ABSTRACT
The decision of the unification of judgements held that the amount of the letter of guarantee that has not yet been collected or the legal reserve amount that the bank will have to pay in case of unrequited provision is not in the nature of a due receivable before the risk is realized. In the event that a due receivable is not in question, the law states that the precautionary foreclosure institution cannot be applied. If it is agreed in the contract between the bank and the beneficiary or the customer in the letters of guarantee about the amount to be paid by law, the bank may deposit the risk amount to be paid in the future on the letter of guarantee or the bad check before the risk is realized. Therefore, this authorization includes the authority to request foreclosure. In case the letter of guarantee agreement arranged between the bank and the beneficiary contains a provision regarding depositing the letter of guarantee amount, or the cheque leaf cost that becomes worse in the contract signed between the bank and the cheque account owner, these amounts may facilitate a warranty for the bank. As the guarantee is related with monetary, considering amounts not to be collected with pledge and then becoming due upon closing the account, it is required to decide on ancillary attachment for the guarantee receivable that is assessed within scope of the monetary debt as stated in the 257th clause of the 2004 numbered law.
I. INTRODUCTION
The unification application was made upon the contradiction between the Supreme Court 11th Civil Department and 19th Civil Department about whether ancillary attachment decision shall be given for guarantee receivables. In this regard, the Supreme Court 11th Civil Department1 held that ancillary attachment decision can be given if the depositing authority also contains the authority to request an ancillary attachment where there is a provision regarding the bank’s authority to deposite the risk amount to be paid with the letter of guarantee or bad check in agreements signed between the bank and the beneficiary regarding the amount legally obliged to be paid for the outstanding letter of guarantee or the bad check as the risk is not realized yet. However, the Supreme Court 19th Civil Department2 held against that decision that the it shall not be due debt as long as the bank does not make payment for the letter of guarantee or the bad check and, therefore the ancillary attachment decision cannot be given. The General Assembly held that it shall not be held to agree to the ancillary attachment decision can be given considering that the depositing authority also contains the authority to request ancillary attachment decision. So the Board unified the judgements that ancillary attachment decision cannot be given for the debt of posting a guarantee decision considering this conflict.
In this analysis, the issue of whether ancillary attachment decision can be given for the debt of posting a guarantee is to be analyzed within terms such as guarantee, maturity, auxiliary attachment and the risk in accordance with the 27/12/2017 dated, E.2016/1 and K.2017/6 numbered Case Law Unification Decision (“DJC”) of Supreme Court Board of the Unification of Case Law.
II. SUMMARY
Due to the nature of the ancillary attachment, the attachment is not been evaluated as an “execution transaction”, and is required as a temporary legal protection means. However, as the ancillary attachment is envisaged only for “monetary receivables” within conditions in the 257th clause of 2004 numbered Law guarantee receivables and the debt of depositing a guarantee shall not be subject to the ancillary attachment decision. The decision of the unification of judgements about this issue is to be evaluated in this study. On the other hand, if there is a provision in the contract between the bank and the beneficiary or the customer in the letters of guarantee about the amount to be paid by law, the bank may deposit the risk amount to be paid in the future on the letter of guarantee or the bad check before the risk is realized. Therefore, this authorization includes the authority to request foreclosure.
III. DECISION OF UNIFICATION OF JUDGEMENTS
The analysis of subject-matter is to be analysed under the legal nature of bank letters of guarantee firstly by comprising of noncash loans to evaluate the judgements unified by the General Assembly of the Supreme Court in an effective way,
A. Letter of Guarantee
It is defined as renouncing the use of the economically top credit procurement power for a certain period in favor of another person or waiving this power to him/ her. However, a Bank Loan Agreement is a contract between a borrower and a lender which the lender commits to loan money to the borrower under certain conditions, or bear a certain risk by allocating the credit to his/her use, and the borrower commits to return the borrowed money or eliminate the risk or eliminate the loss occurred with the payment made upon realization of the risk, additionally, pay a consideration to the creditor3. This definition is valid for cash loans, and the non-cash loan is the agreement type which the creditor (bank) does not make direct cash outflow. In other words, does not lend money; instead, commits a responsibility by giving a guarantee in favor of the debtor using the loan. The critical point in non-cash loans is that such credits are converted into cash loans when they are converted into cash.
There is a commonly used type among non-cash loans; “Bank Letters of Guarantee”. In the 48th clause of 5411 numbered Banking Law (“5411 numbered Law”); “Cash loans and letters of guarantee given by Banks (…) non-cash loans and guarantees having this nature (…). amounts of non-cash loans converted into cash, receivables from reverse repo transactions, risks undertaken due to forward transaction and option agreements and other similar agreements, partnership shares and transactions accepted as loan by the Board shall be considered as loans in the implementation of this Law regardless the account they are monitored at.” provision is provided. In this regard, letters of guarantee comprising of non-cash loans are considered as loans within framework of the 5411 numbered Law.
In 1967, the Supreme Court4 held that the legal nature of bank letters of guarantee is a “warranty agreement”. According to the unification decision as mentioned above; “…as the title of the bank is the warrantor, the guarantee shall be separate from parties signing the main agreement and the main contract and completely individual, and the bank guarantee shall be embodied as a Warranty Guarantee regardless the validity and availability of the debt of the beneficiary; in case it is accepted to compensate the loss arising from failing to fulfill the debt regardless objections those may be claimed by the main debtor, the guaranteeing situation shall be in question, the person guaranteeing the act of the third person shall be under an individual guarantee…” However, in another 1967 dated Case Law Unification Decision5, it is decided that letter of guarantee is a warranty agreement guaranteeing the act of the aforementioned third person in the 128th clause of 6098 numbered Code of Obligations.
In this regard, letter of guarantee shall be a warranty agreement guaranteeing an act or acts of the third person and the bank debt can only reveal upon the occurrence of a risk. The warranty agreement between the bank and the acceptor for letters of guarantee is not an abstract acknowledgement of debt. For the existence of bank’s payment liability, the acceptor must evidence that the risk within scope of the warranty agreement is realized6. There is a contractual sub-relation between the beneficiary and the acceptor in letters of guarantee and if the beneficiary fails to timely and completely fulfill his/her actual or auxiliary performance liabilities arising from this agreement as required, it can be concluded that risk occurs for the acceptor. The obligation of the guaranteeing bank protects the guarantee area (letter of guarantee) against future damage. Finally, unless the risk occurs and payment is made to the addressee. In other words, the bank shall not recourse to its customers unless the letter is compensated. Follow-up will not be possible until the letter is compensated, and recourse is granted.
B. Concept of Ancillary Attachment
The ancillary attachment is a temporary protection precaution used for protecting an existing or prospective monetary receivable. Ancillary Attachment conditions are mentioned in the 257th clause of 2004 numbered Enforcement and Bankruptcy Law (“2004 numbered Law”). Accordingly, in the related law article:
“Claimant of a monetary debt which is not warranted with a mortgage and becomes due may have discreetly confiscated its movable and immovable commodities and receivables and other rights in the possess or third person.
Ancillary attachment can only be requested for below given situations due to the undue debt: 1. If the debtor does not have a specific domicile, 2. If the debtor gets prepares to hide, evade his/her properties or escape personally to get rid of his/her debts, or escapes or omits fraudulent actions breaching rights of the claimant for that purpose, If the ancillary attachment is given in such a way, the liability falls due only for the debtor.” provisions are given. Accordingly, below given two conditions are required to provide an ancillary attachment decision: (i) the receivable is not provided with pledge, (ii) the debtor becomes due.
When these two conditions are realized at once, the claimant may have confiscated his/her movable and immovable properties and receivables from the debtor or the third person.
The initially highlighted issue in the Case Law Unification Decision, the agreement between the bank giving the letter of guarantee and the acceptor is in the nature of a warranty agreement, bank’s responsibility is not ancillary, instead of independent of the main debt and the primary debt. The Bank may take itself under assurance for the risk of the given letter of guarantee. Likewise, in case of any additional collateral to be requested in the contract or the increase in the credit risk of the beneficiary, non-refundability of the letters of guarantee despite the request, concerns about the statue of the beneficiary, the financial situation of the beneficiary is damaged or the amount of the guarantee letter is not yet converted into cash for the term in the contract; the bank, the beneficiary, the joint debtor and the guarantor. Proceeding without judgment may be performed to deposit the guarantee. However, in the 42nd clause of 2004 numbered law; “Forced execution of the payment of money or the issuance of a guarantee starts with a request for follow-up and takes place by way of foreclosure or pledge or bankruptcy.”
Although the collateral receivables may be followed by general foreclosure under the relevant law, a prudent foreclosure decision cannot be made. As a matter of fact, in Article 257 of the Law No. 2004, the precautionary foreclosure is foreseen only for “money receivables”. As a precautionary foreclosure is a private legal protection institution, not an enforcement process, it can only be requested within the framework of the provisions of the said law. No prudent foreclosure decisions can be made to store the collateral.
For the letters of guarantee that have not yet been converted into cash, follow-up cannot be made through general foreclosure for the collection of the amount in the letter of guarantee. The reason is that, the debt arising from the monetary receivable is not due since the risk has not been realized and the Bank has not yet paid. A precautionary decision cannot be made for a non-due receivable.
Risk of the bank regarding chequeleaves reveals after the cheque is used and presented to the bank and being a bad cheque. In case this risk is not realized, a due receivable shall not be in question and an ancillary attachment decision shall not be given for an undue receivable.
On the other hand, if there is a provision in the contract between the bank and the beneficiary or the customer in the letters of guarantee about the amount to be paid by law, the bank may deposit the risk amount to be paid in the future on the letter of guarantee or the bad check before the risk is realized. Therefore, this authorization includes the authority to request foreclosure. In this case, it is necessary to state that a prudent foreclosure decision can be made. In this case, the main problem is whether or not the bank may be able to claim the amounts as the legal provisions of the checks that have not yet been collected or whether the checks have not been released yet. Even if there is a provision in the agreement between the bank and the customer, the bank can only request that it be deposited and cannot demand payment to it. Moreover, the bank guarantees that it will take risks due to such a provision in the contract. In other words, since the receivable will be secured, there is no need for a preliminary injunction which is a private legal protection institution.
The amount of the letter of guarantee that has not yet been collected or the legal reserve amount that the bank will have to pay in case of unrequited provision is not in the nature of a due receivable before the risk is realized. In the event that a due receivable is not in question, it is a requirement of the open law that the precautionary foreclosure institution cannot be applied.
IV. CONCLUSION
The decision of the unification of judgements states that the guarantee deposit ing debt is not in a monetary receivable nature according to 257th clause of the Law. The Supreme Court ruled that the authority to request the deposit of the receivable based on bank guarantee letters, which is a non-cash loan type, does not contain the authority to require a precautionary lien. On the other hand, in the case of the provision regarding the authorization of the bank to seek to be deposited in the contract, it is stated that there will be no need for a particular legal protection system as a precautionary foreclosure, since the bank will already guarantee that it will receive due to risk.
The phrase “claimant of money debt' in Article 257 of the Law No. 2004 was stated as 'creditor of a debt' prior to the amendment and emphasized that the ancillary attachment is a protection measure foreseen only for the receivable of money, avoiding misapplications, and for requests other than money receivables and the ancillary attachment was changed on the grounds that it cannot be requested7. In this regard, the purpose of the amendment is not leaving the guarantee claimants out of the scope. According to our opinion, the concept of money debt should be interpreted broadly to include collateral receivables8. Indeed, as stated in Article 42 of the Law No. 2004, it is possible to carry out illicit execution proceedings for payment of money debt, as well as non-illicit execution proceedings for demonstration of collateral.
Although, according to the Law, no precautionary lien can be requested for the receivables of collaterals other than the subject matter money, there is no legal obstacle to seeking a precautionary claim in the guarantees that are subject to payment, especially in the form of depositing some amount of money. If the receivable which is the basis of the preliminary injunction is receivable, the creditor may file a lawsuit for the storage of this money in case the collateral promised not to be shown, and may carry out proceeding without judgment. Provisional protection as a temporary protection measure may also be required for claims that may be the subject of such an existing or future case or enforcement proceedings.
The purpose of the precautionary foreclosure is to secure the follow-up for the receivables. The case or proceeding in which the precautionary security guarantees the outcome may be a request for performance that ensures the ultimate satisfaction of the creditor or a request to provide collateral to the creditor. The important point here is to assure the claim regarding a monetary receivable.
In this respect, we believe that as the “monetary debt” notion also covers guarantees related to money, the term regulated in the 257th clause of 2004 numbered Law shall be realized.
On the other hand, in our opinion, linking the above-mentioned case-law unification decision with the bank guarantee letter amount or the unpaid check sheet value of the fulfillment of the due date condition only to the condition that the counterparty is paid is a dangerous approach that will result in the negligence of the contractual provisions between the parties. As the demand of receivable and the deposit shall be due as the contribution of the account under the provisions of the contract, the due date specified in the Law No. 2004 shall be deemed to have been realized. As a matter of fact, if there is a provision in the non-cash loan agreement between the bank and the beneficiary (bank letter of guarantee), the amount of the letter of guarantee for the bank, the check sheet amount that is unrequited in the contract arranged between the bank and the check account holder, the warehouse and the floor shall be case, the execution of proceeding without judgment or ancillary attachment is required to request the due date.
As a consequence, in case the letter of guarantee agreement arranged between the bank and the beneficiary contains a provision regarding depositing the letter of guarantee amount, the cheque leaf cost that becomes worse in the contract signed between the bank and the cheque account owner, these amounts facilitate a warranty for the bank. As the guarantee is related with money, considering amounts not collected with pledge and become due upon closing the account, it is required to decide on ancillary attachment for the guarantee receivable that is assessed within scope of the monetary debt as defined in 257th clause of the 2004 numbered law.
BIBLIOGRAPHY
UNAL TEKİNALP, Banka Hukukunun Esasları, 2nd Edition, İstanbul 2009.
VAHİT DOĞAN, Banka Teminat Mektupları, 4th Edition, İstanbul 2011.
SAİM USTUNDAG, Medeni Yargılama Hukuku, 7th Edition, İstanbul 2000. BAKİ KURU, İcra ve İflas Hukuku, 1st Edition, İstanbul 1997.
FOOTNOTE
1 For further decisions, see; 11. HD 22.02.2012 T. 935/2567; 22.10.2012 T. 14297/16782; 06.11.2012 T. 17303/20159; 05.12.2012 T. 16721/19916.
2 For further decisions, see; 19. HD 13.12.2007 T. 11443/11273; 15.03.2010 T. 1520/2849.
3 Unal Tekinalp Banka Hukukunun Esasları (İstanbul: Vedat Yayıncılık, 2009), p. 479-509
4 The Decision of the Unification of the Judgements of the Supreme Court, 13.12.1967 dated, 1966/16 E. and 1967/7 K. Numbered.
5 The Decision of the Unification of the Judgements of the Supreme Court , 11.06.1969 dated, 1969/4 E. and 1969/6 K.
6 Vahit Dogan, Banka Teminat Mektupları (İstanbul: Seçkin Yayıncılık, 2011), p. 177.
7 Title of the Article 59 of the Law No. 4949: “Ancillary Attachment” changed to “Clauses of Ancillary Attachment”; in the first paragraph “debt” adjusted to “monetary debt”; in the second paragraph’s second subparagraph “escapes” turned to “If the debtor gets prepares to hide, evade his/her properties or escape personally to get rid of his/her debts, or escapes or omits fraudulent actions breaching rights of the claimant for that purpose,”
8 Saim Ustundag, Medeni Yargılama Hukuku, p. 475; Baki Kuru, İcra ve İflas Hukuku, (İstanbul: Alfa Yayıncılık, 1997), p. 2495.
