ERGUN

INTRODUCTION:

The phenomenon of lending money, which we encounter very frequently in daily life relationships, is regulated under the heading “Loan for Consumption” in the Code of Obligations. Lending money is defined in Article 386 of the Code of Obligations.

Turkish Code of Obligations (TCO) Law No: 6098

ARTICLE 386 – A loan for consumption contract is a contract whereby the lender undertakes to transfer a certain amount of money or a consumable thing to the borrower, and the borrower undertakes to return a thing of the same kind and amount.

IF THERE IS A WRITTEN DEBT AGREEMENT BETWEEN THE PARTIES AND A REPAYMENT DATE IS SPECIFIED:

The legal route to be followed for the collection of the money given as debt varies depending on how the money was given to the other party. If there is a written debt agreement between the parties and the date on which the money given as debt will be repaid is stipulated in this agreement, the debt will become due (i.e., legally claimable) on the repayment date determined in the contract. In this case, after the repayment date specified in the contract has arrived, the lender may, if they wish, initiate non-judicial enforcement proceedings against the debtor or directly file a debt action. Of course, the parties to the debt relationship are also important here. If the parties to the debt relationship are merchants, the lawsuit to be filed will be a commercial case; therefore, as a legal requirement, it is mandatory to apply to compulsory mediation before filing a lawsuit.

THE PROCEDURE TO BE FOLLOWED IF THERE IS NO WRITTEN DEBT AGREEMENT BETWEEN THE PARTIES

In the ordinary course of life, money debt relationships are established verbally, entirely based on trust. In most cases, the lender sends the money to the other party’s bank account or lends it in cash. The first and most important condition for the collection of the money given as debt is being able to prove that the debt was given. If the lender cannot prove that they gave a debt, unless the other party legally accepts that they received the debt, the lawsuits to be filed will result negatively. If the lender sent the money to the borrower via bank transfer and wrote a statement indicating that it was given as a debt in the description, the bank transfer receipt is sufficient to prove that money was given to the other party as a debt.

(Decision of the Court of Cassation, 13th Civil Chamber, File No: 2019/342, Decision No: 2020/2100, Decision Date: 13.02.2020
“… The defendants’ attorney stated the necessity of explaining the cause of the debt or submitting evidence to be proven and requested the dismissal of the case. Regarding the plaintiff’s appeal against the dismissal decision rendered by the court of first instance … the 19th Civil Chamber of the Regional Court of Justice stated that ‘the plaintiff claimed that the money sent as a loan to the defendants’ deceased was not returned. The plaintiff sent the amount given as a loan via bank transfer. In this case, the burden of proof that the subject amount was sent as a loan lies with the plaintiff. The court of first instance rejected the case on the grounds that the transfer reason in the bank receipts subject to enforcement and the lawsuit could not be understood and no written document was submitted. However, it is understood that the bank receipt submitted to the file includes the statement “debt” in the transaction description, and that a legible copy of the same document was also submitted at the appeal stage; furthermore, in the bank’s response letter, the statements in the submitted account statements show that the transfer from … account to … account was made with the statement “debt”. Therefore, the decision of the court of first instance to dismiss the case on the grounds that the “debt” statement in the receipt does not prove the fact of lending is not appropriate. The filed case is an action for annulment of objection, the value in the enforcement file is shown as 56,000.00 TRY, and among the supporting bank receipts, it is seen that the description section of the bank receipt dated 15/10/2015 for 54,000.00 TRY includes the statement “debt”, while the description section of the receipt dated 21/09/2015 includes no statement; therefore, it must be accepted that the plaintiff could not prove their claim with respect to the claim of 2,000.00 TRY.’ Accordingly, the decision was partially accepted and the decision of the court of first instance was annulled; the defendants’ objection to the enforcement file numbered 2016/231 of the Bozüyük Enforcement Office was annulled with respect to the principal receivable of 54,000.00 TRY, continuation of the enforcement for this amount was ordered, and the claim exceeding this was rejected. The judgment was appealed by the defendants’ attorney. Upon examination made by evaluating the case file as a whole, since no inaccuracy was found in the decision of the Regional Court of Justice according to the applicable legal rules and especially the characteristics of the concrete case, it was decided that the appeal objections of the defendants’ attorney should be rejected and the decision should be upheld. RESULT: For the reasons explained above, the appeal request of the defendants’ attorney is rejected and the decision rendered by the Regional Court of Justice is UPHELD pursuant to Article 370/1 of the Code of Civil Procedure; the file is sent to the court of first instance and a copy of the decision is sent to the … 19th Civil Chamber of the Regional Court of Justice; the remaining fee of 2,802.44 TRY, detailed below, is collected from the appellant. Decided unanimously on 13/02/2020.)

THE DATE ON WHICH THE MONEY GIVEN AS DEBT MUST BE REPAID

If there is no agreement between the parties regarding the repayment date of the money given as debt, or if the agreed repayment date cannot be proven by legal means of proof, there is a particularly important issue that must be taken into consideration. Accordingly, if no date has been determined by the parties for the repayment of the debt, or even if a date has been determined but this repayment date cannot be proven, before initiating enforcement proceedings or filing a lawsuit, a notice must be sent to the debtor granting a payment period of six weeks. This six-week period is regulated in Article 392 of the Code of Obligations.

Turkish Code of Obligations (TCO) No: 6098

ARTICLE 392 – If no specific day or notice period has been determined for the return of the loan, or it has not been agreed that the debt will become due at the moment it is requested, the borrower is not obliged to return the loan until six weeks have passed from the first request.

If legal remedies are pursued directly without granting the debtor the statutory six-week period for repayment, the lawsuits to be filed will be dismissed for this reason. Since the six-week period is a mandatory provision by law in the return of debts for which no payment date has been determined, it is taken into consideration ex officio by the courts.

(Decision of the Court of Cassation, 13th Civil Chamber, File No: 2015/13496, Decision No: 2016/18868, Decision Date: 20.10.2016
“… The lawsuit concerns the annulment of the objection regarding enforcement fees and expenses, attorney’s fee, and interest in relation to the enforcement proceedings initiated due to the non-payment of the money given as a loan. According to Article 387 of the Turkish Code of Obligations No. 6098, ‘In a non-commercial loan for consumption contract, interest cannot be requested unless agreed by the parties,’ and again according to Article 392, ‘If no specific day or notice period has been determined for the return of the loan, or it has not been agreed that the debt will become due at the moment it is requested, the borrower is not obliged to return the loan until six weeks have passed from the first request.’ When the concrete case is examined; the plaintiff did not make any warning or notification to the defendant regarding the payment of the debt before the date of enforcement. Since the defendant became aware with the service of the payment order, the debt will become due at the end of six weeks from this date. In this case, it cannot be said that there is a debt that had become due as of the enforcement date. Due to the enforcement initiated prematurely, the plaintiff cannot claim attorney’s fees, enforcement fees and expenses, or interest. Therefore, while the court should have decided to dismiss the case in respect of all claims, establishing a judgment of partial acceptance as written is contrary to procedure and law and constitutes a reason for reversal.)

(Decision of the Court of Cassation, 3rd Civil Chamber, File No: 2024/248, Decision No: 2024/1217, Decision Date: 25.03.2024
“… Pursuant to Article 312 of the Code of Obligations No. 818 and Article 392 of the Turkish Code of Obligations No. 6098, which was in force as of the enforcement and lawsuit date; if no specific payment day or notice period has been determined for the return of the loan, or it has not been agreed that it will become due upon request, the money subject to the loan must be returned within six weeks from the first request. That is, if the matters written in the article text are not present, the borrower is not obliged to return the loan until six weeks have passed from the first request. Again, in the justification of the article, this matter is explained as follows: ‘… The phrase “must be returned within six weeks” used in Article 312 of the Code of Obligations No. 818 has been corrected in the Draft as “is not obliged to return the loan until six weeks have passed,” considering that the obligation to return becomes due six weeks after the lender’s first request …’ Furthermore, in the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 26.02.1975 and numbered 1973/409 E., 1975/242 K., it is explained as follows: ‘… Since Article 312 of the Code of Obligations accepts that the debt must be returned within six weeks from the first request, the starting date of the statute of limitations must be determined by adding six weeks to the date on which the debt was given …’ In this case, if no specific payment day or notice period has been determined for the return of the loan, or it has not been agreed that it will become due upon request, the receivable becomes due six weeks after the first request. Upon examination of the case file; it is understood that the plaintiff sent to the defendant’s account 2,900.00 TRY on 02.05.2019 with the description ‘money given for Burak bitcoin,’ 6,000.00 TRY on 21.05.2019 with the description ‘money given for Burak bitcoin,’ 10,500.00 TRY on 29.05.2019 with the description ‘Burak,’ and 5,000.00 TRY on 16.09.2019 with the description ‘Burak debt’; that the plaintiff first requested the return of the sent money in WhatsApp correspondence on 29.08.2019; that when payment was not made thereafter, the plaintiff requested it by a notice of the Ankara 30th Notary dated 16.09.2019 and numbered 9145; that the said notice was served on the defendant on 01.10.2019; that since payment was not made within three days from service, the plaintiff initiated enforcement proceedings against the defendant on 07.10.2019 with the Ankara 17th Enforcement Office file numbered 2019/13155 E. over a principal receivable of 24,400.00 TRY; that upon objection to the enforcement, an action for annulment of objection was filed; and that the court decided to dismiss the case on the grounds that the money subject to the lawsuit had to be returned within six weeks from the first request and that the lawsuit was filed without complying with the statutory period. As stated in precedent decisions of the Court of Cassation, from the phrase ‘The borrower is not obliged to return the loan until six weeks have passed from the first request’ in Article 392 of Law No. 6098, it is understood that the creditor must wait six weeks from the first request in order to file a lawsuit or initiate enforcement proceedings for the thing lent, that the receivable becomes due at the end of this period, that it is not possible to initiate a lawsuit or enforcement for a receivable that has not become due, that in a lawsuit filed for a non-due receivable there is no legal interest within the scope of subparagraph (h) of paragraph 1 of Article 114 of the Code of Civil Procedure No. 6100, and that this provision in the law relates to a condition of action; and it is understood that the dismissal decision rendered by the court is in accordance with procedure and law. For the reasons explained; the requests for appeal in the interest of law by the Ministry of Justice based on paragraph one of Article 363 of Law No. 6100 are REJECTED.)