Republic of Turkey
COURT OF APPEALS
12TH CIVIL DIVISION
13. 2013/16400
14. 2013/25100
15. July 4, 2013
CANCELLATION OF PROCEEDINGS (Claimed by Debtor Avalists Due to Lack of Spousal Consent, Pursuant to Article 584 of the Turkish Code of Obligations No. 6098 – The Check Subject to Proceedings Qualifies as a Foreign Exchange/The Debtors Are Guarantors/The Spousal Consent Requirement for Entering into a Commitment is Not Stipulated in the Turkish Commercial Code/The Complaint Must Be Rejected)
EXCHANGE QUALIFICATION (The Check Subject to Proceedings Qualifies as a Foreign Exchange/The Debtors Are Guarantors/The Spousal Consent Requirement for Entering into a Commitment is Not Stipulated in the Turkish Commercial Code) Not Issued/Complaint Should Be Rejected – Cancellation of Enforcement)
AVALIST’S LIABILITY (Cancellation of Enforcement) – The Check Subject to Enforcement Qualifies as a Foreign Exchange Act/The Debtors Are the Avalizers/The Avalist Is Liable Just Like the Person for Whom He Entered into the Commitment/The Spousal Consent Condition for Entering into a Commitment is Not Stipulated in the Turkish Commercial Code/The Complaint Should Be Rejected)
COMMERCIAL BUSINESS (Cancellation of Enforcement) – The Check Subject to Enforcement Qualifies as a Foreign Exchange Act/The Debtors Are the Avalizers – Since Negotiable Instruments Are Considered Commercial Transactions, Article 584 of the Turkish Commercial Code, Which is Considered a General Provision Under the Turkish Commercial Code, Does Not Apply to the Present Case, and the Complaint Should Be Rejected (Required)
6098/Article 584
6102/Article 3,702
6762/Article 3,614
SUMMARY: This case concerns the debtor avalists’ request to cancel the enforcement proceedings based on the lack of their spouses’ consent pursuant to Article 584 of the Code of Obligations. Upon examination of the check in question, it was determined that it was drawn up in accordance with the provisions of the Turkish Commercial Code, qualified as a bill of exchange, and that the debtors were the avalists. According to Article 702 of the Turkish Commercial Code No. 6102 (Article 614 of the Turkish Commercial Code No. 6762), the avalist is liable in the same way as the person for whom the avalist made the commitment. The Turkish Commercial Code does not require the spouse’s consent to enter into a commitment. Since negotiable instruments are considered commercial transactions according to Article 3 of the Turkish Commercial Code No. 6102 (and Article 3 of the Turkish Commercial Code No. 6762), Article 584 of the Code of Obligations, which is considered a general provision in contrast to the provisions of the Turkish Commercial Code, has no application in this particular case. Therefore, the court must reject the complaint.
CASE: Upon the creditor’s request for an appeal within the timeframe of the court decision dated and numbered above, the relevant file was sent from the court to the relevant court. After hearing the report prepared by Investigating Judge Neşe Yüksel for the case file and reviewing all documents in the file, the matter was discussed and considered:
DECISION: It is understood that the creditor initiated enforcement proceedings through a seizure specific to check-backed bills of exchange. The debtors’ avalists requested the cancellation of the proceedings due to the lack of consent from their spouses, in accordance with Article 584 of the Code of Obligations. The court ruled to cancel the proceedings due to the lack of written consent from the avalists’ spouses.
Upon examination of the cheque in question, it was determined that it was drawn up in accordance with the provisions of the Turkish Commercial Code, qualified as a bill of exchange, and the debtors were the avalists. According to Article 702 of Turkish Commercial Code No. 6102 (Article 614 of Turkish Commercial Code No. 6762), the avaliant is liable in the same way as the person for whom the obligation was entered into. The Turkish Commercial Code does not regulate the requirement for the spouse’s consent to enter into an obligation. Since negotiable instruments are considered commercial transactions according to Article 3 of Turkish Commercial Code No. 6102 (Article 3 of Turkish Commercial Code No. 6762), Article 584 of the Code of Obligations, which is considered a general provision in the face of the provisions of the Turkish Commercial Code, has no application in this particular case.
Therefore, while the court should have decided to dismiss the complaint, rendering a judgment based on written justification is inappropriate.
CONCLUSION: The creditor’s appeals were accepted, and the court’s decision was, for the reasons stated above, in accordance with Article 366 of the Enforcement and Bankruptcy Code and Article 428 of the Civil Procedure Code. It was unanimously decided on 04.07.2013 that the decision be REVERSED in accordance with its articles, the advance fee be refunded upon request, and the right to correct the decision be open within 10 days from the notification of the decision.