Ercüment Erdem Att. Piraye Erdem

The Decision of the Court of Cassation of the Unification of Judgments holding that the Maturity Date on Time-Barred Bond Cannot Be Used as the Basis of Default

November 2020

Introduction

The Court of Cassation General Assembly on the Unification of Judgments (“Assembly”), through its decision dated 25.12.2019 and numbered 2019/1 E. and 2019/8 K. (“Decision”)[1], resolves differences of opinion of the Civil Chambers of the Court of Cassation by stating that the maturity date on the bond, which lost the status as the bill of exchange due to expiration of the limitation period and, thus, was used as preliminary evidence, cannot be taken as the basis of default in a prosecution, or in a lawsuit filed, based on the fundamental relationship. In this article, the concepts, differences of opinion, and justification of the Decision are examined.

A General Overview on the Concepts of the Decision

Bond

According to Turkish Commercial Code No. 6102 ("TCC"), negotiable instruments are such documents that the right they contain cannot be claimed separately from the document. The bond, which is one of the bills of exchange regulated under the title, Negotiable Instruments, in the TCC, is a bill that contains the promise to pay a certain amount unconditionally. The person who has issued the bond promises to pay the amount specified in the bond to the person who holds the bond, without any condition[2].

The date recorded on the bill regarding when the payment will be made represents the maturity. The maturity is one of the elements of the bond yet not mandatory. In fact, the legislator has provided that in the case where there is no record regarding the maturity on the bond, the bond will not become invalid, but will be considered as “a bond that has to be paid when seen.”  

Under the TCC, unless contrary to the nature of the bond, the provisions applicable to the policy regarding the statute of limitations are also applied to the bond. Accordingly, asserting the claims arising from the bond against the issuer is subject to a three-year statute of limitation from the date of maturity. In other words, since the bond is not subject to a lapse of time, it loses its qualification of the bills of exchange only if the issuer / debtor has made a plea of limitations. Therefore, even if the limitation period has passed, the holder of the bond may initiate enforcement proceedings based on the bond, or bring a lawsuit for receivables. On the other hand, if the debtor has raised a plea of limitation, the bond loses its qualification as the bill of exchange, and the holder of the bond loses the rights arising from the bill of exchange law. The bond, which loses the status of bill of exchange due to the plea of limitations, does not turn into an ordinary bill; it is deemed as the preliminary evidence within the scope of Article 202 of Code of Civil Procedure No. 6100 ("CCP") in accordance with the consensus of the doctrine and in practice[3].

Preliminary Evidence

Under Article 202 of the CCP, the preliminary evidence is a record showing that the existence of the alleged legal act is probable and given or sent by the person (or its agent) against whom it was alleged, even if it is not sufficient to establish complete proof. The record is defined as “Written or printed texts or documents, certificates, drawings, plans, sketches, photographs, films, visual or audio data and electronic data and other means of collection of information, which are convenient for proving the facts related to the dispute.” Preliminary evidence is a record that can prove the existence of the alleged legal act in a plausible, if not certain, manner. In the existence of the preliminary evidence, the court will render a decision, freely evaluating both the preliminary evidence, witness, and other discretionary evidence.

Default of the Debtor

The General Assembly of the Court of Cassation identifies default as “A reason for liability arisen based on certain conditions in case the performance is still possible and the debtor fails to fulfill the performance on time, which has become due and which the debtor cannot avoid.[4] The procedures and principles of the default of the debtor are regulated under Turkish Code of Obligation No. 6098 (“TCO”). As a rule, the debtor of a due debt defaults with the notice of the creditor inviting the debtor to execute. However, in accordance with the TCO, if the parties have determined the date upon which the performance will be rendered, and the performance has not been rendered on that specified date, the debtor is deemed to be in default without the need for notice. In other words, if the parties have set a definite maturity date, there is no need for notice of the default of the debtor.

Differences of Opinion between the Civil Chambers of the Court of Cassation

The 11th Civil Chamber of the Court of Cassation has argued that the bond which has lost the status of a bill of exchange due to expiration of the limitation period is considered as preliminary evidence if the signature on the bond is proven or accepted, and the claimant can prove the contractual relationship through witness and other evidence. If the legal act underlying the preliminary evidence is proven through other evidence, the contractual relationship between the parties will also be proven; therefore, the maturity date stated in the document will be considered as the default date unless proven otherwise. Emphasizing the consensus, both in the doctrine and in practice finding that the time-barred bond turns into preliminary evidence, the 13th, 15th and 19th Civil Chambers of the Court of Cassation defend that the maturity date on the bond loses the status of definite maturity and its binding effect among the parties, since the bond loses the qualification of the bill in terms of the law of evidence, and that if the fundamental relationship of the bond is proven through witness and other evidence, the debtor still needs to be defaulted by notice according to Article 117 of the TCO.

Justification

The Assembly underlines that the bills of exchange have the nature of abstract acknowledgement of debt and are independent from the underlying relationship, and points out that a second debtor-creditor relationship has arisen when one of the parties issues a bill of exchange and gives it to the beneficiary. In other words, the underlying relationship is subject to its own law, the bill of exchange is subject to its own law. Therefore, the maturity date on the bond is not the maturity of the fundamental debt relationship, but the maturity date of the debt relationship arising from the law of bill of exchange. However, when the debt arising from the bond, which has the qualification of a bill of exchange becomes due, the debt arising from the fundamental relationship also becomes due. In this case, the Assembly draws attention to the fact that the creditor may exercise his/her right to demand performance, arising from the fundamental debt relationship from the date of maturity, as well as his/her right to demand performance arising from the bond.

The justification also states that the right to demand performance based on the bond does not expire automatically when the limitation period regarding the bond has passed, even if the debtor has introduced the plea of limitation. Since the time-barred bond loses its status, it will not be possible to take advantage of the special opportunities recognized by the bills of exchange, and the time-barred bond will not even be accepted as an ordinary bill. At this point, the time-barred bond is accepted as the (written) preliminary evidence within the scope of the law of proof. Therefore, the holder, who cannot rely on the bond that has lost the status of the bills of exchange, may only benefit from the bond as the preliminary evidence in a lawsuit to be filed based on the fundamental relationship, and will need to prove his/her claim through witness or other evidence. If the debt subject to the bond is proven, the maturity date written on the time-barred bond will establish the due date of the fundamental relationship.

The rights reserved to the holder of the bill qualified as a bill of exchange are enumerated in the TCC on a limited basis. One of these rights is the interest, which starts from the maturity date. It is possible to charge interest from the date of maturity only if the bond qualifies as a bill of exchange. Pursuant to the Assembly, the maturity date on the bond that is accepted as the preliminary evidence may only be considered as the due date of the fundamental relationship and, therefore, the debtor needs to be defaulted in order to demand the interest. The Assembly defends that in order to place the debtor in default, the debt becoming due is not enough, a notice of default shall be sent, or a lawsuit against the debtor shall be filed, or other legal remedies pertaining to default shall be exercised. In fact, it is emphasized that the holder of the bond who does not act within the limitation period specific in the bill of exchange, not losing any rights, will cause unfairness.

Dissenting Opinions

Three dissenting opinions are presented in the Decision. In summary, these opinions defend that the subject of the dispute is related to the law of proof, that the bond losing the status of bill of exchange will not lose its evidential quality as preliminary evidence and, the maturity, which includes “a definite day” in the written document, which is confirmed, together with other evidence, meets the condition of “determining the date of performance of the debt together” and, therefore, the maturity date on the bond should be taken as basis of the default of the debtor.

Conclusion

The Assembly has concluded that the maturity date on the time-barred bond which, therefore, turns into the preliminary evidence, may not be taken as basis of the default in an execution proceeding, or in a lawsuit initiated based on the fundamental relationship, and unified the decisions to this end.

[1] The Court of Cassation General Assembly on the Unification of Judgments, numbered 2019/1 E., 2019/8 K., 25.12.2019 (OG, No. 31185, 14.07.2020).

[2] Kendigelen, Abuzer / Kırca, İsmail: Kıymetli Evrak Hukuku Genel Esaslar Kambiyo Senetleri, Istanbul, 2019, p. 161.

[3] Kuru, Baki: Hukuk Muhakemeleri Usulü C. II., Istanbul, 2001, p. 2302.

[4] The General Civil Assembly of the Court Cassation  , numbered 2004-19-357 E., 2004/360 K. 16.06.2004.