Newsletter-21

276 NEWSLETTER 2016 person upon the demand and selection of the lessee, in considera- tion of a leasing fee.” In accordance with the foregoing, under the financial leasing agreement, the lessor, meaning a financial leasing company, shall supply the asset from a “third person” upon demand of the lessee, and grant the possession thereof. Any interpretation made solely on a textual basis, made a structure consisting of three parties, namely, the lessor – lessee – third person, mandatory for financial leasing agree- ments. The majority view of the doctrine did not find such a narrow in- terpretation appropriate 1 . The provision was thought to be interpreted broadly and made it possible for the lessor to supply the asset subject to the financial leasing agreement from the lessee, even though the provision included the phrase “ third person. ” However, the Court of Cassation favored the narrow interpreta- tion. The Court of Cassation General Assembly of Civil Chambers resolved as follows, in its decision dated 27.12.1995 and numbered 12-787/1157: “The agreement concluded between … Institution and … JSC by Beyoğlu 19th Notary Public on 19.7.1991 is a form of “Leasing” agreement named as “sale and lease back”. The future leasing-taker (lessee) sells the asset under its ownership, to the Leasing giver and at the same time, leases it back. This way, a bilateral relation comes into question. Meanwhile, the future lease-taker is a manufacturer who sells the assets it produced to the lease-giver and, afterwards, leases them back in order to conclude subleasing agreements. However, apart from the obvious non-inclusion of these types of agreements within the scope of the law in the face of Art. 4 of the FLC, which stipulates the supply of the asset from a third 1 For instance, see . A. Altop , Özellikle Taşınır Mallara Yönelik Finansal Kiralama (Leasing) Sözleşmesi, Ankara 1990, p. 74; Ü. Tekinalp , Hukukî Yönden Finansal Kiralama Kanunu, Türkiye Sınai Kalkınma Bankası AŞ Finansal Kiralama Semi- neri, İstanbul 1985, p. 3, B. Sözer , Leasing (Finansal Kiralama) Sözleşmelerinde Mülkiyet Unsuru, BATİDER 1989, C. XV, S. 1, p. 61.