What is Affectio Societatis?

What is Affectio Societatis? | What Does Affectio Societatis Mean? | Mustafa Yolcu

What is Affectio Societatis?

Latin originating from,“affectio socialetatis“"It can be expressed as the common will of several legal or natural persons to unite into a single entity.".

According to the Turkish Code of Obligations and legal doctrine, the formation of a partnership requires the simultaneous presence of several elements: individuals, a contract, capital, a common purpose, and equal and active joint effort to achieve that common purpose (Affectio Societatis). Although not explicitly mentioned in legal regulations, affectio societatis, accepted through legal doctrine, is one of the essential elements in the formation of companies. While this element is predominantly evident in sole proprietorships, its implications are also present in corporations. For example, the obligation of partners to refrain from actions that prevent or hinder the achievement of the company's purpose can be cited.

In summary, the principle is that each company partner must fulfill their duties conscientiously and diligently, in accordance with their responsibilities. Even if not explicitly stated in the law, this principle is essential for companies. Violation of this principle will constitute a justifiable reason for the dissolution of the company or the expulsion of a partner. Each partner must play an active role in the company's affairs. Actions contrary to the company's objectives must be avoided, and the necessary care and attention must be given to the company's development and the achievement of its goals.

Relevant Court Decisions

SUPREME COURT 3rd LAW DIVISION E. 2015/17444 K. 2016/12349

Similarly, in a general partnership, the partners oversee and manage the partnership's affairs. Oversight and management are particularly important. working together for a common goal It is closely related to (affectio societatis). However, in a loan agreement where participation in the outcome is required, the lender generally does not have the authority to manage or supervise.

Supreme Court of Appeals, 3rd Civil Chamber, Case No. E.2015/5696, Decision No. K. 2015/18222

In legal doctrine, a general partnership is defined as an association of individuals established by contract and serving to achieve a common goal (Poroy/Tekinalp/Çamoğlu, Partnership and Cooperative Law, Istanbul 2003, p. 26). Based on this definition, the elements of a general partnership can be listed as: individuals, contract, shareholding, purpose, and affectio societatis (the element of working together to achieve a common goal) (Barlas, Nami, Contractual Relationships Based on General Partnerships, Istanbul, 1998, p. 13).

Court of Cassation, 3rd Civil Chamber, Case No: 2015/11269, Decision No: 2015/19675

Furthermore, there are certain indicators that distinguish a loan with participation in the outcome from a simple partnership. The most important of these is whether the person participating in the legal relationship through monetary performance shares in the loss or not. If there is sharing in the loss, it is a simple partnership; otherwise, it is a loan with participation in the outcome. In particular, if the recovery of the money is secured by a real or personal guarantee, the existence of a loan with participation in the outcome is even more certain. In a simple partnership, the partners supervise and manage the partnership's affairs. Supervision and management are closely linked to affectio societatis (working for a common purpose). However, in a loan with participation in the outcome, the lender generally does not have the authority to manage and supervise. However, granting the lender supervisory authority does not contradict the legal structure of a loan with participation in the outcome. Therefore, in cases where only supervisory authority is granted, and this authority is limited, the existence of a loan with participation in the outcome can be considered. Conversely, if the supervisory authority is broad, and especially if management authority is also granted alongside this authority, then this can be considered an indication in favor of a general partnership. Likewise, the nature of the relationship between the parties can be important in determining the regime to which the termination of the relationship is subject. In particular, the termination of the relationship by the death of a cash participant, the recognition of the right of termination, and other instances where personality comes to the forefront also indicate the existence of a general partnership. (General Partnership, Assoc. Prof. Dr. Oruç Hami Şener, Ankara, 2008, pages 122-125) In the concrete case, the contract does not include participation in losses, and the loaned money is secured by promissory notes. In other words, this is a loan agreement with participation in the outcome. Furthermore, the contract in question lacks the elements of common purpose and affectio societatis (working for a common purpose), which are essential elements of a general partnership.

For detailed information regarding your legal disputes, please contact us. Contact page.

You may also be interested in the following studies:;

Address: Nergis Neighborhood, Girne Boulevard No: 83, Floor 2, Apartment 2, Karşıyaka, İzmir

E-mail: info@efeshukuk.com

Phone: +90 534 415 52 56