Abstract
Article 1530 of the Turkish Commercial Code, which is applicable to the transactions on the procurement of goods and services between enterprises and the merchants, offers a system in order to protect the suppliers of goods and services against late payments. That system, which is different than the system regulated by the Turkish Code of Obligations, saves the creditor from the burden of sending a default notice that is required for the actualization of default, shortens the payment period and sets up the rule of paying at a higher rate of default interest as opposed to general commercial default interest.
I. INTRODUCTION
In order to protect the creditors that supply goods and services against late payment, a system, which is different than the method regulated under the Turkish Code of Obligations numbered 60981 (“TCO”), is set forth between the second and seventh paragraphs of Art.1530 of the Turkish Commercial Code numbered 61022 (“TCC”) for the transactions made between enterprises concerning procurement of goods and services. Special provisions are regulated with regard to the payment period, conditions for default of the debtor without notice and default interest under such paragraphs.
The restrictions in certain aspects to the parties’ ability to contract freely on behalf of the creditor, which are regulated under the provisions in question which are applicable to the transactions, which aim the procurement of goods and services, between the enterprises and the possibilities of allowance for the creditor of dragging the debtor into default without sending a notice and demanding a higher rate of default interest are discussed under this article by making comparisons with the provisions of the TCO3.
II. ORIGIN AND THE PURPOSE OF THE RELEVANT REGULATION
Paragraphs 2 and 7 of the Art. 1530 of the TCC are set forth in order to limit the long payment periods granted to the debtors, to prevent late payments and thereby to protect the creditor by grounding on the “Directive on Combating Late Payment in Commercial Transactions” numbered 2011/74 (“Directive”) which was enacted by the European Parliament and Council of the European Union5.
As it is stated under the Directive, most of the large and strong enterprises use late payment as a financing instrument. However, such instrument puts the suppliers of goods and services to strong enterprises in a difficult position, unsettles their financial positions by negatively affecting the cash flows, damages their competitiveness and profitability, and even leads them to bankruptcy. For this reason, the concept of “default”, the method of calculation of the payment period and the provisions regarding the default interest stipulated under the Art. 1530 are regulated pursuant to the fundamental principles of the Directive which introduces measures in order to prevent a domino effect in the market caused by the non-performance of the debts.
With regard to the transactions on procurement of goods and services between enterprises, the TCC Art.1530 aims to protect the manufacturers and the enterprises that supply goods and services to the economically strong enterprises, such as markets, supermarkets and hypermarkets6. That provision aims to provide the creditor, who has already fulfilled his obligation of procurement, with the opportunity to collect his debts quickly and without carrying out any procedural action 7.
III. FEATURES OF THE DEFAULT WITHOUT NOTIFICATION
A. Determination of the Date of Default
The Article 1530 of the TCC differs from the principles of the TCO with the special measures that were brought in terms of default in payment and determination of the payment period in the transactions made for the purpose of procurement of goods and services between enterprises8. For instance, whereas the date of the default in the TCO varies whether there is a specific term determined by the parties; pursuant to the Art. 1530 of the TCC, the date of the default varies whether there is a payment day or a payment period determined by the parties. The differences between the said provision of the TCC and the provisions of the TCO are explained in this section.
1. Default in Cases Where the Payment Date or the Payment Period is Determined Under the Agreement
Pursuant to the paragraphs 2 and 3 of the Art. 1530 of the TCC, although the creditor has fulfilled his procurement obligation arising from the law or the agreement, except for the cases where the debtor cannot be held liable for the delay, in case the debtor does not pay for its debt on the date or within the period specified in the agreement, the debtor shall go into default without any need of notice and the creditor shall get entitled to interest, even if the interest rate is not regulated under the agreement9.These regulations contradict with the general provisions of the TCO regarding the default of the debtor. Hence, in the said provisions of the TCC, the cases where the notification is not required for the debtor default is extended to cover all circumstances in which the payment date or the payment period is determined under the agreement10. However, Art. 117 of the TCO stipulates that in principle, the debtor of a due debt shall default with the notification of the creditor. However, according to the said article, as an exception, in the event that a specific term is determined by the parties, the results of the debtor default shall be applied without any need of notification. Therefore, in contrary to the Art. 1530/2 and 3 of the TCC, according to the TCO, the obligation of notification is not ruled out in all cases of which the payment date and the payment period is determined and also sending a notification is not obligatory for dragging the debtor into default in cases where the performance time for the debtor is determined as a specified or specifiable time in terms of the calendar. In case the performance date is attributed to an event of which the actualization time is uncertain, an unspecific term would be in question and in such case, notification would be obligatory for the debtor’s default according to the TCO. However, in such cases, the debtor shall default without notification with respect to the agreements which fall into the scope of Art. 1530 of the TCC11. In conclusion, according to the Article 1530/2 and 3 of the TCC, in cases where specific or unspecific term is determined under the agreement, the default shall occur automatically when the term is due.
Another provision, which is brought in order to protect the creditor regarding the situations where the payment date or period is determined by the parties, concerns the length of the performance period that is determined by the parties. The parties may determine the time of the performance of the pecuniary debt as a date prior the procurement of the goods or the services; or the same date of which the goods and the services shall be procured. Such determination would not be disadvantageous for the creditor. Nevertheless, the creditor should be protected in cases where the service or the goods are procured but the payment is postdated. For this reason, Art. 1530/5 of the TCC regulates a control system. Accordingly, the period for the payment, which is stipulated under the agreement by the parties, cannot exceed 60 days following the date of;
a. Receipt of the invoice or an equivalent request for payment, or
b. Receipt of the goods or services, or
c. Completion of the procedure for accepting or reviewing of the goods or services.
Therefore, although the payment period born out of the agreement on procurement of goods and services between enterprises is limited with 60 days pursuant to the provision in question, on the condition that it is expressly agreed in the agreement and provided that it is not grossly unfair to the creditor, it is regulated that the parties can determine a term of more than 60 days.. However, in situations where maximum payment period cannot exceed 60 days if the creditor, which is the supplier party, is a small or medium-sized enterprise (SME) or a producer in agricultural or animal sector and the debtor is a large sized enterprise.
Since Art. 1530/5 of the TCC is an imperative provision, agreements regulating contrary payment periods to such provision would be void. The sanction for contradiction with such provision and limits of accepting and reviewing periods are regulated under Art. 1530/4 of the TCC. The details of such regulation will be discussed in detail below.
2. Default in the Cases Where the Payment Date or the Payment Period Is Not Determined Under the Agreement
With respect to the agreements between two enterprises aiming procurement of goods and services, in cases where the payment day or the payment period is not determined or the determined term is considered invalid according to theArt. 1530/5 of the TCC, paragraph 4 of the said article shall be applied. According to the Art. 90 of the TCO, without prejudice to the substitute provisions of law, the debt becomes due when it arises and it can be claimed immediately under the agreements which do not regulate the expiry date. In addition, pursuant to the Art. 117 of the TCO, the debtor of a due debt shall only go into default with the notice of the creditor. However, small enterprises as the creditors supplying goods and services to the economically strong enterprises, would refrain from sending a notice concerning the due debt in order not to harm the trade relations. Therefore, the debtor shall not go into default and the default interest shall not be accrued. The Art. 1530/4 of the TCC releases the creditor from the burden of sending a notice, which is obligatory according to the Art. 117 of the TCO, ensures the automatic debtor default at the end of certain periods and therefore default interest is accrued to such pecuniary claim.
Article 1530/4 regulates the date of default, not determination of the term, and it brings a calculation method cording to the provision in question, default without notification shall occur at the end of the 30 days period of which the starting date varies pursuant to several possibilities and the creditor shall be entitled for default interest. Such possibilities are discussed below.which ensures to determine the date of default12. According to the provision in question, default without notification shall occur at the end of the 30 days period of which the starting date varies pursuant to several possibilities and the creditor shall be entitled for default interest13. Such possibilities are discussed below.
It should be emphasized that since there is no explicit prohibition, Art. 1530 of the TCC does not abolish the principal stipulating that the debtor shall be forced into default with the notice of the creditor, which is regulated under the TCO. After the debt is due, the creditor may push the debtor into default by sending a notice pursuant to the form requirement regulated under Art. 18 of the TCC, without waiting the expiration of the 30 days period regulated under the Art. 1530/4. For instance; according to Art. 234 of the TCO, in case there is no contradictory agreement, since a regulation indicating that the sale price shall be due once the buyer has the possession of the sold product exists, the creditor may force the debtor into default after the sold product is under his possession by sending a notice without waiting 30 days period14. For this reason, for the debtor to go into default after the fulfillment of 30 days period pursuant to the Art. 1530/4, depends on the fact that there is no sent warning before such period. Hence, granting an obligatory 30 days payment period to the debtor althoughthe debt is due would be against the purpose of protection of the creditor15.
a. Receipt of the invoice or an equivalent request for payment by the debtor
According to the Article 1530/4-a of the TCC, after the procurement of goods or services, at the end of the 30 days period following the date of receipt or an equivalent request for payment, the debtor shall go into default without notice. Thus, in the agreements which fall within the scope of the Art. 1530 of the TCC and in which the term is not determined, it is sufficient for the creditor, who has performed its obligation of procurement of goods or services, to send an invoice or an equivalent request for payment rather than sending a notice. At this stage, the invoice or the equivalent request for payment replaces the notice, however, unlike the notice, the consequences of default of the debtor do not arise immediately; such consequences arise following the 30 days period after the receipt of the invoice or the equivalent request for payment by the debtor16.
b. Uncertainty of the receipt date of the invoice or an equivalent request for payment by the debtor
As stipulated under the Article 1530/4-b, in case the date of receipt of the invoice or the equivalent request for payment by the debtor is uncertain, the debtor shall go into default without any need of notice, following the 30 days period after the procurement of the goods and services by the creditor. According to this provision, the debtor should have received the invoice but there should be an uncertainty with regard to the receipt date of the invoice. However, this provision is criticized for the situations where the creditor sends the invoice to the debtor in an extended period of time after the fulfillment of his obligation. Hence, the debtor shall lapse into default after 30 days following the fulfillment of the performance which has occurred long before the sending of the invoice which has an uncertain date, without any need of notice. Also, the debtor shall be obliged to pay default interest for not making a payment of interest with regard to an invoice which has not been sent yet and accordingly he has never seen.
c. Fulfillment of the obligations by the creditor after sending the invoice or an equivalent request for payment
Pursuant to the Art. 1530/4-c, in the event that the debtor has received the invoice or the equivalent request for payment before the procurement of the goods or the services, the debtor shall lapse into default at the end of the 30 days period following the procurement of the goods or services, without any need of notice. In another words, the 30 days period shall start on the date which the goods and services have been procured to the debtor. Hence, even if the invoice or the equivalent request for payment has been sent before, the obligation of payment will be due after the fulfillment of the obligations and the default shall occur within 30 days following that date without any need of notice. The maturity of the pecuniary debt before the delivery of the goods or services can only occur if it is explicitly determined under the agreement17.
d. Designation of an acceptance or reviewing period with regard to the procurement of the goods or cervices
According to the Art. 1530/4-d, in cases where the procedure of accepting or reviewing the goods or the service has been designated in the law or in the agreement, if the debtor has received the invoice or the equivalent payment request on the date the acceptance or review has taken place or before this date, the debtor is considered to be in default without any need of notice at the end of 30 days period following the date of which the acceptance or review has taken place. Hereunder, firstly, the acceptance and reviewing procedure shall be completed and afterwards 30 days period shall initiate. It should be underlined that in case the debtor has received the invoice or the equivalent payment request after the date of the acceptance or reviewing procedure has taken place, then Art. 1530/4/a shall be applied as principle and 30 days period shall be initiated on the date of which the invoice is received.
Although the reviewing procedure is stipulated as 2 and 8 days under the Art. 23 of the TCC, the parties can determine different periods for the acceptance and reviewing. However, Article 1530/4-d limits the periods which can be determined by the parties. Accordingly, in case the acceptance and reviewing period regulated under the agreement exceeds 30 days starting from the receiving of the goods and services and it is clearly unjust for the creditor, then the period of acceptance and reviewing is deemed as 30 days at most starting from the delivery date of the goods or services. However, it should be pointed out that since the determination regarding the acceptance and reviewing period is not a designation of term, the pecuniary debt will be due upon the delivery of the goods or services. In addition, the default will occur by adding 30 days to the acceptance and reviewing periods that are stipulated under the law or the agreement.
The whole period for acceptance and reviewing should not be taken into consideration while determining the date of the default and it should be accepted that the 30 days of default period shall initiate beginning from the date that the acceptance or reviewing period was actualized, which means actually completed.
e. Application of Art. 1530/4 of the TCC although the payment day or the payment period is determined under the agreement
Article 1530/4 of the TCC shall also be applied in cases where the parties have determined a specific term under the agreement but that term is contrary to the imperative content of the paragraph five of the said provision. In such case, the determined term shall be deemed void and the debtor shall go into default at the end of the periods stipulated under the Art. 1530/4 of the TCC without any need of notice.
It should be underlined that the restriction stipulated under the paragraph four shall be applied to the acceptance and reviewing period regulated under the paragraph five. Therefore, while calculating the default date in cases where the term is determined by the parties, the acceptance and reviewing period shall be added to the term by taking the restrictions regulated under the law into consideration.
B. Default Interest
As it is stipulated under the Art. 1530/3 of the TCC, the creditor of the debtor in default gets entitled to interest, even if it has not been regulated, from the date designated under the agreement or the day following the end of the payment period 18.
Imperative provision of the Art. 1530/6 stipulates that the provisions of the agreements regulating that the default interest shall not be paid or a low interest, which can be considered severely unfair, shall be paid, are void. In addition to the invalidity, another sanction for acting against this imperative provision is the application of a higher rate of default interest as stipulated under the Art. 1530/7, which is another special measure brought in order to protect the creditor.
According to the Art. 1530/7 of the TCC, on January each year, Central Bank of the Turkish Republic announces the interest rate and the minimum compensation amount for the fees of collection of receivables to be applied in cases where the default interest rate with regard to the late payments that are made to the creditor is not regulated under the agreement and in cases where such provisions are invalid. Therefore, by means of such higher rate of default interest stipulated under the provision in question, a deterrent effect is created for the prevention of the late payments19.
C. Role of Fault in Default
According to the system of the TCO, fault is not required for the default of the debtor20. In another words, the debtor lapses into default although the non-performance occurs without the fault of the debtor. It should be pointed out that according to the TCO, the debtor in default is obliged to pay default interest even if he has lapsed into default without fault.
Article 1530/2 of the TCC regulates that despite the fact that the creditor has fulfilled its procurement obligation, the debtor shall be in default without any need of notice “except for the cases where he cannot be held liable for the delay”; in another words, the debtor shall not be in default “in the cases where he cannot be held liable for the delay”. Although it is argued in the doctrine that unlike the TCO, the debtor should have fault for the pecuniary debt to be lapsed in default with respect to the agreements which fall within the scope of the Article 1530;21 such argument contradicts with the purpose of the Art. 1530. Hence, the provisions regulated under the Art. 1530 are brought in order to ease the creditors’ acquisition of the receivables. Conditioning fault for the default of the debtor would create an unfavorable situation for the creditor, fall behind the system adopted in the TCO.and the debtor without fault would not be obliged to pay any default interest22. For the above-mentioned reasons, Art. 1530/2 should be interpreted in the same manner as the method adopted under the TCO and the expression “except for the cases where he cannot be held liable for the delay”, which is stated under the said provision, should be interpreted as “except for the cases where the act of debtor is not objectively incompatible with the obligation”. Therefore, provided that the creditor is liable for the delay (e.g. the wrongly informed bank account number) delayed the performance regarding the pecuniary debt relying on a right (e.g. not taking the delivery of the goods due to the fact that they are defective and basing non-payment plea), the debtor shall not be held liable because of such delay and shall free from the obligation of paying default interest. However, for instance, in case the debtor could not perform its obligation due to his ill health, the debtor shall be held liable because of such delay and lapse into default 23.
IV. CONCLUSION
Article 1530 of the TCC, which is applicable to the transactions on the procurement of goods and services between enterprises and the merchants, brings special measures, which differ from the system regulated under the TCO. Paragraphs 2 and 7 of the Art.1530 of the TCC, which is constituted pursuant to the principles of the Directive and brought in order for the creditor to receive his payments on time and ensure the common market to process in a proper way, are analyzed under this article with respect to the regulations on default without notification, performance period and default interest in comparison with the provisions of the TCO.
BIBLIOGRAPHY
Fikret Eren, Borçlar Hukuku Genel Hükümler, Ed. 19, Ankara 2015
Hülya Coştan, “TTK m. 1530 Uyarınca Mal ve Hizmet Tedarikinde Geç Ödemenin Sonuçları”; Yeni Türk Ticaret Kanunu’nun İş Dünyasına Etkileri, Editors: Ayşegül Altınbaş/Yurdal Özaltan, Istanbul 2014
Hüseyin Ülgen/Mehmet Helvacı/Abuzer Kendigelen/Arslan Kaya/N. Füsun Nomer Ertan, Ticari İşletme Hukuku, Ed. 4, Istanbul 2015
M. Kemal Oğuzman/M. Turgut Öz, Borçlar Hukuku Genel Hükümler, V. 1, Ed. 9, Istanbul 2011
Murat Aydoğdu/Serkan Ayan, Türk Borçlar ve Türk Ticaret Hukuku’nda Yer Alan Faiz İle İlgili Düzenlemelerin Değerlendirilmesi, Ankara 2014
Pınar Çağlayan, “Avrupa Birliği Yönergeleri ve Alman Hukukundaki Deneyimler Işığında Mal ve Hizmet Tedarikinde Geç Ödemenin Sonuçları (TTK m. 1530)”, BATIDER, June 2011, V. XXVII, N. 2
Reha Poroy/Hamdi Yasaman, Ticari İşletme Hukuku, Ed. 15, Istanbul 2015
Sabih Arkan, Ticarî İşletme Hukuku, Ed. 21, Ankara 2015
Yeşim M. Atamer/Gül Okutan Nilsson, “Para Alacaklısının Geç Ödemelere Karşı Korunmasına İlişkin Yeni TK M. 1530 Düzenlemesi ve Uygulama Alanı”, BATIDER, 2013, V. XXIX, N.3
FOOTNOTE
1 Official Gazette (OG) dated 04.02.2011 and numbered 27836
2 OG dated 14.02.2011 and numbered 27846
3 Pınar Çağlayan, “Avrupa Birliği Yönergeleri ve Alman Hukukundaki Deneyimler Işığında Mal ve Hizmet Tedarikinde Geç Ödemenin Sonuçları (TTK md. 1530)”, BATIDER, June 2011, V. XXVII, N. 2, p. 217.
4 Since the aforementioned Directive has not been published yet when the TCC was enacted and was a draft prepared for replacing the Directive dated 19.06.2000 and numbered 2000/35, the said draft was taken into account by the legislator. The Directive was published as numbered 2011/7/EU in the Official Gazette of EU numbered L 48/1 and dated 23.02.2011.
5 Hülya Coştan, “TTK m. 1530 Uyarınca Mal ve Hizmet Tedarikinde Geç Ödemenin Sonuçları”, Yeni Türk Ticaret Kanunu’nun İş Dünyasına Etkileri, Editors: Ayşegül Altınbaş/Yurdal Özaltan, Istanbul 2014, p.137.
6 Hüseyin Ülgen/Mehmet Helvacı/Abuzer Kendigelen/Arslan Kaya/N. Füsun Nomer Ertan, Ticari İşletme Hukuku, Ed.4 , Istanbul 2015, p. 313.
7 Yeşim M. Atamer/Gül Okutan Nilsson, “Para Alacaklısının Geç Ödemelere Karşı Korunmasına İlişkin Yeni TK m. 1530 Düzenlemesi ve Uygulama Alanı”, BATIDER, 2013, V. XXIX, N. 3, p. 31,32.
8 According to the provisions of the TCO which are applied to the private law relations, the conditions of default of the debtor are; being capable for the performance, readiness of the creditor to accept the performance, debt being due and notification of the creditor in principle. In the contracts which fall within the scope of the Art. 1530 of the TCC, the aim is to save the creditor from the burden of sending a default notice, which is a condition for the default of debtor.
9 It should be emphasized that, in order for the provision in question to be applied, the creditor should have been fulfilled its obligation of procurement.
10 Çağlayan, p. 220.
11 For the contrary opinion, Atamer/Okutan Nilsson, p. 53. According to this legal opinion, the debtor would unjustly aggrieve in case the default without notice principle is applied for the agreements having unspecific term and the concept of “the date or the payment period determined under the agreement” regulated under the provision should always be interpreted for the cases where a date or a period having the characteristics of a specified term is determined under the agreement. In such case, determination of unspecific term by the parties would be uncovered and therefore the solution is to apply paragraph 4 of Art. 1530 of the TCC, which regulates the circumstances where no term is agreed on, by analogy.
12 Özdemir, p. 679/99.
13 Atamer/Okutan Nilsson, p. 37.
14 Sabih Arkan, Ticarî İşletme Hukuku, Ed.20, Ankara 2015, p. 166.
115 Murat Aydoğdu/Serkan Ayan, Türk Borçlar ve Türk Ticaret Hukuku’nda Yer Alan Faiz İle İlgili Düzenlemelerin Değerlendirilmesi, Ankara 2014, p. 287.
16 Çağlayan, p. 222, 223.
17 Atamer/Okutan Nilsson, p. 41.
18 According to the Art. 120 of the TCO and Art. 2 of Law on Legal Interest and Default Interest numbered 3095, the debtor in default regarding the pecuniary debt, should pay default interest. Such default interest arises ex officio, without any need of the agreement of the parties. The damage of the creditor and fault of the debtor is not conditioned for the payment of the default interest. Fikret Eren, Borçlar Hukuku Genel Hükümler, Ed. 19, Ankara 2015, p.1099-1100.
19 Coştan, p.148.
20 M. Kemal Oğuzman/M. Turgut Öz, Borçlar Hukuku Genel Hükümler, V. 1, Ed. 9, Istanbul 2011, p. 404.
21 Reha Poroy/Hamdi Yasaman, Ticari İşletme Hukuku, Ed.15 , Istanbul 2015, p. 76; Arkan, p.166.
22 Atamer/Okutan Nilsson, p. 59.
23 Aydoğdu/Ayan, p. 301-302.
