ABSTRACT
Safe deposit box rental agreement is not specifically regulated in our legislation. For this reason, different opinions have been adopted in the doctrine about the legal nature of the safe deposit box rental agreement.
I. INTRODUCTION
In this article, while informing the individuals who receive safe deposit box rental service in line with the opinions in the doctrine on the liability of the bank for these damages and whether the damages will be compensated in case of damage to the valuable assets of the customers who receive safe deposit box service after the earthquake in our country, the definition of the safe deposit box rental contract, which is frequently preferred by people today due to the fact that banks have the characteristics of a trust institution, In addition to the general features such as its characteristics and legal nature, the rights and obligations of the customer, who is a party to the contract, and the obligations of the bank arising from the safe deposit box leasing contract, the limits of these obligations and the obligation to compensate the material and moral damages of the customer in case of breach of the obligation will be stated, and the care that the bank, which has more obligations and responsibilities than a prudent merchant, should show in its behaviour and the expansion of the limits of its responsibility will be emphasized.
From past to present, people have always felt the need to keep their material and immaterial valuable assets safe. People’s need to protect their tangible and intangible assets from natural disasters such as earthquakes and floods as well as dangers such as theft and loss has forced them to take measures against these dangers. Over time, people have started to rent bank safes, which are offered by banks, which have the characteristics of a trust institution, and are protected by taking the necessary security measures. After the earthquake disaster in our country, customers started to investigate the status of the safes in the banks, the responsibility of the bank in case of damage to their valuable assets and whether their losses would be compensated. With the rental agreement for safe deposit boxes, banks give their clients the option of using safe deposit boxes with enhanced security features that are less vulnerable to external factors. In our country, safe deposit box hire services are generally provided by banks. However, there is no regulation in our legislation stipulating that safe deposit box rental services can only be provided by banks. The customer who wants to benefit from safe deposit box rental service concludes a safe deposit box rental agreement with the bank. Since the safe deposit box rental agreement is not specifically defined in our legislation, there may be problems in resolving disputes. The main example of this is the determination of the limits of the bank’s liability in the event of damage to the customer’s tangible and intangible assets in the safe deposit box, the use of which is left to the customer by the bank, and the determination of the amount of tangible and intangible compensation to be paid to the customer. The contracts concluded by banks with their customers mostly contain general transaction terms. It will be examined in detail how the bank’s liability will be determined in case of damage to the tangible and intangible values of the bank customers, which is very important, the existence of general transaction conditions in the contract, the necessity to evaluate the balance of interests of the customer and the bank well, and the necessity to extend the bank’s liability against the customer who leaves his valuable assets in the safe deposit box due to the bank’s trust in the customer.
II. SAFE DEPOSIT BOX HIRE SERVICE
A. Definition and Subject of Safe Deposit Box Hire Agreement
Safe deposit box is defined as the use of a steel compartment within the bank’s premises by the bank to its customer for a certain fee. It is a sui generis contract between the bank and its customer, whereby the bank undertakes to leave the use of its safe deposit box1, which is suitable for the safekeeping and storage of its customer’s securities that do not constitute a criminal offence, to its customer, and the customer undertakes to pay a fee in return2. Banks have two separate safe-deposit box sections: the safe-deposit box where they keep their own movable assets and the safe-deposit box where they leave the use of the safe-deposit box to their customers. Customers can access the safe-deposit box the banks have set up for their use, even though they are not authorized or allowed to visit the safe-deposit box where the banks hold their own assets. Safe deposit boxes may consist of small compartments or may be in the form of rooms for the storage of assets such as larger works of art. The bank keeps one of the keys required to open the safe deposit box within its own structure and delivers the other key to the customer. The bank cannot open the safe deposit box with its own key, but can only help the customer to open the safe deposit box when the customer wants to access the safe deposit box. After the safe is opened, the bank officials will not know and see the transactions made by the customer in the safe3.
B. Legal Nature of Safe Deposit Box Rental Contract
Safe deposit box rental agreement is not specifically regulated in our legislation. For this reason, different opinions have been adopted in the doctrine about the legal nature of the safe deposit box rental agreement. According to one of the opinions in the doctrine, the safe deposit box rental agreement is called “ordinary lease agreement” on the grounds that it has the main elements of the lease agreement. Article4 299 of the Turkish Code of Obligations defines the lease agreement as ‘’A lease agreement is a contract in which the lessor undertakes to leave the use of a thing or the use and enjoyment of it to the lessee, and the lessee undertakes to pay the agreed rental price in return.’’ According to Reisoğlu, who is one of the authors supporting this view, safe deposit box rental services of banks are not within the scope of custody services, since the contract between the bank and its customer is not a vedanta contract, but a lease contract5. Unlike the ordinary lease agreement, the safe deposit box rental agreement is not made for the sole purpose of leaving the use of the safe deposit box to the customer. The purpose of the safe deposit box rental agreement is to keep the valuable and valuable items safe. Another opinion in the doctrine adopts the view that the safe deposit box rental agreement is a custody agreement in terms of its legal nature6. As an example of this view, the 11th Civil Chamber of the Court of Cassation7, in its decision numbered E. 2015/4801 K. 2015/11778, referred to the safe deposit box hire agreement as a custody agreement. Article 561 of the Turkish Code of Obligations defines the custody agreement as follows: “A custody agreement is a contract whereby the custodian undertakes to protect a movable left to him by the depositor in a safe place.” As understood from the text of the article, the performance of the bank in the custody agreement is to undertake to protect the tangible or intangible assets of its customer in a safe place. In a safe deposit box hire agreement, the primary performance of the bank is to leave the use of the safe deposit box to its customer. The bank customer may leave valuable goods in the safe deposit box or keep the safe deposit box empty. According to another opinion in the doctrine, safe deposit box lease agreements are sui generis agreements that do not contain the elements of the agreements regulated in the law8.
III. POSSESSION OVER THE SAFE AND SAFE CONTENTS
The bank has indirect, primary possession over the safe deposit box left to the use of its customer, and the customer who rents the safe deposit box has accessory possession over the safe deposit box9. The possession over the contents of the safe deposit box is controversial in the doctrine. According to one of the opinions in the doctrine; the bank and the customer renting the safe deposit box are in joint possession of the movables in the safe deposit box10. The reason for this is that the customer who rents the safe deposit box cannot access the safe deposit box without the bank’s initiative. According to another opinion, the sole and unmediated possessor of the securities left in the safe deposit box is the customer renting the safe deposit box11. The bank is not in the position of possession since it does not have actual control over the movable in the safety deposit box alone. This view is defended due to the reasons such as the fact that the bank only leaves the use of an empty steel safe deposit box to its customer, has no knowledge of the securities left in the safe deposit box and does not have the authority to open the safe deposit box on its own. The safe deposit box within the bank may be rented by more than one person. In the event that the safe deposit box is rented by more than one person, any of the lessors may be authorized to open the safe deposit box alone, or they may be authorized to open the safe deposit box only if they are all present together. If the safe can be opened with the presence of only one of the persons renting the safe, it is referred to as shared possession, and if the safe can be opened with the presence of all of the lessors, it is referred to as joint possession12. The customer is the only possessor without any means because the bank lacks actual control over the securities in the safe deposit box, the bank officers leave the customer alone while transactions are made in the safe deposit box, and they lack the authority to open the safe deposit box on their own initiative.
IV. OBLIGATIONS OF THE PARTIES AND THEIR LIABILITIES ARISING FROM BREACH OF OBLIGATION
A. Obligations of the Bank and Liabilities Arising from Breach of Obligation
1. The Bank Leaving the Use of the Safe Deposit Box to the Customer
One of the primary performance obligations of the bank in a safe deposit box hire agreement is to leave the use of the safe deposit box to the customer13. The bank is obliged to deliver the safe deposit box to the customer in a condition suitable for the use intended in the contract and to keep it in a condition suitable for use during the term of the contract. The safe deposit box must be highly secure and suitable for the protection of valuable assets in accordance with the purpose of the contract. The safe deposit box key must also be handed over to the customer with a report during the handing over of the safe deposit box.
2. Securing the Safe and Protecting the Safe from External Influences
One of the primary responsibilities of the bank in the safe deposit box rental agreement is to take all necessary precautions against threats like theft, fire, flood, opening the safe by using a different key, or forcibly opening the safe deposit box, even though the bank permits customers to use the safe deposit box for a fee14. One of the most important reasons for the customers to conclude a safe deposit box rental agreement is that the bank will take all kinds of measures to protect their tangible and intangible assets in the safe deposit box as promised in the contract. For this reason, bank safes should include a high-security steel component that is not exposed to outside influences and is not vulnerable to natural disaster, loss, or theft. The bank will take the highest level of security measures due to this trust in the bank and will show all the care that a prudent bank should show in matters such as the construction of the safe, the characteristics of its location, camera and alarm systems. The bank’s responsibility arises in the event of damage to the tangible and intangible assets in the safe deposit box, the ownership of which belongs to the bank customer. In case of theft or loss of the valuable assets of the customer in the safe deposit box, it is possible for the customer to compensate the bank for the loss in the presence of certain conditions. These are; the bank’s breach of contract by not ensuring the security of the securities in the safe deposit box, the occurrence of damage to the customer as a result of the breach of contract, and the establishment of an appropriate causal link between the breach of contract and the damage15.
3. Providing Customer Access to the Safe
Leaving the use of the safe deposit box to the customer does not mean that the bank has completely fulfilled its obligation. If two keys are required to open the safe after the delivery of the safe and the key, the bank officer must also be present during the opening of the safe when the customer requests access to the safe. The bank is required to confirm that the person attempting to access the safe deposit box is authorized to do so.
4. Bank’s Confidentiality Obligation
Banks are obliged to keep the secrets of their customers. In our legislation, the bank’s obligation to keep secrets is regulated under Article16 506/2 of the Turkish Code of Obligations and Article17 73 of the Banking Law. Article 73 of the Banking Law emphasizes that the customer secret should be interpreted broadly, and that the bank’s transactions with its clients should be interpreted as customer secrets, which cannot be shared with third parties. The bank, which is under the obligation to keep secrets, shall not share with third parties that its customer has rented a safe deposit box, the details of the agreement, the persons authorized to open the safe deposit box, the dates when the safe deposit box was opened and the passwords of the safe deposit box, if any, and shall prevent third parties from accessing this information. The leasing agreement is based on the trust relationship between the bank and its customer. In accordance with the provisions of the relevant law, the Bank shall not share the information belonging to its customer with third parties and shall duly fulfil its confidentiality obligation.
5. Compensation of the Customer’s Loss
There is a relationship of trust between the bank and its customer. The Bank is obliged to ensure the security of the safe deposit box at the highest level as intended by the customer in the contract, to install camera and alarm systems, to carry out the necessary inspections and to fulfil all its obligations in the contract during the contract period. In the event that the customer’s tangible or intangible assets in the safe deposit box are damaged due to the bank’s failure to fulfil its obligations properly, the bank is obliged to compensate the damage incurred by the customer. The burden of proof of loss belongs to the customer. As a requirement of the safe deposit box rental agreement, although bank officers are present during the opening of the safe deposit box, the customer is left alone after the opening of the safe deposit box is completed, and therefore the transactions made in the safe deposit box are not known or recorded by the bank officers. It may be difficult for customers to prove that the allegedly damaged assets are in the safe deposit box when they are requesting compensation for the damaged assets in the safe deposit box because the bank is unaware of the transactions performed by the client in the safe deposit box. It is recommended that customers who rent a safe deposit box should keep the documents, receipts and photographs showing their ownership and possession rights in order not to face any difficulties in terms of proof in case of damage to their securities in the safe deposit box in the future18. Customers can also prove their damages before the court with witness testimony, statement of the thief or photographs. In exercising its discretion, the judge shall consider the financial situation and occupation of the customer who rented the safe19. The client is entitled to provide any and all forms of evidence, including witnesses, to support his assertions that the safe contains valuable items that have been harmed20. If it is determined that the valuable assets of the customer are found damaged in the safe deposit box, the bank will compensate the material and moral damages.
6. Records that Remove the Bank’s Liability
Banks include a clause in the safe deposit box rental agreement stating that they will not accept liability in case of damage to the movables in the safe deposit box belonging to the customer. With this clause, the bank states that they do not accept any liability in the event that the securities in the safe deposit box are stolen, lost or damaged due to force majeure such as earthquake or flood21. It is clearly stated in Article22 115/1 of the Turkish Code of Obligations that the bank cannot remove its liability arising from a willful or grossly negligent breach of its obligation to ensure the safety of the safe deposit box at the highest level and to protect the safe deposit box against any external influences. As explicitly stated by the Law, the records in the contract stating that the bank will not be liable for damages arising as a result of intent or gross negligence are absolutely null and void. The bank is liable and obliged to compensate for the damages incurred by the tangible and intangible assets in the safe deposit box. The bank may be held liable in accordance with Articles 112 and 116 of the Turkish Code of Obligations in the event that the movables belonging to the customer are damaged due to the intent, gross and slight negligence of the bank employees. Another clause inserted by the bank in the safe deposit box lease agreements is that the bank shall not be liable for the damages arising from the customer’s forgetting or losing the key to the safe deposit box on the safe deposit box. In the relevant record, it is stated that the bank must be notified in writing in case of loss of the key, otherwise the bank will not be liable, but the non-liability record of the bank that does not prevent the third party who has the key from opening the safe will be invalid according to the provisions of Articles 115 and 116/3 of the Turkish Code of Obligations. Thus, it is stated that the bank will be liable in case the key is lost or forgotten on the safe deposit box and will have to compensate the damage23.
7. Breach of the Bank’s Obligation
Pursuant to the safe deposit box rental agreement, there are two essential performances to be fulfilled by the bank. These are; the bank’s delivery of one of the keys to be used for opening the safe to the customer and leaving the use of the safe, which is suitable and secure for the customer to store its valuable assets, to the customer. In the event that the bank fails to fulfil one of the primary performance obligations at all or as required, the customer may default the bank pursuant to Article24 117 of the Turkish Code of Obligations. Article25 112 of the Turkish Code of Obligations states that the debtor shall be obliged to compensate the creditor for the loss incurred by the customer in the event that the debtor fails to fulfil its obligations under the contract at all or as required, unless the debtor proves that no fault can be attributed to him26. Pursuant to Article27 506/3 of the Turkish Code of Obligations, the criterion of whether the bank has duly fulfilled its primary performance obligations is measured by whether it acts in accordance with the highest degree of care that can be expected from a prudent bank. There are also decisions of the Court of Cassation stating that the bank shall be liable for the damages arising from the bank’s failure to fulfil its primary performance obligations or breach of its duty of care. As a matter of fact, in the decision of the 2nd Civil Chamber of the Court of Cassation No. 2022/3467 Decision 2023/1016, it was stated that the bank shall be liable for the damages incurred by the other party as a result of the opening of the safe by only one person, even though the safe is rented by two persons and the contract stipulates that the safe can only be opened if two persons apply together, and the bank must compensate the damage. The fact that the bank officers leave the customer alone after opening the safe and do not see the transactions made in the safe causes difficulties in terms of proving that the customer’s securities are in the safe after the loss of the securities. In the decision of the 11th Civil Chamber of the Court of Cassation Main 2019/1779 Decision 2020/5237; It stated that the customer, who is a party to the safe deposit box rental agreement, can prove the valuables claimed to be in the safe deposit box with all kinds of evidence. It is the result of Article 42/1 of the Turkish Code of Obligations that the customer may rely on any evidence such as photographs, videos, invoices or documents regarding the valuables claimed to be in the safe deposit box. In the event that the bank breaches its obligations by acting contrary to its primary performance obligations, the bank is required to compensate the damages incurred by executing the tort provisions under Article 49 of the Turkish Code of Obligations28.
B. Customer’s Obligations and Responsibilities arising from Breach of Obligation
The customer’s primary performance obligation under the contract is to pay the contract price29. As stated in Article 316/1 of the Turkish Code of Obligations, the customer is obliged to pay the price specified in the contract even if the customer does not use the safe deposit box during the contract period. If the customer fails to fulfil his/her obligation to pay the contract price, the bank may apply the provisions regarding the debtor default against the customer. The customer is obliged to use the safe deposit box carefully as specified in the contract. In addition, the customer cannot put items that are not suitable to be kept in the safe deposit box or prohibited by law into the safe deposit box. The customer must also carefully protect the key given to him for opening the safe and must not give it to a third party. The key given to the customer should not be forgotten on the safe deposit box, the key should not be replaced unless authorized by the bank, and the customer should notify the bank in writing if the key is lost. Pursuant to Article 323/1 of the Turkish Code of Obligations, the safe deposit box cannot be rented or transferred by the customer unless the written consent of the bank is obtained. If the customer breaches the obligation to use the safe deposit box with care, the bank has the right to terminate the contract immediately. In the event that the customer’s breach of the obligation causes damage to the movable assets in the safe deposit box, the bank may be released from liability by proving that the damage occurred as a result of the customer’s breach of the customer’s duty of care.
V. CONCLUSION
Nowadays, instead of keeping their valuables in their homes as in the past, people keep them in safe deposit boxes in banks to protect them from risks such as theft, loss or natural disasters. With a safe deposit box rental agreement, the bank provides the customer with a safe deposit box with steel and security measures suitable for the storage of the customer’s valuable assets and the use of the key necessary for the customer to access this safe deposit box, while the customer is obliged to pay a fee. Therefore, it is a contract that imposes a debt on both parties. As a result of the trust placed in the bank by the customer, valuable tangible or intangible assets belonging to the customer are left in the safe deposit box within the bank. There is a relationship of trust between the bank and the customer. As a result of the trust relationship and the contract concluded, the rights, authorizations and obligations of the parties arise. Banks, as a trust institution and under an objective duty of care, have the obligation to ensure the security of the safe deposit box at the highest level and to protect the safe deposit box against external influences. In this article, the obligations of the bank and the responsibilities of the bank in case of breach of obligation are emphasized, the reasons why and how the responsibilities should be extended, the invalidity of the general transaction conditions in the contract concluded between the bank and its customer, and how to determine the responsibility of the bank in the event that the material and moral values of the bank customers are damaged after the earthquake disaster in our country are examined.
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FOOTNOTE
1 İbrahim Kaplan, Banka Sözleşmeleri Hukuku, Ankara 2020, p. 130.
2 Fikret Eren/ Ünsal Dönmez, Eren Borçlar Hukuku Şerhi, Ankara 2022, p. 274.
3 Ahmet Mithat Kılıçoğlu, Ankara 2021, p. 218.
4 04.02.2011 dated and 27836 numbered Turkish Code of Obligations published in the Official Gazette.
5 Seza Reisoğlu, Bankacılık Kanunu Şerhi, 2nd Edition, Ankara 2015, p. 302.
6 Heller, Rn. 60 transmitted by: Kaplan, Banka Sözleşmeleri Hukuku, Ankara 2020, p. 131.
7 11th Civil Chamber of the Court of Cassation Date 10.11.2015 Main 2015/4801, Decision 2015/11778.
8 Eren/ Dönmez, p. 275.
9 Kaplan, p. 222.
10 Heller, Rn. 23 transmitted by: Kaplan, p. 223.
11 Lotz, Rn. 34 transmitted by: Kaplan, p. 224.
12 Kaplan, p. 221
13 Kılıçoğlu, p. 218.
14 Kaplan, p. 225.
15 Kaplan, p. 226.
16 Turkish Code of Obligations.
17 01.11.2005 dated and 25983 numbered Banking Law published in the Official Gazette.
18 Kaplan, p. 227.
19 Roesle, Rn. 120 transmitted by: Kaplan, p. 227.
20 11th Civil Chamber of the Court of Cassation Main 2019/1779 Decision 2020/5237.
21 Kaplan, p. 131.
22 Turkish Code of Obligations Article 115/1.
23 Kaplan, p. 133.
24 Turkish Code of Obligations Article 117.
25 Turkish Code of Obligations Article 112.
26 Kaplan, p. 132.
27 Turkish Code of Obligations Article 506/3.
28 11th Civil Chamber of the Court of Cassation Main 2019/1779 Decision 2020/5237.
29 Pınar Pehlivan/ Hatice Yurtsever, Türk Bankacılık Sektörü ve Mali Yükümlülükleri, 1st Edition, İstanbul 2016, p. 93.
