The Court of Cassation's Criteria for Proof in Check Cases
The Court of Cassation's Criteria for Proof in Check Cases
Entrance
Checks are one of the most frequently used negotiable instruments in commercial life. the Turkish Commercial Code (TTK) and the Check Law No. 5941 , checks provide trust and stability in commercial relations as a means of payment. However, issues such as bounced checks, allegations of forged signatures, defenses of lack of consideration, and disputes regarding presentation deadlines are the subject of numerous lawsuits in courts.
One of the most critical points in these cases is the burden of proof and the criteria for proof. The Supreme Court has developed numerous precedents regarding which evidence is valid and under what conditions proof is accepted in check cases.
The Importance of Proof in Czech Law
A check an abstract acknowledgment of debt . Therefore, the underlying relationship behind the check (e.g., a sales contract, a service contract) is not explicitly stated on the check itself. This creates a particular sensitivity regarding proof of debt.
Courts make decisions regarding the validity, presentation, insufficient funds, forgery, and claims of inadequacy of checks based on evidence. The Supreme Court, however, has developed criteria based on both law and case law in this regard.
Burden of Proof in Check Cases
General Principle
- Article 818 of the Turkish Commercial Code , the debt-creating nature of a check is abstract.
- Everyone whose signature appears on the check is jointly and severally liable for the debt.
- The burden of proof rests with the person who denies the debt arising from the check.
Defense and Proof of Lack of Consideration
- If the drawer claims that the check was issued without consideration, the burden of proof rests with them.
- However, proving that something is free of charge is not easy; it requires written documents or witness statements.
Denial of Signature and Proof
- Article 209 of the Code of Civil Procedure , if a signature is denied, its authenticity will be investigated.
- The Supreme Court bases its decisions on expert reports.
Supreme Court's Criteria for Proof
1. Original and Photocopy of the Check
- According to the Supreme Court, the original check constitutes evidence.
- A photocopy alone is not sufficient evidence. However, it can be used as proof if the other party does not deny the allegations.
- The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2015/12452 E., Decision No. 2016/4789 K.: "A judgment cannot be rendered based on a photocopy without the presentation of the original check."
2. Bank Records
- The presentation of a check, and whether it was paid or returned unpaid, is proven by bank records.
- Supreme Court 19th Civil Chamber, Case No. 2017/5432, Decision No. 2018/3215: Bank records constitute conclusive evidence.
3. Expert Reports
- Expert examinations are conducted, especially in cases involving allegations of forged signatures or falsification.
- The Supreme Court does not consider the expert report sufficient on its own; it states that the court judge must also evaluate it.
4. Witness Statements
- In Czech law, witness testimonies have limited value.
- It can be used as supporting evidence in claims of lack of payment.
- Supreme Court Grand Chamber, Case No. 2019/2156 E., Decision No. 2020/3456 K.: Witness testimony is insufficient unless supported by written evidence.
5. Documents Based on the Core Relationship
- The contract, invoice, and delivery note attached to the check are important documents.
- These documents constitute evidence in claims of gratuitousness or unauthorized use.
Proof in Bounced Check Cases
In the case of a bounced check, the holder proves the check's bounced status with a photocopy of the check and the bank's statement confirming the bounced check
- The holder bears the burden of proof: that the check was presented and returned unpaid.
- The drawer bears the burden of proof: that they have paid the check amount or have been released from liability.
The Defense of Lack of Consideration and the Criteria of the Supreme Court
- The defense of lack of consideration can only be raised against the first pregnant woman or against a woman who became pregnant in bad faith.
- Written documentation is required as proof.
- Supreme Court 11th Civil Chamber, Case No. 2014/4532, Decision No. 2015/6789: The defense of lack of consideration cannot be proven by witness testimony.
Proof in Forged Signature Claims
- Forensic documentation is examined to prove the case.
- The expert report is evaluated by the court.
- Supreme Court 11th Civil Chamber, Case No. 2016/7389, Decision No. 2017/4321: The allegation of forged signature cannot be dismissed without an expert report.
Proof in Disputes Regarding Presentation Period
- The claim that the presentation period has expired is proven by bank records.
- The holder must prove that they presented the document within the prescribed time.
- Supreme Court Grand Chamber, Case No. 2021/324 E., Decision No. 2022/765 K.: Bank records and the date of submission are taken as the basis.
Problems Encountered in Practice
- Filing a lawsuit based on a photocopy: When the original check is lost, the holder suffers the consequences.
- Conflicting expert reports: Differing reports complicate decision-making processes.
- The limits of witness testimony: In Czech law, the inadequacy of witness testimony is a subject of debate.
- Proving claims of lack of consideration: Finding written documents makes proof difficult.
Proposed Solutions
- Issuing checks electronically (e-checks) can prevent problems such as forgery and loss.
- Expert reports should be standardized.
- The Supreme Court's precedents should be made more systematic to increase predictability.
- The time limit for presentation and the means of proof may be extended to protect the holder.
Conclusion
In check cases, proof is critically important for the security of commercial life. The Supreme Court, by clearly defining the criteria for proof, both protects the rights of the holder and prevents the debtor from being wrongfully held liable.
The main criteria are the original check, bank records, expert reports, written documents, and, to a limited extent, witness statements. In cases of claims of lack of consideration or forged signatures, the burden of proof rests with the claimant.
In conclusion, the Supreme Court's criteria for proof demonstrate an approach that balances the principle of abstraction in check law with the need for security in commercial life.
Gozdenur Turna
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