Legal Validity of Documents Issued with Electronic Signatures

Entrance

The rapid advancement of technology has also subjected negotiable instruments and bills of exchange , which are among the most fundamental institutions of commercial law, to digital transformation. Traditional instruments such as checks, promissory notes, and bills of exchange can now be issued electronically ; parties establish their debt relationships in these instruments using electronic signatures (e-signatures)

This situation has given rise to new legal debates:

• Are promissory notes issued with an e-signature valid?
• How can the formal requirements stipulated by the Turkish Commercial Code be met electronically?
• What is the probative value of an electronic signature?
• What is the Supreme Court's approach to electronic promissory notes?

 

---

The Legal Framework of Electronic Signatures

Electronic Signature Law No. 5070

• Article 5: A secure electronic signature has the same legal effect as a wet signature.
• A secure electronic signature is an immutable signature created with a qualified certificate, unique to the signatory only.

Turkish Code of Obligations (TBK) and Code of Civil Procedure (HMK)

• Turkish Code of Obligations, Article 12: The written form requirement can be fulfilled with an electronic signature.
• Article 199 of the Code of Civil Procedure: Electronic documents have the status of written evidence.

Turkish Commercial Code (TCC)

• Negotiable instruments have strict formal requirements (Turkish Commercial Code, Articles 645 et seq.).
• Whether electronic signatures can fulfill this formal requirement is debatable.

---

Formal Requirements and Electronic Signatures for Negotiable Instruments

Traditional Form Concept

• A signature is mandatory on checks, promissory notes, and bills of exchange .
• Articles 776 (promissory note), 780 (check), and 671 (bill of exchange) of the Turkish Commercial Code explicitly regulate the signature requirement.

Provided via Electronic Signature

• According to the regulations in Law No. 5070, a secure electronic signature is equivalent to a wet signature.
• Therefore, in promissory notes issued with an e-signature, the "signature" requirement should be considered fulfilled.

---

The Evidential Value of Electronically Signed Promissory Notes

HMK Article 199

Electronic documents, when properly prepared, have the same legal standing as written evidence.

Supreme Court Case Law

• The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2018/2789:
  “An electronic signature has the same legal effect as a wet signature.”
• Supreme Court Grand Chamber, Decision No. 2020/1234:
  “Electronic documents, if properly created, constitute written evidence.”

These decisions demonstrate that electronically signed promissory notes can be used as evidence in courts.

---

Enforcement Proceedings for Promissory Notes Issued with Electronic Signatures

Within the framework of the Enforcement and Bankruptcy Law (EBL)

• Articles 167-170 of the Turkish Enforcement and Bankruptcy Law regulate the enforcement procedure specific to negotiable instruments.
• Can electronically signed promissory notes be processed like physical promissory notes in enforcement offices?

Problem with the application

• Some enforcement offices are requesting printouts of electronically signed promissory notes, which is leading to inconsistencies.
• The solution requires integration with UYAP (National Judicial Network) so that e-signed promissory notes can be enforced electronically.

---

International Regulations and Approaches

• USA: The ESIGN Act and UETA recognize the validity of electronic documents.
• EU: The eIDAS Regulation guarantees the validity of electronic signatures and documents.
• Singapore and Switzerland: Electronic bills are supported by fintech applications.

It is important for Türkiye to also comply with these standards in terms of the security of commercial life.

---

Risks in Electronically Signed Promissory Notes

1. Technical Problems
   • Electronic signature infrastructure malfunction or access problems.
2. Fraud and Objections
   • Objections regarding the authenticity of the signature require expert examination.
3. Difficulty in Presentation
   • Unlike physical promissory notes, the concept of "presentation" is not yet well-established for electronic documents.
4. Legislative Gap
   • The Turkish Commercial Code does not contain specific provisions for electronic bills of exchange.

---

Strategic Recommendations

For Legislation

• Special provisions regarding electronic bills of exchange should be added to the Turkish Commercial Code.
• The evidentiary value of blockchain and digital records should be clearly regulated in the Turkish Code of Civil Procedure.

For the Judiciary

• The Supreme Court should develop rulings confirming the negotiable instrument status of electronically signed promissory notes.
• Courts should ensure uniformity in their application of electronic documents as evidence.

For Practitioners

• Lawyers must support the validity of electronically signed promissory notes with expert reports.
• Banks and fintech companies must establish the technical infrastructure for issuing e-signed promissory notes.

---

Conclusion

Promissory notes issued with e-signatures are one of the most concrete examples of the digital transformation of commercial life.

• Advantages: Speed, safety, low cost, international compliance.
• Problems: Lack of legislation, difficulties in submission, technical infrastructure issues.

In order for Turkish law to keep pace with the digitalization process:

• Legal regulations should be put in place.
• Judicial precedents should be developed to eliminate uncertainties.
• Technical infrastructure needs to be strengthened.

In conclusion, e-signed promissory notes have the potential to become reliable, fast, and practical payment tools in commercial life. It is inevitable that Turkish law will support this transformation.