Check issuance
TTK's 780-823. Among its articles, a check issued as a means of payment is one of the promissory notes that have the characteristics of a negotiable instrument. Over time, various changes were made in the legislation regarding checks, and as a result of these changes, the Check Law No. 5941 was enacted. There is a general law-special law relationship between the Czech law and the Turkish Commercial Code, and the Czech law 1/2. In accordance with the provision stated in the article as "In cases where there is no provision in this Law, general provisions apply.", the provisions of the TCC continue to be applied exactly.
Cheque is almost the most used payment instrument in commercial life. It has a qualified money transfer relationship based on a check. As a result of this remittance relationship, a tripartite relationship is encountered in the issuance of checks. The parties to the tripartite relationship are the drawer, addressee and beneficiary. Article 782 of the Turkish Commercial Code stipulates that the addressee must be a bank by saying "For checks payable in Türkiye, the addressee can only be a bank."
PREREQUISITES FOR ISSUING A CHECK
We briefly mentioned that a check is an economic means of payment. The realization of this function assigned to the check depends on the drawer having a deposit against the check in the bank and the conclusion of the check agreement. As a matter of fact, TCC 783/1 ''For the issuance of a check, the drawee must have a provision allocated to the order of the drawer and there must be an express or implied agreement between the drawee and the drawer that the drawer will have the right to dispose of this provision by issuing a check. However, if these provisions are not complied with, the validity of the promissory note as a check will not be affected.''.
So it is possible to divide the prerequisites of the check into 2.
1-Reciprocity:
Reciprocity is the first condition for a check to be issued. This provision for the payment of the check does not have to be in cash. The drawer may leave savings other than cash to the bank in return. The important thing is that this provision is available at the time the check is presented to the addressee. "According to Article 783/3 of the Turkish Commercial Code No. 6102; "The person who issues a check that is not fully or partially equivalent to the addressee is obliged to pay 10% of the amount of the check that remains dishonored, and also compensates the holder for the damage he suffers as a result." It must be kept at the addressee bank." Supreme Court of Appeals 12th H.D.
2-Czech Agreement:
As can be understood from the article of law mentioned above, in order to issue a check, the existence of a check agreement is required in addition to the provision. The check agreement is made between the drawer and the drawee and is subject to freedom of form. The law even allows the agreement to be made tacitly. However, 2/3 of the Check Law. Article "The check account cannot be opened without the signature of the person concerned, his attorney or his legal representative." , contrary to the Turkish Commercial Code, stipulates that the agreement must be made in writing. After the check agreement, the drawer is given a checkbook.
CHECK THAT DOES NOT MEET PREREQUISITES
Article 780 of the Turkish Commercial Code lists the elements of the check, as we will discuss below. A check that contains these mandatory elements will retain its status as a check even if it does not meet the conditions of reciprocity and check agreement.
CHECK FORMATION CONDITIONS
Mandatory Elements
Article 780 of the Turkish Commercial Code lists the mandatory elements of the check one by one. These elements;
1- Check Word: In order for a bill of exchange to be called a check, the word "check" must be present in the text of the bill.
2-Unconditional transfer for the payment of a certain amount: The money transfer in the check should not be subject to any conditions. If the payment of the check is subject to any conditions, it will lose its feature as a bill of exchange. In a decision of the 12th Civil Chamber of the Supreme Court of Appeals,"According to Article 780/1-b of the Turkish Commercial Code (Article 692/3 of Law No. 6762); it is one of the formal elements of the check that it includes an unconditional transfer for the payment of a certain amount, and a document that does not contain this issue cannot be accepted as a check." He used the expressions.
PRICE IN CHECK
The amount to be paid on the check must be clearly stated. The price does not necessarily have to be written in TL. The price is written in both words and numbers, and if there is a difference between them (between numbers and words), the price written in words prevails.
INTEREST ON CHECK
Interest cannot be recorded on a check; if it is, it is deemed not recorded.
3- Addressee:
It is mandatory to specify the addressee on the check. According to Turkish legislation, the addressee must be a bank.
4-Payment Location:
It is mandatory to indicate the place of payment on the cheque. If there is no clarity regarding the place of payment, the place shown next to the trade name of the addressee will be deemed the place of payment in accordance with TCC 781/2.
"The request is for a provisional lien request based on a bill of exchange. Since the receivables arising from bills of exchange are in the nature of receivables to be sought, the provision of Article 89/1 of the Turkish Code of Exchange No. 6098 (Article 73/1 of the Code of Exchange No. 818) does not apply to these receivables. The creditor of the bill of exchange requests a provisional lien for his receivables specific to the bill of exchange in his own place of residence. However, if there is more than one debtor at the place of residence of the debtor, at the place of drawing of the check, if there is no clear place of payment, the place shown next to the trade name of the addressee is considered the place of payment. If there is no such clearing and no other record, the check is deemed to be the place of payment at the place where the addressee's head office is located.) Supreme Court of Appeals 11th H.D 2014/6764 E.
5-Issuance Date and Place:
It is mandatory to indicate the date and place of issue on the check. These terms are used to calculate the submission period. Checks that do not contain the place and date of issue will not be accepted as valid. As a matter of fact, in a decision of the 12th Civil Chamber of the Supreme Court of Appeals, '' In accordance with Article 780 of the Turkish Commercial Code No. 6102; The place of issue is one of the elements of the shape of the check. Again, article 781/3 of the same Law. In accordance with the article; A check whose place of issue is not shown is deemed to have been issued at the place written next to the drawer's name. For the stated reasons, it is not possible to accept the place of issuance, which is the formal element of the check, as the place determined by the authorization agreement. As explained above, HMK 77/1. There is nothing against the law in pursuing proceedings at the Ankara Enforcement Directorate regarding the debtor who objects in accordance with the article. In that case, the court must reject the objection to jurisdiction and make a decision based on the outcome of the debtor's other complaints and objections by examining their merits.
The date on the check must be stated as day, month and year. The date can be specified in numbers or words. It is essential that the date be a possible date. The Supreme Court of Appeals is of the opinion that if a date that is not in the calendar related to February or months that do not have 31 days is omitted, the date of issuance is recorded as the last day of the month and the document is valid. It is enough to have the date on the check. It doesn't matter where it is written. Again, issuing the check with a later date does not affect the validity of the check.
The place of editing should be clearly shown. It is accepted by the Supreme Court that it is possible to write it in abbreviated form, provided that the place of regulation is clearly understood. In addition, if there is more than one place of issue, the check will be deemed invalid. It is necessary and sufficient to specify the place of regulation as a civil place such as a province, district, village or sub-district. Using the street name will cause the check to be invalid.
What Happens If the Place of Issuance Is Not Clearly Shown on the Check?
'' A check whose place of issue is not shown is deemed to have been issued at the place written next to the drawer's name.'' TTK art. 781/3
6-Signature of the Organizer:
The signature of the drawer is one of the validity conditions of the check. If it is missing, the check will be considered invalid. The signature must be on the front of the check and include the entire text. It is not necessary to have the name and surname of the drawer.
SIGNATURE AUTHORITY ON CHECK
The law prohibits real persons from issuing checks through representatives. Real persons cannot issue checks through a proxy. For legal entities, the authorized representative of the company must sign the check. The person who signs a check even though he is not authorized to do so will be personally liable for the check. In this regard, the 12th Civil Chamber of the Supreme Court of Appeals ''Case; It concerns the request for cancellation of the proceedings specific to check-based bills of exchange. In the concrete case, it is understood from the documents available in the file that the debtor, who is being pursued by the creditor, is not an official of the company that was the drawer as of the date of issuance of the promissory note, and that the said company is represented by a joint signature, and the parties have no claim to the contrary. In the response petition submitted by the creditor's attorney, it was claimed that the debtor would be personally responsible for his signature in accordance with Article 678 of the Turkish Commercial Code, and it was stated that prosecution was carried out against the debtor who was claimed to be the owner of the signature in accordance with the provisions of unauthorized representation. In this case, it is natural that the opposing debtor, who signed the promissory note on behalf of the drawer company even though he had no authority to represent it and did not deny the signature, would be personally responsible for the signature he made. Since the debtor acting as an unauthorized representative will be liable as the drawer of the check, there is no illegality in pursuing him through a lien specific to bills of exchange. In that case, the court has a decision saying "The debtor's objection must be rejected."
LACK OF CHECK ELEMENTS
A promissory note that does not contain one of the elements shown in Article 780 is not considered a check, except for the cases stated in the second, third and fourth paragraphs.
(2) If there is no clearance on the check, the place shown next to the trade name of the addressee is considered the place of payment. If more than one place is shown next to the trade name of the addressee, the check is paid at the first place shown. If there is no such clearance or any other record, the check is paid at the place where the addressee is headquartered.
(3) A check whose place of issue is not shown is deemed to have been issued at the place written next to the drawer's name.'' TCC Article 781 In the article of the Law, the sanctions for missing elements of the check are clearly listed.
While listing the elements of the check above, we have stated what the sanctions will be in case of missing elements and what method will be followed, so we do not feel the need to make further explanations.
WHAT IS A BLACK CHECK?
Article 818 of the Turkish Commercial Code stipulates that the regulations regarding the policy will also be applied to cheques. When the article is examined, it will be seen that the legislator has made it possible for the beneficiary to fill in some of the mandatory items that must be included in the check.
Blank check, or also known as white check, means a check whose elements are not complete. There are no restrictions in the TCC regarding the minimum elements that must be included in the open bill. For this reason, the presence of the drawer's signature is considered sufficient for a blank cheque.
WHAT IS A MERCHANT'S CHECK?
Article 1 of the Czech law lists the control of the informal economy among the aims of the law. Separating the checks of merchants and non-merchants serves to achieve the purpose of this article. In addition, it can be easily observed in practice that there is more trust in merchant checks. Differences between merchants' checks and non-merchants' checks are explained in Articles 2/2, 2/3, 2/6 of the Check Law. It is regulated in the articles. Related articles;
Check Law 2/2. Article: "Banks shall obtain the "Risk Center" and criminal record records of those who wish to open a checking account regarding the prohibition status and "photo ID cards, passport or driver's license samples, residence documents, tax identification numbers, trade registry records of merchants, and trade registry records of tradesmen and craftsmen, in order to determine their clear identities, and keep them for ten years from the date of closure of the account in case the checking account is closed." is obliged. Persons whose residence is abroad must inform the bank of their address in Türkiye. In case the check is not fully or partially covered, the addresses of the check issuer known to the bank are given to the bearer upon his request.''
Check Law 2/3. Article: ''Checking account cannot be opened without the signature of the person concerned, his attorney or his legal representative. The person who wants to open a check account or to be given a check book from his existing check account must make a written statement to the bank each time whether he is a merchant, tradesman or craftsman and that there is no prohibition on him to issue a check or open a check account. In the declaration to be submitted on behalf of legal entities, it is also stated that persons who serve in the management body of the legal entity, are its representatives or authorized signatories are not prohibited from issuing checks and opening a check account. "The addressee bank checks that checking accounts requested to be opened in the name of a real or legal person, those who serve in the management body of capital companies, and company officials registered in the trade registry are not prohibited from opening a check account, and maintains the result of the inquiry regarding the absence of a ban. If the banks open a check account with the persons to whom they have opened a check account, and if the check account owner is a legal entity, the transaction authorities notified by the legal entity as of the account opening date, in accordance with the Turkish Commercial Code No. 6102 dated 13/1/2011. "It records it in the system specified in the third paragraph of Article 780."
Czech law 2/6. Article: "The principles determining the printing method of check books are regulated by the communiqué to be published in the Official Gazette by the Central Bank of the Republic of Turkey, after taking the opinions of the Ministry of Finance, the Banks Association of Turkey and the Participation Banks Association of Turkey. Checks to be issued to merchants and non-merchants and checks to be issued to bearer are printed in a clearly distinguishable manner. Separate checking accounts are opened for checks to be issued to bearer, where only transactions related to these checks are processed. For checks to be issued to bearer, bearer checkbook pages must be used. The phrase "bearer" appears printed on the check leaves.
WHAT IS A CREDIT CHECK?
The offset check regulated in Article 805 of the Turkish Commercial Code is a check issued by the issuer by writing "will be credited" or a similar phrase on the front of the check. Clearing check serves the purpose of preventing the check from being paid in cash.
''The issuer or holder of a check can prevent the check from being paid in cash by writing "will be credited" or a similar phrase on the face of the check. In this case, the check can only be paid in cash by the addressee by crediting the account, clearing, or transferring the account. These records replace payment.''TTK 805/1
NO LIABILITY RECORDING AND ENDORSEMENT PROHIBITION IN CHECK
TTK 685/1. Pursuant to the article, the endorser may impose a ban on endorsement on the check. The prohibition of endorsement does not cause the check to lose its foreign exchange status. There is no legal obstacle to issuing such a check. It is possible to transfer a check with a ban on endorsement by way of assignment of receivables. As a matter of fact, in a decision of the Supreme Court of Appeals, "The transfer of a check registered as non-negotiable is possible only through the assignment of receivables." In this case, although the non-negotiable clause on the face of the check does not affect the nature of the bill of exchange of the check, it prevents its transfer through endorsement.He stated as follows.
EDITOR'S RESPONSIBILITY RECORD
If a record is placed on the check stating that the drawer will not be responsible for non-payment of the check, this record will be invalid.
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