ABSTRACT
A bank letter of guarantee is a kind of guarantee agreement that stipulates that the risks that may arise from the relationship between the beneficiary and the addressee are undertaken by the bank, and that in the event that the risk occurs, a payment of a certain amount will be made. Although there is no party limitation as a rule, the issuer of the bank letter of guarantee, which has a wide place in practice, is the bank itself, and since the responsibility of the bank has a legal nature independent of the main debt, the risk will not disappear as long as it continues.
In this article; after the evaluations of the basic concepts and relations, the limitations of the bank’s liability upon payment requests are examined.
I. INTRODUCTION
Since it is essential to establish and maintain rapidly developing commercial relations based on a certain level of trust in today’s commercial life, letters of guarantee given by banks are of great importance in order to protect the interests of the parties in cases where the contract is not performed properly or at all. In this article, firstly, the discussion about the letters of guarantee, whose legal nature is controversial, is mentioned, and the legal nature of the relationship between the parties is also explained. After the evaluations of the basic concepts and relations, the limitations of the bank’s liability upon payment requests are examined.
II. LEGAL NATURE OF THE LETTER OF GUARANTEE
As a result of the development of the economy, the use of bank letters of guarantee has become widespread in order to ensure that the counter act will be fulfilled in the contracts made between the parties and to establish trust in commercial relations. Bank letters of guarantee emerged as a result of this uncertainty and insecurity in commercial relations, and as a result of their widespread use, they took their place in Turkish law and led to discussions about their nature. Letters of guarantee, which do not have a legal definition, are expressed in practice as documents that assume a duty of guarantee, in which the responsibility of the bank’s beneficiary, that is, the risk that may arise as a result of the behavior, is undertaken by the bank.
The legal nature of the letters of guarantee is also controversial, and has been changed with two different decisions of the joint chambers of the Court of Cassation. Regarding this debate, the Court of Cassation concluded that the letters of guarantee have the element of guarantee with two decisions of joint chambers given in 1967 and 1969. In its decision to consolidate the case law dated 13.12.1967 and numbered E. 66/16, K. 7, the Court of Cassation accepted that the letter of guarantee constitutes the commitment of the act of the third party and that the guarantee commitment given by the issuer of the letter is independent of the main debt relationship1. In the second decision of joint chambers on the subject dated 11.6.1969 and numbered E. 69/4, K. 96/6, the opinion that the letter of guarantee is a guarantee contract of the act of the third party within the meaning of Article 110 of the Turkish Code of Obligations was accepted2.
In addition to the lack of a specific definition in the legislation, letters of guarantee with different legal qualifications have emerged in order to protect different legal interests in practice. As a result of this, letters of guarantee are referred to with different definitions in the doctrine.
According to Tekinalp, “It is a contract in which the bank guarantees to pay a certain amount to the third party that is in a position to enter into any legal relationship with its customer, regardless of the customer’s failure to fulfill the debt arising from this relationship or the non-performance of any action, only if a feared event occurs”3.
Reisoğlu defined bank letters of guarantee as “guarantee contracts aiming at collateral” and described them as “guarantee contracts aiming to guarantee, as in other guarantee contracts, are independent of the basic relationship between the beneficiary and the addressee and a certain risk is undertaken by the guarantor”4.
In light of the Court of Cassation decisions and related definitions, if the legal nature of the bank letters of guarantee is accepted as a guarantee contract in accordance with the prevalent opinion, it is generally accepted that the bank has committed to compensate the loss to be incurred by a certain or determinable amount upon the realization of the risk specified in the bank letter of guarantee. In accordance with the prevailing opinion, it can be defined as the manifestation of a guarantee contract between the addressee and the bank, which has the quality of undertaking the act of the third party.
III. THE PARTIES TO THE RELATIONSHIP OF THE LETTER OF GUARANTEE AND THE NATURE OF THE RELATIONSHIP BETWEEN THEM
A. Guarantor – Bank
In the letter of guarantee relationship, the bank issues the letter of guarantee and undertakes to pay the amount in proportion to the loss that arises depending on the realization of the risk. All real and legal persons who have the capacity to make a contract can be a contracting party as a guarantor. However, although in practice banks are under the guarantee obligation, there is, in fact, no restrictive provision stating that letters of guarantee can only be issued by the bank.
B. Guaranteed – Addressee
The addressee is the other party in both the basic debt relationship and the collateral agreement with the bank. With the guarantee agreement, the bank undertakes to compensate for the loss that may arise in the event of the beneficiary failing to fulfill its performance obligation properly, and arranges this guarantee commitment with a letter of guarantee. In this sense, the letter of guarantee is a legal structure that is arranged between the addressee and the bank, where the addressee who receives the guarantee does not have any responsibility towards the bank.
C. Beneficiary
Although the beneficiary is not a party to the bank letter of guarantee relationship as the third party, he/ she is the reason for the establishment of this relationship. In addition, it is the party requesting the bank to provide a guarantee in favor of the beneficiary, and upon this request, a bank letter of guarantee will be issued between the addressee and the bank. In this way, the receivable of the addressee that derives its source from the basic debt relationship will be committed by the bank and the receivable will be under the guarantee responsibility of the bank. At this point, the contractual relationship between the beneficiary and the addressee does not concern the bank, but when the risk is realized and the demand for duly compensation is in question, the basic debt relationship will be important in terms of whether the addressee abuses this right5.
D. Basic Relationship Between Beneficiary and Addressee
Guarantee contracts and, in this sense, bank letters of guarantee contain a tripartite relationship. In the bank letters of guarantee, the bank undertakes the loss arising from the beneficiary’s failure to perform or not perform properly based on a valid contract signed between the beneficiary and the addressee. The relationship between the beneficiary who has a customer relationship with the bank and the other party of the contract is called the “fundamental debt relationship”6. The legal nature of this relationship is not important for the guarantee commitment, and the relationship between the beneficiary and the addressee may arise from all kinds of legal reasons.
E. Reciprocal Relationship Between Beneficiary and Bank
The relationship between the beneficiary, who applied to the bank with the aim of indemnifying the damage that will arise in the event that he/ she does not perform his/her performance in the basic debt relationship duly or at all, and the bank is called the “reciprocal relationship”. In the bank letter of guarantee relationship, which is arranged upon the beneficiary’s request from the bank to compensate for this loss, the relationship between the bank and beneficiary due to this liability entered in favor of the beneficiary is called a reciprocal relationship7.
As a result of the bank’s payment to the addressee upon the occurrence of the risk, the paying bank will be able to demand the amount paid from the beneficiary based on the reciprocal relationship. In practice, within the framework of the counter-guarantee agreement between the bank and the beneficiary, the bank will be able to receive a refund of the amount paid by using its right of recourse8.
F. Guarantee Relationship Between the Bank and Addressee
This legal relationship established between the addressee and the bank, which is completely independent of the basic debt, is for the purpose of collateral and bears the nature of undertaking the act of the third party. This independent relationship will continue to exist even if the basic relationship between the beneficiary and the addressee is invalid. Although different opinions have been put forward as a result of some discussions about the legal nature of this relationship, it has been agreed that this relationship is a guarantee contract for the purpose of collateral, as a result of the decision of the joint chambers of the Court of Cassation9.
IV. REQUESTING BANK LETTER OF GUARANTEE TO TURNIN TO CASH AND PAYMENT PROCESS
A. Beginning and Limit of the Bank’s Liability
The responsibility of the bank is considered to have started as a rule if the letter of guarantee is accepted by the addressee with the arrangement of the bank10. Since the letter of guarantee is drawn up between the parties, it is important for the limits of the bank’s liability that the limits of the risk to be realized are specific or identifiable, as it is a guarantee contract. In this sense, as the Court of Cassation has also stated in a decision, the possibility that the guarantor may be held liable for the exceeded limit is acceptable only within reasonable limits, and it must be accepted that the excessive limit exceeding cannot remain within the scope of the guarantee. From this point of view, it will be possible and valid that the risk arising from a certain and determinable amount, and again, a certain contractual relationship is under the guarantee commitment, rather than all relationships between the beneficiary and the addressee.
Since the bank is under a guarantee debt obligation, the bank’s payment obligation will also arise if the risk arises. When there is an encashment request duly made by the addressee, the bank is obliged to compensate the lawful payment request after the obligated inspection. In the letters of guarantee where the payment record is available in the first written request, the bank has to process the cash conversion immediately without examining the existence of the risk.
In addition, the liability of the bank will continue to exist even if the main contract is null and void, since the guarantee contract is independent of the underlying debt relationship11.
B. Request for Payment
The suitability of the payment request has certain conditions that must be checked by the bank. If these conditions are met, the bank will be able to respond positively to the payment request and fulfill the compensation request of the addressee. The relevant conditions are examined below.
1. Form and Content of the Payment Request
a. Condition for the Payment Request to be in Writing
Contrary to the usual practice, although there is no need for a specific form of payment request as a rule, it has been decided that there will be a payment obligation upon the first written request in the content of the letter of guarantee12. In the letters of guarantee stating that the payment will be made upon the first written request in question, the parties have agreed that the payment will be submitted in writing. Whether this is a validity condition is controversial in the doctrine, and some authors argue that it constitutes a condition of proof13. According to Barlas, one of the authors who argues that there is a condition of proof, a written request requirement is added to the compensation letters in order to constitute evidence in terms of proof in case the banks recourse to the beneficiary based on a counter-guarantee, and in this way, it is aimed to eliminate any legal proof problems in the case of recourse14.
According to another opinion, this request of the addressee is a condition of validity, and it is stated that the bank’s rejection of the requests not submitted in writing will be justified.
b. Condition of Notification of Risk Occurrence
A certain risk is guaranteed in the letters of guarantee, and it is controversial whether it should be declared that the guaranteed risk has been realized in the written request for the letter of guarantee. The Court of Cassation, in a decision on this issue, ruled that if the addressee is notified in the request that the beneficiary has not fulfill the contractual obligation, the bank will be under the obligation to pay. In line with this decision, in another decision of the Court of Cassation, the verdict was given that “an abstract/ vague letter written by the addressee to the guarantor bank which does not include the explanation that the risk has occurred is not considered sufficient”15.
However, in another decision, the opposite view was adopted and it was stated that it was not necessary to state that the risk had occurred while making a claim for compensation. Considering the relevant decision, it was said that, “...If the addressee requests compensation for the letter of guarantee by informing that the beneficiary respondent X has not fulfilled his contractual obligations partially or completely, the plaintiff bank should not have to examine whether the beneficiary fulfilled his obligations and must immediately pay the requested amount. On the other hand, while it is possible for the beneficiary to prevent the payment by taking a temporary injunction from the court for the non-payment of the letter of guarantee, by not doing this, it is not appropriate to burden the results of these negligent behaviors to the bank that has not taken any action other than fulfilling its obligation, and since the statement of the defendant’s attorney in the reply petition is not in the nature of a clear and definitive acceptance, the request of revision of the decision, which does not include any of the situations listed in Article 440 of the HUMK, should be rejected”. In cases where it is not stated that the risk has been realized, it has been decided that the bank has the obligation to pay16.
Apart from these contradictory decisions of the Court of Cassation, according to an opinion defended by Arkan and Reisoğlu in the doctrine, unless otherwise stated in the letter of guarantee, it should be stated that the risk has been realized with the payment request, but there is no need to prove it in any way17.
c. Specifying the Amount to be Converted to Cash
The letter of guarantee requested for payment and the amount requested must be clearly stated. Otherwise, the bank will be able to avoid making the payment due to the uncertainty of the demand. As can be seen in a Court of Cassation decision in this direction; “... first of all, it should be taken into account that the risk, amount and date of each letter of guarantee given to the plaintiff administration is different. It was also not explained in both the encashment request and in the lawsuit that from which letter of guarantee risk the requested amount arises. While it should be requested from the plaintiff to clarify which letter of guarantee risk this amount originates from, it was not considered correct to decide on executing interest from the date of the first request without taking this matter into account” it has ruled that it is obligatory to specify the letter of guarantee from which the beneficiary’s debt originates and the amount in the request18.
2. Duration of the Payment Request
In the text/ writing of the bank guarantee letter, there may be a written article regarding the earliest payment of the promised amount upon the realization of the risk. In such a case, even if the risk arises, the payment will not be made before this date, and this due date will have to be awaited to receive the payment. The purpose of such provisions is to act against abusive payment requests. If the letter of guarantee with such a provision is paid by the bank, by making a payment before the due date, the beneficiary and the bank will have acted against the guarantee agreement between the parties since they have not complied with the principle of loyalty to the text. As a result, the risk will be transferred to the bank, and the bank may face the possibility of not being able to recourse the amount paid. However, if there is no such condition in the letter of guarantee, the addressee may request payment upon the realization of the risk19.
Depending on whether the bank letters of guarantee are for a set term or indefinite, there may be differences in the timing of the payment request.
In the time-limited letters of guarantee, it may be stated that the letter of guarantee will be invalid if there is no written request for payment until the end of the maturity date. If there is such a provision, the payment request will only be possible if it is made within this period. If there is no such provision even though it is a term, it may be requested to convert the letter of guarantee into money within the 10- year limitation period after the realization of the risk20. In this case, in light of the Court of Cassation decisions, it was decided that the letter of guarantee would preserve its existence at the end of the maturity period. When the said decision is examined; “As a rule, in the case of a guarantee given for a certain period of time, the failure of the risk to occur within the period results in the elimination of the obligation. If the guarantee contract is made in accordance with the clause added by Law No. 2486 and dated 8.7.1981 of the Article 110 of the Code of Obligations, the contingent liability of the bank ends unless a written request is made until the end of the maturity period. In this way, if a record is not included in the guarantee contract, a claim for compensation can be claimed until the ten-year statute of limitations expires, even if the letter of guarantee is time-limited.” it can been seen that the judgment has been given and it has been accepted that the responsibility of the bank will continue, subject to the general statute of limitations of ten years.
In indefinite letters of guarantee, the addressee must submit the request to the bank within the statute of limitations. The statute of limitations accepted in this regard is ten-years, which is the general statute of limitations starting from the due date of the receivable21.
C. Obligations of the Bank
1. Obligation of the Bank to Act in Compliance with the Beneficiary’s Instructions and to Create a Contract with the Addressee
Due to the relationship between the bank and the beneficiary, the bank is obliged to issue a letter of guarantee and present it to the addressee upon the request of the beneficiary, and thus, the bank must act in accordance with the instructions of the beneficiary during the preparation process and content of the letter of guarantee22. In cases where a letter of guarantee with a content different from the beneficiary’s wishes is issued, it is accepted that the bank violates the obligation to act in accordance with the instructions of the beneficiary and that no demand of the bank from the beneficiary is possible in view of the provisions where the scope of the instruction is exceeded23.
The bank is obliged to conclude the guarantee agreement by presenting the letter of guarantee prepared in accordance with the instructions to the addressee. At this point, in accordance with the view advocated by Kahyaoğlu in the doctrine, since the guaranteed risk relationship is independent of the main debt relationship, the scope of the bank’s liability in the event of a committed risk is not a compensation debt, but a monetary debt.
In the event that the instruction is incomplete or unclear, the bank may reject the letter of guarantee; since the principle of strict adherence to the text in bank letters of guarantee remains valid, the parties to the contract must act in strict accordance with this text, and according to Doğan, in cases where the bank thinks that the instructions received by the beneficiary are incomplete or unclear, the situation will be reported to the relevant person and the bank will be able to provide the beneficiary with the opportunity to rectify the deficit.
As a result, the bank is obliged to conclude the contract with the addressee within the scope of the instruction received from the beneficiary, and should avoid issuing a letter of guarantee in order not to expand the scope of its responsibility in case the instruction is incomplete and unclear.
2. The Bank’s Obligation to Inform the Beneficiary
As a rule, since it is accepted that the beneficiary will be aware of the potential risks as a prudent trader in a commercial relationship, it is accepted that the beneficiary should bear the risks that may arise. However, at this point, when the scope of the bank’s obligation to inform the beneficiary is evaluated, the bank should inform the beneficiary about the provisions by taking into account the purpose of the letter of guarantee and fulfill its obligation by informing the beneficiary of the issues that it deems incomplete or indistinct regarding the instructions.
3. The Bank’s Obligation to Examine the Realization of the Risk
Since the responsibility of the bank is a guarantee commitment independent of the original debt, the bank’s debt will be due and the bank will be obliged to pay this debt in case of realization of the risk determined in the contract. At this point, in order for the addressee to request payment, first of all, the risk that is the subject of the contract must be realized and the realization of this risk must be proven by the addressee.
Since the scope of the bank’s inspection obligation is strictly dependent on the text of the bank’s letter of guarantee, it will be determined according to the content of the letter of guarantee and the conditions stipulated in the letter. However, if a letter of guarantee containing a payment record is encountered in the first request, then the bank will only make a formal examination, and will make the payment as a result of the formal examination it finds positive without entering into the merits. In a decision of the Court of Cassation in this direction, it was ruled that “The bank’s letter of guarantee contains the payment record at the first request, and when the addressee requests payment from the bank, the bank can only make a formal examination and cannot make a fundamental examination as to whether the risk has materialized or not”24. At this point, the bank will only be able to eliminate its payment debt if it proves that the risk has not materialized.
In the letters of guarantee that do not include a payment record in the first request, the bank is obliged to make the payment if it decides that the payment request is duly and the risk is realized. Here, the criterion in the examination made by the bank is that it examines with the reasonable level of care expected from it, and the payment request should be examined in terms of form, duration and content.
4. Obligation to Refuse a Request for Payment and to Not Make an Unfair Payment
As a rule, the bank is obliged to make a payment if the risk has also occurred after the content, form and time review. Since the bank receiving the payment request is obliged to notify the beneficiary of the request during this process, this will give the bank the opportunity to obtain information on issues that it may not have knowledge of25. From this point of view, if it is possible to prove by the beneficiary that the addressee is abusing the right or that the risk has not occurred, the bank will be obliged to examine the notification on the subject. If, as a result of this examination, it is concluded that the right has been abused, it [the bank] has the right to not pay.
D. Time of Performance and Due Diligence
Since the bank is obliged to pay the amount agreed upon between the parties, on the condition that the risk arises, the time of the contract cannot be considered as the due date. The bank’s obligation to pay will be due when the identified risk arises and the loss occurs accordingly. The bank’s debt becomes due only if the addressee has duly requested payment after the risk has occurred26.
Upon the request of the addressee to convert the letter of guarantee into cash, the bank must examine the letter of guarantee and evaluate the request in accordance with the conditions contained in the letter. Since the principle of adherence to the text is valid in guarantee contracts, the bank is obliged to examine whether there is a payment request that complies with the conditions in the guarantee text, provided that the addressee requests the payment on time. As a result of the check, if the bank determines that the application is in accordance with the procedure, it is under the obligation to pay within the limits specified by the text, in accordance with the conditions in the letter of guarantee, within the limits of the requested amount. For a payment request to be eligible, the letter of guarantee must be linked to the risk it protects against. If there is a risk other than the risk covered by the warranty statement, the request for payment will be meaningless.
In bank guarantee letters containing the payment document at the first request, the bank has the obligation to check whether the person requesting the payment is the addressee, unless otherwise stated in the letter text. For conditional or term guarantee letters, it is not just a formal confirmation; it is also necessary to check whether the conditions specified in the contract text are met and whether the payment request is made within the agreed period. If the bank determines that the payment request has been duly made, it is obliged to make the payment in accordance with the conditions in the letter of guarantee.
In bank letters of guarantee with a record of payment at the first request, the bank’s debt under the letter of guarantee becomes due upon receipt of the request for payment in accordance with the law. In bank letters of guarantee, which are subject to conditions or paid after a certain period after the payment request, the maturity of the bank’s payment obligation is determined according to the guarantee text27.
E. Scope of the Payment
1. The Request for Payment is Related to the Risk Determined in the Contract
As a rule, the bank is responsible for the risk it has undertaken and is obliged to make payments on the condition that this risk arises. Since the risk must be specific or determinable in letters of guarantee that have the attribute of a guarantee contract, banks decide on the probable amount they will be responsible for in practice. In this direction, the bank will have determined the maximum amount to be held responsible, and will have determined the amount to be held liable in case of risk, and will be liable only to the extent of this amount in case the risk arises.
Since the risk specified in the contract must be realized in order to request payment from the bank, if the risk has occurred due to another relationship between the addressee and the beneficiary, payment cannot be requested from the bank based on this reason. At this point, as stated in the Court of Cassation decision with the decision number 2003/10059 dated 28.10.2003, “... it should be taken into account that the risk, amount and date of each letter of guarantee given to the plaintiff administration is different. It was also not explained in both the encashment request and in the lawsuit that from which letter of guarantee risk the requested amount arises. While it should be requested from the plaintiff to clarify which letter of guarantee the subject amount originates, it was not considered correct to decide on implementing interest from the date of the first request without taking this matter into account.” it has been decided that the bank is not liable for compensation in case the addressee has suffered a loss due to another reason28.
2. Partial Payment
It is possible for the bank to make a partial payment, but pursuant to Article 84 of the Turkish Code of Obligations, the addressee will not be obliged to accept the partial payment if the entire debt is due, and may request the full payment. If the addressee requests a partial payment, payment can be made, without prejudice to the responsibility of the bank for the remaining part.
If a part of the debt is due, the bank will not be able to talk about partial performance, and the bank will have fulfilled its debt by paying the amount due. At this point, as Kahyaoğlu states, in a situation where the bank has a commitment against the risk of non-payment of bills with different maturities, the failure of the payment of one of the bills will not make the entire commitment due and in case the bank only pays the amount corresponding to the due bond this will not terminate its responsibility for the entire guarantee commitment. From this point of view, partial payment in letters of guarantee bearing a guarantee obligation does not mean that the entire liability is terminated29.
F. Circumstances in which the Bank Should Reject the Request for Payment
1. In General
As a rule, the bank receiving the duly payment request is required to compensate the cost by fulfilling its contractual obligation arising from the guarantee responsibility. However, the bank may avoid making this payment by arguing some defenses. At this point, the bank will only be able to use per - sonal defenses and defenses arising from the text of the letter of guarantee against the addressee. It will not be possible to assert against the addressee the defenses arising from the relationship between the benefi - ciary and the addressee and the defenses resulting from the provision relationship between the bank and the beneficiary.
2. Defenses that the Bank Can Assert Against the Addressee
a. Defenses to be Made Based on the Text of the Letter
In cases where the conditions that can be clearly understood from the text of the letter of guarantee are not fulfilled, the bank may claim that these conditions are not fulfilled, and thus, avoid the payment obligation. Cases such as the bank letter of guarantee being prepared by unauthorized persons, being fake, or the documents that need to be submitted are incorrectly submitted or not submitted at all, constitute defenses made based on the letter text.
b. Defense that can be Asserted in the Event that the Risk does not Occur
For the bank’s payment obligation to occur, the beneficiary must not perform its act duly or not perform it at all. In this case, the risk undertaken by the guarantee contract will be realized, and the bank will be liable to pay. However, if the addressee has made a demand despite the risk not existing or be - ing unlikely to occur, this request will be an unfair demand and the bank may avoid mak - ing payments based on this. In this case, the burden of proof that the risk does not occur or that it is not likely to occur is on the bank, otherwise, if there is no liquid evidence, it will be obliged to make the payment.30
c. Defense that can be Alleged in Case of Abuse of Right
If the addressee has acted against the princi - ple of good faith in accordance with Article 2 of the Turkish Civil Code in the request for payment, and if he/ she clearly makes an un - fair demand, the bank will reject the request for payment. However, it will be possible for the bank to apply this defense if it is proven with liquid evidence, as stated in the doctrine31. Liquid evidence means evidence that clearly and in a way that everyone can under - stand proves that the payment request con - stitutes a violation of the rule of good faith, and at this point, it will not be possible to refer to this defense with imprecise evidence that gives rise to doubt.
d. Defense that can be Alleged Due to the Injunction Order Given by the Court
Banks issuing the letter of guarantee may refrain from paying the amount subject to the letter of guarantee, even if the addressee requests payment, in line with the temporary injunction regarding the relevant letter of guarantee. The fact that the bank issuing the letter of guarantee makes a direct pay - ment upon the first request of the addressee, in some cases, causes unfair consequences against the beneficiary and/ or the relevant bank. In this context, with the temporary in - junction, the bank’s payment to be made un - der the letter of guarantee to the addressee was stopped, and it was tried to prevent the occurrence of such negative consequences. Temporary injunctions issued by the court are the only legal means to suspend the payment. In case of notification of the tem - porary injunction to the bank, the claim for compensation of the letter of guarantee may be rejected.
In the text of the relevant bank guarantee let - ter, even if there is the phrase “... commitment to pay despite the temporary injunction”, payment to the addressee may be avoided.In the event that payment is made despite the existence of the interim injunction, the officials who do not comply with the injunction will be committing a crime punishable by imprisonment from one month to six months, pursuant to the Code of Civil Procedure32.
In addition, according to the generally accepted view, the day the bank is notified of the provisional injunction on a forwarded letter of guarantee, the longer it is until the maturity date, the more days will be reserved and the period will not run. It is accepted that the addressee can request compensation within a period of the said reserved day after the interim injunction decision is lifted. Otherwise, when an interim injunction is taken and a lawsuit is filed, the letter of guarantee may expire and this will be to the detriment of the addressee. However, if the addressee is not aware of the interim injunction and does not request compensation within the due date, he/ she will not be able to claim that the due date has been extended based on the interim injunction he/ she learned later. Although this regulation does not exist in the law, it is a generally accepted rule filling the legal gap/ hole. Before the injunction is taken, there will be no problem if a claim for compensation has been made, and as mentioned above, he/ she can apply to the bank through a lawsuit within the ten-year statute of limitations, because the addressee obtains a right of receivable against the bank with the claim for compensation33.
V. CONCLUSION
Bank letters of guarantee, which have a wide place in practice, are not regulated by any law or legislation in Turkish law, but over time have emerged in variety to meet different legal needs through a customary way. In Turkish law, as seen in the decision of joint chambers, although the weighted opinion is that bank letters of guarantee have the attributes of a guarantee agreement, there are cases where a letter of guarantee has the attributes of a surety contract or cases where both are mixed. In this direction, we believe that what needs to be done is to evaluate the needs of each legal situation and the elements of the bank letter of guarantee, which is the subject of the concrete event, to decide on the legal nature of the letter and to draw the limits of liability from this point of view.
Although the legal status of bank letters of guarantee has been tried to be regulated by using the binding effect with the decision of the joint chambers, we think that a legal regulation on bank letters of guarantee should be created by the legislator in order to meet the needs of the practice and to ensure legal uniformity
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FOOTNOTE
1 Yargıtay T. 13.12.1967, E. 66/16, K. 7.
2 Yargıtay T. 11.06.1969, E. 69/4, K. 96/6.
3 Ünal Tekinalp, Banka Hukukunun Esasları, 2. Edition, Vedat Kitapçılık, İstanbul, 2009. p. 51.
4 Seza Reisoğlu, Banka Teminat Mektupları ve Kontrgarantiler, Ankara, 2003, p. 36 via Himmet Koç, Hukuki Açıdan Banka Teminat Mektupları, Ankara Üniversitesi Hukuk Fakültesi Dergisi, V. 69, Iss. 2, 2020 p. 569.
5 Reisoğlu, Banka Teminat Mektupları ve Kontrgarantiler, Seçkin Yayıncılık, Ankara, 2003, p. 95.
6 Elif Doğan, Türk Hukuk Sisteminde Banka Teminat Mektupları, İstanbul, 2010, p. 82.
7 Emin Cem Kahyaoğlu, Banka Garantileri, Beta Basım Yayım, İstanbul, 1996, p. 25.
8 Kahyaoğlu, p. 26.
9 Bengisu Önder, Banka Teminat Mektupları, Seçkin Yayıncılık, Ankara, 2020, p. 89.
10 Önder, p. 95.
11 Reisoğlu, p. 49.
12 Alper Özboyacı, Banka Teminat Mektuplarında Ödeme Talebi ve Buna Bağlı Sonuçlar, THD, V: 31, 2009, p.47 via Önder, p. 107.
13 Nami Barlas, Türk Hukuk Sisteminde Banka Teminat Mektupları, İstanbul, 1986, p. 63 via Önder, p. 107.
14 Barlas, Türk Hukuk Sisteminde Banka Teminat Mektupları, İstanbul, 1986, p. 63 via Önder, p. 107.
15 Yargıtay 11.HD, T. 26.9.1977 via Reisoğlu, p. 251.
16 Yargıtay 11.HD, T. 02.11.1993, E. 5977, K. 7001.
17 Sabih Arkan, Teminat Mektubu Veren Bankanın Hukuki Durumu”, Banka ve Ticaret Hukuku Dergisi, C.XVI, V.4, p. 62, Roeland Bertrams, Bank Guarantees in International Trade, Paris, 2004, p. 288-289 via Muhammet Ali Güler, Teminat Mektuplarının Paraya Çevrilmesi, Ankara, 2011, p. 89.
18 Yargıtay 11. HD, T. 28.10.2003, E. 2003/3378, K. 2003/10059.
19 Güler, p. 80.
20 Aral, Muhatap, p. 193 via Güler, p. 81; Doğan, Mektup, p. 231, Eryürek, p. 3, Kahyaoğlu, p. 125, Omağ, p. 340, Reisoğlu, Teminat, p. 388, Tekinalp, p. 539.
21 Aral, Muhatap, p. 193 via Güler, p. 81; Doğan, Mektup, p. 231, Eryürek, p. 3, Kahyaoğlu, p. 125, Omağ, p. 340, Reisoğlu, Teminat, p. 388, Tekinalp, p. 539.
22 Fikret Eren, Borçlar Hukuku Özel Hükümler, Ankara, 2018, p. 728.
23 Önder, p. 97
24 Yargıtay 15. HD. T.14.11.2018, E. 2018/2476, K. 2018/4486.
25 Önder, p. 103.
26 Önder, p. 110, 111.
27 Kahyaoğlu, p. 62. 28 Yargıtay 11 HD. T.
28.10.2003, E. 2003/3378, K. 2003/10059 via Önder, p. 115.
29 Kahyaoğlu, Banka Garantileri, Beta Basım Yayım, İstanbul, 1996, p. 69-70 via Önder, p. 116.
30 Önder, p. 128.
31 Önder, p. 131.
32 Reisoğlu, p. 315.
33 Reisoğlu, p. 307.
