T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
ISSUE NO: 12/2017-1140
DECISION NO: 2018/563
DATE OF DECISION: 28.3.2018
THE FACT THAT ONLY THE PHRASE “IT IS A GUARANTEE NOTE” IS WRITTEN ON THE FRONT AND BACK OF THE BOND ISSUED AS A GUARANTEE NOTE, BUT IT DOES NOT AFFECT THE QUALITY OF FOREIGN EXCHANGE AND THE TRACKING OF FOREIGN EXCHANGE IF IT IS NOT SPECIFIED WHAT IS A GUARANTEE.
At the end of the trial held due to the request for “objection to the debt” between the parties, the Ankara Western Executive (Civil) Court granted 25.02.2014 days and 2013/873 E. Decertification of the appeal and cancellation of the follow-up., 2014/159 K. upon request of the deputy creditor of the appeal examination of the decision No. 12, the Supreme Court of Cassation. The day of 08.05.2014 of the Legal Department and 11364/2014 of the E., 2014/13598 K. by his numbered decision,
(… Enforcement proceedings were conducted against the debtor by foreclosure on foreign exchange notes based on the bond, and the debtor applied to the enforcement court within the time limit and requested that the cancellation of the follow-up be decided with a bet, since the basis of the follow-up is the security note of the deed.
The presence of the phrase “collateral is a guarantee” in the bond, which is the basis of follow-up, does not require acceptance that the deed itself is a collateral deed, unless it is explained what is a guarantee in accordance with the established case law of our Apartment.
In a concrete case, the debtor cannot provide a written document provided for in Article 169 / a of the IIK regarding the promissory note and objections to the debt, valid from the point of view of follow-up law, as well as the documents on the sale of vehicles submitted to the file have not been accepted by the creditor, it is incorrect to decide on the acceptance of the request by the court instead of rejection…)
at the end of the retrial, the court resisted the previous decision by being overturned on grounds and the file was returned to its place.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
DECISION : The claim relates to an appeal against the debt.
The borrower of the collateral is subject to monitoring and commentary on the stock of equity stock that is present behind, a verbal agreement is made between the creditor on 04.08.2013 with the purchase of tractors, the tractor it is the price of 13.500,00 TL 20.10.2013 paid on …’s also the tractor until this date the official traffic-related transactions completed and ready for sale in the matter of an agreement between them to make the transfer go to the notary to obtain a warrant when they had been impounded and the tractor-mounted they realized that the sale has been made, claiming that his property still belongs to …, that it is not possible for him to pay for a vehicle that he cannot transfer, and that he has no debt, that there is no other commercial relationship with … other than the purchase of tractors, he asked that the cancellation of the follow-up be decided.
Bono attorney of the creditor’s rear face on the following basis only “is the deed of guarantee, the phrase” the very presence of his bill will not affect the qualification, according to the jurisprudence of the Supreme Court, a promissory note or the warrant stock as collateral given or to be able to move on with the question of why the equity collateral for the bond in a separate document the determination of the need for monitoring of stock subject to the warrant, but not to the plaintiff handed the money debt to the creditor as the equivalent of your client are arranged, arguing that the power of attorney dated 19.09.2013 is a power of attorney granted to Ihsan Yilmaz for selling the tractor at any price and conditions, the power of attorney is not mentioned in the deed, and the plaintiff is not a party to the power of attorney, he asked to be sentenced to compensation not less than 20% of what he will receive following the rejection of the complaint.
The Local Court has written the phrase “guarantee is a guarantee” on the back of the deed subject to follow-up and it has been decided to cancel the follow-up by accepting the complaint on the grounds that the deed subject to follow-up does not contain a promise to pay a certain price indifferently and unconditionally, and proving the existence of the receivable requires a trial.
Upon the appeal of the creditor’s attorney, the decision was overturned by the Special Department on the grounds described in the title section ABOVE.
776 Court of the Turkish Commercial Code No. 6102/B), clearly the act of “unconditional promise to pay a certain price…” to be specified, it must contain, in the face of “is the deed of guarantee” with the statement cannot be a stock’s unconditional, the existence of a claim, however, the trial results that will show up, moreover, the bonds of a non-stock back“is the deed of guarantee, the phrase” seeing the creditor deed also written this article if accepted, on the grounds that the decision was given without this bond, the bonds cannot be argued.
The decision to resist was appealed by the deputy creditor.
The resistance path from the front of the conflict with the General Board of the law; in the bonds ‘equity collateral is’ the record of “what the coverage in the absence of clarity about what is” the act of mucerretlik (abstraction) will not eliminate the nature, whether in the bill will be valid according to the result to be reached here, also adduced against such a claim must be proved in the manner of this bill at the points that are collected.
First of all, it should be emphasized whether the document on the basis of follow-up has the qualification of a foreign exchange certificate.
776 of the Turkish Commercial Code No. 6102. according to the article, Bono in the text of the deed “bond” or “emre written deed” in Word and deed in any other language than Turkish is written in that language the word which is used as collateral for bonds or promissory note emre written, unconditional promise to pay a certain fee, maturity, place of payment, to whom or to whose order payable to her name, date and place must include the signature of the issuer.
Within this framework, certainty (certainty) is one of the main elements of foreign exchange bills. Considering the ability to be treated, all elements of the bond must be clear, clear, obvious in a way that is not conducive to interpretation. As Öztan stated, the opening of policies and bonds is a transaction that “does not accept conditions” (Öztan, F.: The Law of Negotiable Instruments, 2. b., Ankara 1997, p.451). As a matter of fact, 777 of the Turkish Commercial Code. after stating that the bond that does not carry the mandatory elements of the article is not a bond, it has filled in the gaps that may arise by introducing a reserve rule of law on maturity, date and place of payment and has supported the principle of certainty in this way. Although it is accepted to set records such as avizo, price, interest, exemption from protest and authorization requirement, placing records that eliminate the qualification of a member or a specific person from a disease on a bond eliminates his qualification as a foreign exchange bond.
When the concrete event is evaluated in the light of the explanations and legal regulations made above;
The note dated 20.10.2013 with a maturity date of TL 13,500.00, which is based on follow-up, has the phrase “collateral is a bond” on the back side. If there is a collateral record in the bond, this statement does not eliminate the mandatory qualification of the bond, since it is not specified what is a guarantee. In order to be accepted that the bond is issued for collateral purposes, it is necessary to prove that what is provided as collateral is either a collateral note with the articles on the front or back of the bond or a separate document (provided for in Article 169/a of the IIK). As a matter of fact, the General Meeting of the Supreme Court of Law was held on 14.03.2001 and 2001/12-233 E., 2001/257 K.; 20.06.2001 day and 2001/12-496 E., 2001/534 K.; 24.02.2010 days and 2010/19-67 E., 2010/99 K. the same considerations were adopted in their numbered decisions.
As a result, while the local court and the General Assembly of the Law must comply with the decision to disrupt the Private Apartment adopted by the General Assembly, it is contrary to the procedure and law to resist the previous decision on the erroneous grounds.
Therefore, the decision to resist must be overturned.
CONCLUSION: It was decided unanimously on 28.03.2018 that the decision of the creditor’s deputy to resist the acceptance of appeals would be OVERTURNED for the reasons described in the decision to overturn the Special Chamber, if requested, the advance fee of the appeal would be returned to the depositor, the decision would be closed on the way of correction.
