Case for the freedom of the note

The concept of free of charge is a concept that emerged with an application that is not regulated in the TCC. The annulment action regulated in the Turkish Commercial Code is prepared for the loss of bills of exchange. However, the claim of free of charge represents a personal defense. Calling this case an annulment case is the result of a mistake.

Negotiable instruments contain abstract acknowledgment of debt. In other words, it is independent of the legal relationship that gives rise to the issuance of a bill of exchange. For this reason, the termination or invalidation of the basic relationship that caused the bill of exchange to be issued for any reason does not result in the cancellation of the bill. The promissory note continues to exist. However, in such cases, the promissory note debtor may file a negative declaratory action based on free of charge, based on the provisions of unjust enrichment.

The negative declaratory action takes its basis from Article 72 of the EBL. According to the relevant article, a negative declaratory lawsuit may be filed before and after enforcement proceedings.

REASONS FOR REMAINING FREE OF CHARGE

A bill of exchange remains free of charge in the presence of the following situations.

1- Invalidity of Basic Debt Relationship:

Article 27 of the Turkish Code of Obligations has made arrangements regarding the absolute invalidity of contracts. The relevant article states that "Contracts that are contrary to the mandatory provisions of the law, morality, public order, personal rights or whose subject matter is impossible are absolutely void." It is shaped like. Apart from these cases, incapacity is a reason for absolute invalidity. The contract made under such conditions will not be considered legally valid and the obligation to pay the price will not arise. A bill of exchange issued based on this relationship will naturally remain free of charge.

2-Expiration of Basic Receivable:

Payment of the receivable outside of a barter or foreign exchange relationship makes the bill free of charge.

3- Failure to perform the counter act at all or properly:

If the counter-obligation is not performed at all or as required, the promissory note debtor will have the right to withdraw from the contract or exercise his optional rights. If the debtor of the promissory note reneges on the contract, the promissory note will remain completely free of charge. If the right to discount the price is exercised, partial free of charge will be on the agenda. In both cases, the promissory note debtor may file a lawsuit claiming free of charge.

4- Willpower Injuries:

If a defect of will such as mistake, intimidation or deception is found while establishing the basic debt relationship, that is, the contractual relationship, the contract can be cancelled. If the contract is canceled, the debtor may file a lawsuit for free of charge since the bill will remain free of charge.

5- Gabin:

Again, while establishing the basic debt relationship, if the contract is signed under the conditions of liability regulated in Article 28 of the Code, the free of charge of the promissory note may come to the fore.

6- Deed of Remembrance:

Commemorative bonds are free bonds from the beginning. For this reason, if the gift deed is used contrary to its purpose, a lawsuit for free of charge will come to the fore.

THE PARTIES TO THE CASE FOR FREEDOM IN THE PROmissory Note

The claim of no cost is a personal defence. For this reason, it can only be claimed between the parties to a foreign exchange relationship.

Broker's Claim of Free of Charge

The drawer can only claim free of charge against the beneficiary. In order for the claim of free of charge to be directed to the holder, it must be proven that the holder acquired the instrument in bad faith.

As a matter of fact, in a decision of the Supreme Court "The claim of free of charge put forward by the plaintiff is a personal defense, TTK Article 687/1 states that "The person to whom an application is made for the policy cannot put forward against the applicant holder defenses based on the relations existing directly between the issuer or one of the previous holders; Unless the holder knowingly acted to the detriment of the debtor when acquiring the policy...", according to this provision, personal defenses will not be claimed against the holder as a rule, but if the holder knowingly acts to the detriment of the debtor while acquiring the policy, in this case, personal defenses can also be asserted against the holder and this regulation will also be applied to the checks, as it refers to Article 818 of the Turkish Commercial Code, and the plaintiff is the subject of the defendant's lawsuit. "Considering that he must prove that he took over the check knowing that it was free of charge and that a claim in this direction can be proven with all kinds of evidence, including witnesses; although the plaintiff's witnesses were heard, the witnesses did not state that the defendant knew that the check was free of charge at the time he took over the check, and therefore this issue could not be proven, so the decision to accept the case against the defendant was not deemed appropriate and required reversal." He ruled as follows.

Endorer's Claim of Free of Charge

Apart from this, the free of charge may arise from the basic relationship that causes the bill to be endorsed. Böylesi durumlarda kendisine başvurulan ciranta bedelsizlik nedeniyle menfi tespit davası açabilir. An endorser can only claim free of charge against the endorser who comes after him and with whom he has a fundamental relationship.

BONUS PROMISE PROOF

The claim of free of charge can only be proven with a promissory note. Proof cannot be made with witnesses. The debtor who claims to be free of charge must prove that the bill remains free of charge. The burden of proof is on the debtor.

"The burden of proof that the bills subject to the case remain free of charge belongs to the plaintiff, and this claim must be proven with written evidence in accordance with Article 201 of the Code of Civil Procedure No. 6100 (Article 290 of the Code of Civil Procedure)." Supreme Court 19th HD.

SUSPENSION OF NEGATIVE DETERMINATION EXECUTION

1-Negative Determination Case Before Enforcement Proceedings

In order for the promissory note debtor to file a negative declaratory action before enforcement proceedings, he must have a legal interest. Yargıtay bedelsizlik davalarında hukuki yararın var olduğunu kabul etmektedir. Because the debtor is threatened with a possible risk of prosecution. In enforcement proceedings based on bills of exchange, objecting to the debt does not stop the proceedings. For this reason, the debtor under threat of enforcement may request precautionary measures by filing a negative declaratory suit before the prosecution is initiated. After depositing a guarantee not less than 15%, the court may decide not to put the bill into enforcement proceedings and, if the proceedings have already started, to suspend it until the negative declaratory case is concluded.

2- Negative Determination Case After Enforcement Proceedings

If a negative declaratory lawsuit is filed after enforcement proceedings have been initiated, the lawsuit filed will not stop the proceedings. However, the debtor can prevent the money in the enforcement office from being paid to the creditor in return for collateral.

COURT WITH FREE BONDS

The court in charge of negative determination cases regarding the promissory note remaining free of charge is the commercial court of first instance. Consumer courts are responsible for consumer bonds.

As a matter of fact, the 12th Chamber of the Istanbul Regional Court of Justice, in a decision dated 2020, said: "The case is a negative determination case regarding the request to determine that the person is not indebted due to the promissory notes subject to follow-up. In the incident, a decision of lack of jurisdiction was given on the grounds that the commercial court had jurisdiction in the relevant case, and the court is not bound by this decision of non-jurisdiction, which became final without appeal by the parties, and the issue of duty regarding public order must be evaluated ex officio at every stage.

According to the evidence presented by the defendant, it has been determined that the bills in question are sequential bills issued in accordance with the Promise of Sale Agreement to which the plaintiff is a party, and it must be accepted that the plaintiff has the title of consumer and the transaction in question is a consumer transaction.

The consumer court has jurisdiction in this case filed by the plaintiff, who is a consumer, against the endorser. Accordingly, it is wrong for the court to make a decision based on the merits of the matter without an examination of the duty. "For the reasons explained, the court's decision should be annulled." He ruled as follows.