THE ROLE OF CHECKS AND LAWYERS IN TURKISH LAW

A VALUABLE DOCUMENT; A CHECK

Checks have become an indispensable part of commercial life. In the 1950s, the intensity of commercial activity increased, and merchants eventually faced difficulties with cash payments. One of the main reasons for this was that merchants conducted their business in different locations. A merchant in Kayseri might enter into a sales contract with a merchant in Ankara, agreeing on the delivery of goods, but payment problems could arise. For large payments, a merchant whose current financial situation is not favorable might postpone the payment to a later date. In today's developing economic environment, checks have become a necessity. Checks have replaced promissory notes and bills of exchange, which were in use for a long time. However, problems encountered in the application of bills of exchange have narrowed their scope.

A check is a negotiable instrument that authorizes and instructs the bank to transfer the relevant amount from the bank's checking account to the creditor. If a check lacks the necessary elements, it loses its validity. A check must be issued with a wet signature. Applications such as e-signatures will not be valid in place of a wet signature.

Only natural persons and authorized agents can issue checks. If the individual lacks legal capacity, issuing a check is not possible. Even if the agent's power of attorney states they can sign promissory notes, this does not cover negotiable instruments; the authorization must also specify that they are authorized to issue checks. If a check is issued through an unauthorized agent, only the unauthorized agent will be held liable. In the case of checks issued by legal entities, the binding nature of the check is limited to the scope of the company's business activities. In situations exceeding this, the legal entity may assert the claim against bona fide third parties. In this case, the person alleged to have issued the check may be held liable for unauthorized representation.

In joint-stock companies, legal representation requires the joint signatures of at least two board members. In limited liability companies, as a rule, all partners will act as managers and therefore must sign jointly. If a special situation exists, a partnership agreement must be drawn up to suit that situation.

Regarding the provisions applicable to checks, this is regulated in Article 818 of the Turkish Commercial Code. Here, attention must be paid to any provisions that are incompatible with the nature of the check. One of the most fundamental aspects is the absence of a maturity date on a check. Checks do not have a maturity date, and the relevant regulations cannot be considered as an integral part of the bill of exchange. A check is payable on demand, and if it bears a date of issue, payment is made on that date upon presentation. If a check is issued with the phrase "payable on demand" (payable on a specific day), this does not affect the legal nature of the check; however, this clause is considered null and void. Similarly, any date added to the check other than the date of issue is also considered null and void, and any clauses preventing payment do not affect the nature of the check and are deemed null and void.

The drawee of a check is the bank. No other drawee can be designated. A check can only be paid by the bank. Even if the check is presented to another branch of the bank, it will still be paid. However, it's important to note that a check cannot be presented to a different bank and paid. However, the holder can transfer it through endorsement or collection, and if the check is presented to a clearinghouse at another bank, this process will be considered valid. The primary reason for this is that the check may be presented at another bank or in a distant location. In such cases, payment can be made by delivering the check to a clearinghouse. It is accepted that the purpose of a check is to avoid cash payment, and the clearinghouse serves this purpose.

                        CHECK PRESENTATION PERIODS

There are established presentation periods for checks. If a check is not presented within these periods, the right to recourse is considered lost. In this case, the holder can file a claim for unjust enrichment against the drawer. It is important not to confuse the presentation period with the statute of limitations. This period is a forfeiture period. As mentioned above, the right to recourse is lost in this case. Therefore, presentation periods are of great importance. To briefly mention these periods:

If the check is payable where it was issued, 10 days

If payment is to be made in a location other than where it was issued, then 1 month

If the place of issuance and the place of payment are on the same continent but different continents, 1 month

For checks issued on different continents, there is a 3-month presentation period. There is also another separate regulation: checks issued in a European country and payable in a country bordering the Mediterranean are considered to have been issued and payable on the same continent. Therefore, in this case, a 1-month period applies.

                        EXPIRATION OF THE DEADLINE FOR SUBMITTING DOCUMENTS DUE TO FORCE MAJEURE

Presenting a check within its legal timeframe is a rule. However, the presentation period may be missed due to reasons beyond the holder's control. The most basic examples of this are natural disasters such as floods, fires, and earthquakes. If the check is seized by the public prosecutor's office, this is also considered a force majeure event. The holder is obligated to notify their endorser of the force majeure event as soon as possible.

The presentation period for a check begins after its issuance date. For example, a check issued on August 7, 2023, can be presented starting from August 8, 2023.

A check can be issued to bearer, to order, or to a specific person. In bearer checks, the nature of the check arises from the will of the issuer or from the law. In other words, if the check indicates that the amount is payable to the bearer, or if the phrase "or to bearer" is added even though it is issued for a specific person, it will be considered a bearer check. Endorsement is not considered in a bearer check; whoever holds the check is considered the legitimate holder. Therefore, the person holding the check is considered the legitimate holder.

If a check is not paid, a protest must be issued to the debtor. The check must be presented to the bank or check office within the prescribed time limit. The date of presentation must be written on the back of the check.

A sudden cancellation of a check is possible. Cancellation of the check is not possible within the presentation period. The drawer can cancel the check, but if it has been presented to the drawee bank, the bank is obligated to make the payment.

INVOLUNTARY LOSS OF A CHECK

If the check is lost by the drawer, the drawer can apply to the Commercial Court of First Instance in the place of payment to prevent the bank from making the payment. Lawsuits based on loss can be filed. In this case, payment of the check can be prevented, and a new check can be issued.

Checks are transferred by endorsement. The most common method in practice is writing "Pay to Ahmet ÖZASLAN, Mehmet YILMAZ (SIGNATURE)" on the back of the check.

According to the Turkish Commercial Code (TTK), the statute of limitations for a check is 3 years from the expiry of the presentation period. Under the repealed relevant law, this period was 6 months. The amendment extended this period to 3 years, making it easier for the creditor to recover their debt. The statute of limitations will also be interrupted in cases such as filing a lawsuit, notifying the lawsuit, or reporting the debt to the bankruptcy estate. After the interruption, the 3-year period will begin to run again. The most fundamental thing a creditor can do with a time-barred check is to use it as initial evidence in lawsuits. A creditor still has the right to sue and pursue enforcement through general attachment for a time-barred debt; however, these lawsuits and enforcement proceedings cannot continue if the debtor raises the defense of the statute of limitations.

In enforcement proceedings against a check, the original check must generally be presented. Otherwise, the enforcement officer should not proceed with the proceedings. However, a partial payment may have been made to the bank against a check presented by the creditor, and in this case, the bank will take the original check and give the creditor a photocopy. In this case, the creditor also has the right to pursue the claim with this photocopy.

MERT GÖKGÜL