Ercüment Erdem Att. Ozgur Kocabasoglu

Presentation of a Cheque and Force Majeure Pursuant to the Law No. 7226 on the Amendment to Certain Laws

April 2020

Law on the Amendment to the Certain Laws (“Law”) numbered 7226 and dated 25.03.2020  entered into force through publication in the Official Gazette dated 26.03.2020 and numbered 31080 within the context of measures taken against the New Coronavirus Disease (“Covid-19”) outbreak affecting the entire world, as well as our country. Among other provisions, the Law stipulates administrative and legal measures concerning the Covid-19 outbreak. Below, Provisional Article 1 of the Law is examined within the scope of Cheque Law No. 5941 ("Cheque Law") and Turkish Commercial Code No. 6102 ("TCC") and, in particular, as to whether a force majeure that is specific to cheques as regulated in the TCC may be applied.[1]

Provisional Article 1 of Law No. 7226

With Provisional Article 1 of the Law, the following regulation is made:

PROVISIONAL ARTICLE 1– (1) In order to prevent any loss of judiciary rights as a result of the Covid-19 outbreak observed in our country;

  1. all time limitations related to the arising, use or termination of a right, including presentation and limitation periods, periods of prescriptions and mandatory administrative application … starting from 13/3/2020 (including this date),
  2. starting from … suspended until 30/4/2020 (including this date). These time limitations start from the day following the day the dwelling period ended. As of the date the dwelling period started, the periods that have fifteen or fewer days left, extends fifteen days starting from the day following the day the dwelling time ended. If the epidemic continues, the President may extend the suspension once, not exceeding six months, and narrow the scope for this period. These decisions are published in the Official Gazette.

With this Provisional Article, time limitations in the civil and administrative judiciary are suspended until 30.04.2020, starting from 13.03.2020. With the President’s Resolution on the Extension of the Dwelling Period for the Purposes of Prevention of Loss of Judicial Rights dated 29.04.2020 and numbered 2480 entered into force through publication in the Official Gazette dated 30.04.2020 and numbered 31114, the dwelling periods, except time limitations regarding mandatory administrative application remedy anticipated in Public Procurement Law No. 4734, are extended, to be reconsidered in case spread risk of pandemic disappears earlier, starting from 01.05.2020 (including this date) up until 15.06.2020 (including this date). However, the word “presentation” mentioned in the Article, and the expression “All time limitations related to the arising, use or termination of a right,” are interpreted in the doctrine by some authors,[2] as if the presentation period of a cheque is also within the scope of the Provision and, therefore, between 13.03.2020 and 15.06.2020 (including these dates) the presentation of a cheque is not possible, or such a presentation shall not bear any legal consequences. When this point of view is accepted, between the dates mentioned above, cheque bearers will not be able to present cheques to banks; even if they do present cheques, the banks shall not pay their money, nor shall the banks conduct necessary transactions if the cheque is dishonored, pursuant to Article 3/4 of the Cheque Law, and the shall not pay the dishonored cheque fee of 2.225.-TL, which is the minimum amount to be paid in accordance with Article 3/3 of the Cheque Law. Also, since cheques cannot be presented, the delay penalty of the bank due to non-payment of the cheque, despite being covered by the account pursuant to Article 3/7 of the Cheque Law, and the liability penalty of the bank official who does not pay the amount of the cheque pursuant to Article 7/5 of the Cheque Law, shall not arise. Again, in accordance with Article 793/I of the TCC, the endorsement made after the end of the presentation period shall not give rise to the provisions with regard to the assignment of claim, the withdrawal of the cheque by the drawer pursuant to Article 799 of the TCC, and the right of application of the bearer pursuant to the provisions of Article 808 of the TCC, as well as the following provisions.

If it is accepted that the presentation period of a cheque is suspended with the Provisional Article of the Law (unless a separate resolution regarding the extension is made by the President), the suspended presentation period will continue from the day following the day the dwelling time ended, the presentation period of the cheques that has fifteen or fewer days left  as of 13.03.2020 shall end at the close of business on 15.06.2020. Accordingly, cheques that have 15.06.2020 or after as their written issuance date (unless a separate resolution regarding the extension is made by the President) shall not be presented to the addressee bank in order to be paid prior to the issuance date pursuant to Provisional Article 3/5 of the Cheque Law. Cheques that bear the date of 13.03.2020, or the date of presentation was a previous date, but has not yet ended on 13.03.2020, are within the scope of Provisional Article 1 of the Law.[3] It is, hereby also necessary to make a distinction in accordance with Article 796 of the TCC. Cheques with ten days’ presentation period pursuant to Article 796/1 of TCC will be presentable until 30.06.2020 (including this date), extending 15 days from 15.06.2020.

For cheques with one month and three months presentation period pursuant to Article 796/3 of the TCC, and if there is more than fifteen days to the end of the presentation period as of 13.03.2020, the presentation period shall be suspended, and shall continue as of 15.06.2020. Otherwise, 30.06.2020 (including this date) will be the last presentation date.

As it is clear, in the initial provisions of the laws, the enforcement framework of the law is drawn under the "purpose and scope" Article of the law, and this Article gains importance, especially in its interpretation. However, due to the “omnibus bill” nature of the Law, no such provision has been stipulated. From this perspective, in the introduction part of the Article, the expression, “in order to prevent loss of judiciary rights due to the presence of the Covid-19 outbreak in our country,” is included. Therefore, if the verbal interpretation of the Article is taken as a basis, it can be concluded that the proposed regulation is limited to the prevention of loss of judiciary rights.

In our opinion, the periods listed under subparagraphs (a) and (b) under the first paragraph of Provisional Article 1 shall halt until April 30, 2020 (including this date). The scope of the expression, “All the periods regarding the arising, use, or termination of a right, including filing a lawsuit, initiating enforcement proceedings, application, complaint, appeal, warning, notification, including presentation and limitation periods, period of prescriptions and mandatory administrative application periods,” stipulated in the Article is limited to the judicial proceedings and the duration of proceeding. The presentation period of cheques and securities, in general, cannot be accepted as a period related to judicial proceedings and, therefore, these periods shall continue. The necessary transaction for a dishonored cheque shall be made.

Force Majeure considering Cheques

It can also be considered that there is no need to make a separate regulation regarding the presentation in Provisional Article 1 of the Law, since a force majeure cause specific to cheques is included in the TCC. Pursuant to Article 811/1 of TCC, “If the presentation of a cheque or its protest or an equivalent determination could not be realized within the period determined by law due to an insurmountable obstacle, such as a state legislation, or any force majeure, said periods extend.” The purpose of the provision is to prevent the bearer from any loss of right and opportunity to obtain his/her receivables by extending the periods during the force majeure due to the fact that the bearer could not perform the actions and procedures that are legal burdens, such as the presentation. As is accepted by the doctrine, this provision does not bear any consequences for the drawer.

The “state legislation” or “force majeure” as listed in the Article is representative of "insurmountable obstacle," and does not qualify as numerus clausus.[4] However, the impossible obstacle to overcome must be objective. This is understood both from the general definition made by the doctrine of the force majeure expression stipulated in the Article, and the provision of the 811/5 of the TCC, which states that “The facts solely about the bearer, or the person assigned by the bearer to present the check, to protest, or to make an equivalent determination, are not considered to be force majeure.”[5]

It is necessary to evaluate whether the Covid-19 outbreak is an obstacle that is impossible to overcome objectively in terms of the bearer. It can be said that even though the banks have restricted their working hours, or have closed certain branches, since they continue their activities, there is no situation arising from banks preventing presentation, which constitutes an insurmountable obstacle for the bearer.

However, according to Circular No. 6235, issued by the Ministry of Internal Affairs on 21.03.2020, since citizens aged 65 and over, with low immune systems, chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease, and those using drugs that disrupt the immune system, and those under 20 years of age, are under lockdown, with respect to bearers described, above, and there may be an objectively insurmountable obstacle in the context of the "state legislation," as specified in Article 811/1 of the TCC. In our opinion, the Covid-19 outbreak can also be described as a force majeure for bearers who are not subject to the above-mentioned administrative restriction, pursuant to Article TTK 811/3 of the TCC, and cheque bearers are required to present their cheques to be paid without delay after the force majeure disappears and, when necessary, they must protest or make an equivalent determination pursuant to 811/3 of the TCC.

Again, in order to be able to withstand the force majeure that is specific to the cheque stipulated in the TCC, it is obligatory for the cheque bearer to notify the reason of the force majeure pursuant to Article 811/2 of the TCC to his endorser, and to record this notice on the cheque, or in its amalgamation, and to sign it by writing the location and date.

Provided that it is before the end of the presentation date pursuant to Article 811/4 of the TCC,  if the bearers’ force majeure continues more than fifteen days following the day s/he notified the debtor before him pursuant to Article 811/2 of the TCC, the application rights may be used without cheque presentation and protest, or any other equivalent determination.

Conclusion

In light of the assessment made, above, it is considered that Provisional Article 1 of the Law regulates the suspension of judicial time limitations, it does not suspend the presentation period with regard to securities, it does not prevent conduction of “unrequited” transaction in terms of cheques, and the cheque bearers may benefit from the provision of Article 811 of the TCC.

[1][1] Sarıkaya, Sinan: 7226 Sayılı Kanun’un Geçici 1. Maddesinin Çeklerin İbrazı ve Karşılıksız Çek Suçuna Etkisi, blog.lexpera.com.tr (Access date: 25. 04.2020).

[2] Deynekli, Prof. Dr. Adnan: “7226 Sayılı Kanunla Yapılan Düzenlemenin Sürelere Etkisi Yönünden Değerlendirme,” 1 April 2020, https://app.e-uyar.com/blog/index/478d6362-2806-49be-a6c2-89976b382794;

Paslı, Dr. Ali: “COVID-19 Salgınının Çek Hukukuna Etkisi: Güncel Koşullar Sürerken Çek İbrazı Mümkün Müdür?” 31 March 2020,  http://www.ticaretkanunu.net/ali-pasli-covid-19-salgininin-cek-hukukuna-etkisi-guncel-kosullar-surerken-cek-ibrazi-mumkun-mudur/; Dural , Dr.Ali: “COVID-19 Salgını Nedeniyle Yürürlüğe Giren 7226 Sayılı Kanun’un Geçici 1. Maddesinin Çek Açısından Sonuçları” 9 April 2020, https://blog.lexpera.com.tr/covid-19-salgini-nedeniyle-7226-sayili-kanunun-cek-acisindan-sonuclari/ (Access date: 25.04.2020)

[3] Dural, ibid.

[4] Öztan, Fırat: Kıymetli Evrak Hukuku, 2nd ed., Ankara 1997. Poroy, Reha / Tekinalp, Ünal: Kıymetli Evrak Hukuku Esasları, 22nd ed., Istanbul 2018.

[5] Dural, ibid.