.