The Practical Consequences of Requesting Partial Payment on a Check
The Practical Consequences of Requesting Partial Payment on a Check
Entrance
A check is one of the most important negotiable instruments in commercial life, providing security and speed. Regulated under the Turkish Commercial Code (TTK) and the Check Law No. 5941, a check is, as a rule, a means of payment that must be paid upon presentation. However, a situation frequently encountered in practice is when only a portion of the check amount can be paid, not the full amount. At this point, the holder's request for partial payment comes into play.
Partial payment of checks frequently leads to disputes between the parties; particularly regarding the liability of banks, the rights of the holder, the obligations of the drawer, and the Supreme Court's approach to the matter.
The Concept of Partial Payment on Checks
Definition
Partial payment is the payment of the available amount when the full amount is not available in the checking account on the date the check is presented.
Legal Basis
- Turkish Commercial Code Article 802: The holder cannot refuse partial payment.
- Czech Law, Article 3: The bank is obligated to pay the specified mandatory liability amount even if there are insufficient funds to cover the check.
- Principles of Debt Law: Partial payment does not completely extinguish a debt; only the portion paid is extinguished.
Holder's Right to Claim Partial Payment
If the holder presents the check to the bank and the bank has partial funds available:
- He has to take this part.
- The bank is obligated to pay the existing reserve.
- The holder can have a note on the check stating "payment made" for the amount paid.
The Court of Cassation's Opinion
The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2017/3456 E., Decision No. 2018/7321 K., stated:
“The holder cannot refuse an offer of partial payment; the bank is obligated to pay the available amount.”
Consequences of Making Partial Payments
1. Partial Termination of Debt
When a partial payment is made, the debt is extinguished only for the portion of the check amount paid. The drawer and other responsible parties remain liable for the remaining amount.
2. The Holder's Right of Recourse
The holder, for the unpaid portion:
- To the drawer,
- To the Cirantas,
- The party has the right to recourse against the guarantor.
3. The Bank's Responsibility
The bank is obligated to pay the existing reserve and the required liability amount. Otherwise, the bank will be liable for damages.
4. Interest and Compensation Claims
If a partial payment is made, default interest continues to accrue on the remaining amount. Furthermore, the holder may file a claim for damages incurred.
5. Criminal Law Aspect
Partial payment of a check does not absolve the drawer of criminal liability. The criminal case continues with respect to the unpaid portion.
Supreme Court Decisions Regarding Partial Payment
- The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2016/9312 E., Decision No. 2017/4325 K., ruled
: "The bank becomes liable if it fails to make the payment despite having partial funds available for the check." - The 19th Criminal Chamber of the Supreme Court of Appeals, Case No. 2018/4356 E., Decision No. 2019/8212 K.,
stated: "Partial payment does not negate the crime of issuing a bounced check with respect to the remaining amount." - The Supreme Court of Appeals, General Assembly of Judges, Case No. 2020/1456 E., Decision No. 2021/2342 K., stated
: "The holder cannot refuse a partial payment offer; if he refuses, he loses the right to claim the remaining amount."
Problems Encountered in Practice
- Holder's Claim of Refusal: In some cases, the holder claims that they do not accept the partial payment. However, according to the Turkish Commercial Code, there is no right to refuse.
- Banking Practices: Banks sometimes fail to fulfill partial payment obligations, leaving the holder disadvantaged.
- Relationship with Criminal Cases: Even if partial payment has been made, a criminal case can be filed for the remaining amount due to the bounced check.
- Compensation Calculations: Calculating the amount of compensation for the remaining amount owed after partial payment is a subject of debate.
Holder's Rights After Partial Payment
- They can initiate debt collection proceedings for the unpaid amount.
- They can file a debt collection lawsuit.
- They can claim compensation and interest.
- In a criminal case, he/she can continue his/her complaint as a plaintiff.
Drawer's Obligations
- Making a partial payment does not eliminate the entire debt.
- The responsibility for the remaining portion continues.
- Criminal liability remains valid for the uncompensated amount.
Proposed Solutions
- More effective supervision is needed to ensure that banks fully meet their partial payment obligations .
- To enable holders to exercise their rights more quickly, uniformity in practice should be ensured.
- It would be beneficial to more clearly regulate the relationship between partial payment and penalty liability .
- The widespread adoption of electronic check systems can minimize partial payment problems.
Conclusion
Partial payment of a check is one of the most debated issues in check law. The holder cannot refuse partial payment; the bank is obligated to pay the available funds. Partial payment only extinguishes the debt with respect to the amount paid; the holder's rights of recourse for the remaining amount are reserved.
Supreme Court rulings also support this view, clearly stating that partial payment must be accepted and that refusing it could result in the holder losing their rights.
In conclusion, while partial payment on a check may cause some practical problems, it is an important safeguard that allows the holder to collect at least part of their debt.
Gozdenur TURNA
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