ABSTRACT
The general right of retention regulated in the Turkish Civil Code (“TCC”) numbered 4721 is a right arising automatically and having in-kind effects upon the realization of its legal conditions. Some of the conditions stipulated in the law are positive conditions and they must be fulfilled, while others are negative conditions, that is, issues that should not be found in order to have the right of retention. The subject of the right of retention is movable property and negotiable instruments. It is not possible to establish the right of retention on real estate. In this article, after referring to the legal conditions of the right of retention, we examine the terms and results of the right of retention on aircraft. Following a discussion of the legal status of aircraft, an assessment is made as to whether right of retention can be established. After this evaluation, the procedure regarding the foreclosure of aircraft by means of general foreclosure is explained.
The right of retention is the right of a creditor to hold, with the debtor’s consent, the debtors’ movable property or negotiable instruments in possession until a debt that is due is paid. The property must in nature have a connection with the debt. This article discusses the general right of retention, the terms and consequences of the right of retention, and the use of the right of retention on aircraft.
I. INTRODUCTION
The right of retention is the right of a creditor to hold, with the debtor’s consent, the debtors’ movable property or negotiable instruments in possession until a debt that is due is paid. The property must in nature have a connection with the debt. This article discusses the general right of retention, the terms and consequences of the right of retention, and the use of the right of retention on aircraft.
II. RIGHT OF RETENTION UNDER TURKISH LAW
A. Definition of the Right of Retention
The general regulation on the right of retention is set out in TCC Article 950 and rest. According to paragraph I, “The creditor may confiscate the movable property or negotiable instruments belonging to the debtor until the debt is paid, if his/her possession is with the consent of the debtor and if the debt is due and the property has a connection with the debt.” As understood from the provision of the article, the right of retention gives the creditor, with the consent of the debtor, the right to not return any movable property or negotiable instruments left in their possession. The right of retention is defined as follows in the doctrine: “In the event of legal conditions, it is a real right that gives the creditor the power to hold back and turn the movable property and negotiable instruments into money, which belongs to the debtor, which must be returned and possesed by creditor, by not returning them”1. With all the conditions stipulated in the law, the creditor has the right of retention without and need for further action.
B. Legal Nature of the Right of Retention
“There is consensus that the right to confiscate in Turkish Law is a real right to property related to claim and is a type of movable property pledge arising from the law"2. Looking at the TCC, the right of retention is regulated under the provisions of the pledge of movable property under limited real rights. The right of retention gives the creditor the right to confiscate the movable property or negotiable instruments and turn it into money if the debt is not paid. In addition, a creditor with the right of retention has a priority over other claims to the debtors’ property3. These effects arise from the fact that the right of retention is in kind. Since the right of retention depends on the claim, it is an accessory right. Unless the original claim is settled for one of the reasons that settle a debt, the right of retention continues to exist.
C. Property Subject to the Right of Retention
Under the TCC 950/1 and 951/1, property subject to the right of retention is “movable property or negotiable instruments that are convenient to be converted into money due to their feature”. “The reason that the right of retention is only possible on movable property and negotiable instruments is that the right of retention is a right based on possession and possession can be possible on items that are described as property in law"4. The possession of property under the right of retention must be with the consent of the debtor. We will look at this in more detail in the section on the terms of the right of retention.
The movable property distinction is made for items which can change location. “It doesn't matter if this displacement is accomplished by the stuff's own power or by an externally applied force"5. The fact that the location of the items can change without harming the essence of the item is sufficient in terms of movable item status. According to Article 762 under the title “TCC Movable Property Ownership”, “The subject of movable property is natural forces that are suitable for acquisition and material things that cannot be covered by their property and are not within the scope of real estate ownership.” The Article makes clear that movable property is movable items and natural forces that can be possessed.
In summary, only movable items that can be converted into money due to their qualities and valuble items may be subject to the right of retention. However, the right of retention cannot be applied to things such as family pictures, diplomas, letters, account books and things that will be incarnated in the future, as well as documents that are considered proof only and do not have a monetary value6, because the right of retention is a right to the value constituted within the property7. We have stated that the right of retention within the scope of Article 950 of the TCC is established on movables; immovable property, real estate, does not come within the scope of the right of retention.
Legal Status of Airplanes
In Turkish Civil Aviation Law ("TCAL") numbered 2920, “all kinds of vehicles capable of take off and capable of navigating in the air” are included within the scope of aircraft. Airplanes are also treated as aircraft in accordance with TCAL because they have the ability to take off and navigate in the air.
Article 65 of TCAL refers to the legal features of aircraft: “Aircraft are subject to the provisions of movable property unless there is a contrary provision in this law”. This means that aircraft are subject to movable property provisions. Therefore, the legal nature of airplanes is that of movable property and they are therefore subject to the provisions of movable property.
D. General Right of Retention Conditions
TCC article 950/I stipulates, “Where a debt is due and the item has a connection with the receivable, the creditor can hold the movable or negotiable instruments that belong to the debtor and include the possession of his/her consent until the debt is paid.” Articles 951/I and II provide that: The right of retention cannot be exercised on movable property that are not suitable to being converted into money. The right of retention is inapplicable in cases incompatible with the obligation assumed by the creditor or instruction that the debtor gives at the time of delivery or had given earlier and is incompatible with public order. These articles together provide the general conditions of the right of retention. Since the right of retention is a movable pledge arising from the law, it can arise automatically by providing all of the conditions specified in the law. These conditions can be positive and negative.
1. Positive Conditions
a. The creditor must possess the debtor's consent to hold his/her movable property or negotiable instruments
Under Article 950 of the TCC, the creditor must have the debtor's consent to possess the movable property or negotiable instruments he/she holds. TCC Article 973 stipulates that anyone who has actual control over something is the possession of that thing. For immovable property, the principle of public disclosure is supplied by the land registry whereas for movable property, it is supplied by possesion8. One of the conditions that permits right of retention to be claimed against third parties is possession of property with the consent of the debtor. In cases where the debtor gives no consent, where, therefore, it can be claimed that the creditor acquired the movable property or the negotiable instruments without the knowledge of the debtor or obtained it by force, the creditor has no legal right of retention.
As a rule, the creditor must directly possess the property. However, if the debtor has removed the property such that the creditor cannot access it, the creditor will be able to exercise his/her right to confiscate the property and become the direct possessor9. Another point we need to mention is that while the right to confiscate must be established on the debtor’s movable property or negotiable instruments, TCC 950/III makes an exception: “The creditor also has the right of retention to the extent that having possession of items in goodwill is preserved on movables that do not belong to the debtor.” In accordance with the principle of protecting trust, creditors may have the right of retention to the extent that their goodwill is maintained. If the property is owned by a third person, if the property is given by the debtor to the creditor with the consent of the owner, or if the creditor does not know that the item in question belongs to a third person and does not need to know, then the right of retention applies if all other conditions are met.
b. The receivable must be due
Another condition listed in TCC 950/I is that the debt must be due. Being due means that the debtor has an overdue debt that the creditor can request from the debtor. According to Oğuzman, it may be a debt that the person will receive or take, make, give or not10. Since the ultimate aim of the right of retention is to get the receviable by converting the debtor’s property that is in the creditor’s possession into money, on the basis of default provisions set out in the Turkish Code of Obligations (“TCO”) numbered 6098 (Article 96/I or 106/II et al.), initially the conversion of receivables other than money should be taken11. An exception is granted in Article 952 of the TCC to the condition of due debt. If the borrower fails to pay, the lawmaker states that the creditor can exercise his/her right of retention. According to Oğuzman, insolvency occurs when the debtor has suspended payments, demanded a concordat deadline, received proof of insolvency, and bankruptcy has been initiated12.
c. There must be a connection between the movable property or negoitable documents that are transferred to the creditor's possession and the receivable
The law provides various criteria to determine whether there is a connection between the movable property or negotiable instruments that the creditor possesses and the receivable. The first is the expression in terms of “quality”, as mentioned in TCC Article 950/I. Second, the provision in TCC Article 950/II says, “If the possession and receivable arise from a commercial relationship, this connection is assumed between the traders.” That is, is there a “qualitative” or “commercial” connection for the existence of this connection needs to be determined.
According to Oğuzman, there should be a natural or actual connection between the possession obtained from the debtor and the receivable13. There are, of course, several criteria for revealing this connection, but they cannot go beyond giving us a basic idea. It is stated that what determines whether there is a connection or not is the rule of good faith, defined in Article 2 of the TCC14. The principle of good faith, which is one of the basic principles of law, guides us in evaluating whether there is a connection between the receivable and the property subject to the right of retention. According to Köprülü and Kaneti:
If there is a natural and economic commitment between the objects that the creditor possesses and the receivable that will be provided under the right of retention, a natural and economic commitment that would violate the rules of good faith without the satisfaction of the creditor, according to the intended goal, the opinion of the parties or the business is dominant15.
This gives us an idea about whether there is connection or not. If the debtor requests from the creditor the property subject to the right of retention without payment of the debt, we can say that the connection exists and is accepted if it is against the rule of good faith according to the judgment that dominates business life. In addition, the costs related to the provision and maintenance of the property subject to the right of retention, any pecuniary damages and damages caused by it, and the receivables arising from the legal or actual relationship on which the possession of it is based, are also linked16. In other words, it is clearly possible to say that any costs related to the right of retention are qualitatively linked and that the connection required by law has been fulfilled. TCC 950/II states, “If possession and receivable arise from a commercial relationship, this connection is assumed between traders.” Another aspect of accepting the existence of the connection is that both parties are traders and possession and receivable have arisen from a commercial relationship. The trader will be able to exercise his/her right of retention on any legal relationship, even if third party negotiable instruments or movable property has been possessed, and even if the receivable has arisen from another legal relationship17. In other words, in cases where both parties are traders, it is possible to say that there is a connection between the possession and receivable and that they arose from a commercial relationship regardless of how the relationship actually arose. Regarding the qualitative connection, it is thought that the reason why the condition for a commercial connection is not rigidly applied is “due to the fact that transactions existing in commercial life cannot be handled individually and are intertwined with each other”18.
2. Negative Conditions
a. Failure to establish a right on movable property that is not eligible to be converted into money
TCC Article 951/I states “The right of retention cannot be exercised on movables that are not eligible to be converted into money.” The provision states that the right of retention can only be exercised on movables that can be converted into money. It is understood from this provision that movables exist that are not eligible to be converted into money and that a right of retention cannot be imposed on them. The right of retention cannot be established on movables such as identity cards, passports, diplomas, or the debtor's insurance policies, all of which cannot be legally converted into money19.
b. Failure to exercise the right of retention due to an obligation assumed by the creditor or with the instruction of the debtor at or before the time of delivery
In order to exercise the right of retention, the debtor must not be under a commitment to the creditor, which could mean waiver of the right. This commitment can be made by contract. According to Cansel, this commitment can be made before or after the creditor has direct possession of the movable property or negotiable instruments20.
For the right of retention to be exercised, the creditor should not have been instructed, during or before delivery, not to use the right of retention on the movable property or negotiable instruments. The law does not prescribed how this instruction will be given. It is therefore assumed that this instruction can be given explicitly or implicitly. If the debtor's instruction not to exercise the right of retention is given explicitly, no dispute will arise. However, if this instruction is given implicitly and such an order can be deducted from the circumstances and conditions of the good faith rule and the nature of the work, it could be concluded that the right of retention cannot be exercised21.
c. Failure to exercise the right to retention in cases incompatible with public order
TCC Article 951/II implies that the final negative condition is public order. The concept of public order is wide and it is difficult to draw boundaries. It is therefore necessary to evaluate whether the exercise of the right of retention is contrary to the mandatory provisions regarding public order in each concrete case. As an example, the right of retention cannot be exercised on military uniforms and military equipment, which it is forbidden to sell22. The right of retention cannot be exercised on drugs or historical artifacts that it is forbidden to sell or use due to violation of public order23. In addition, it is possible to say that the right of retention cannot be established on items that are not subject to foreclosure in Article 82 of the Enforcement and Bankruptcy Law No. 2004, even if the conditions specified in the law are provided24.
E. Terms and Results of the Right of Retention
The right of retention is the right that gives a creditor, upon fulfillment of the relevant legal conditions, the power to keep in his/ her possession and to turn into money the debtor’s movable property or negotiable instruments when the debt is not paid, and to return those movable property or negotiable instruments on payment of the debt25. Accordingly, the right of retention is a right that gives a creditor the power to refrain from returning any movable property or negotiable instruments in his/her possession and to turn them into money if the debt is not paid.
1. The Right to Refrain from Returning Movable Property and Negotiable Instruments
A creditor with the right of retention may refrain from returning property in his/her possession until the debt is paid. Movable property and negotiable instruments equal in value to his/her receivable may be subject to the right of retention within the framework of the rule of good faith26. Since the right of retention is a right that applies automatically upon realization of the relevant legal conditions, the creditor must declare, to the debtor or third party, his/her intention to exercise this right. This is due to it being a legal plea27. The property in the creditor's possession may not belong to the debtor. Under Article 950/III of the TCC, “The creditor also has the right of retention on movables that do not belong to the debtor in the extent that acquiring possession with bona fides is preserved.” In accordance with the principle of protecting trust, a creditor with the right of retention has this right in the event that he/she does not know the property in his/ her possession belongs to a third party or he/ she is not able to know.
A creditor can protect property in his/her direct possession in two ways: protection by force and protection by litigation. Protection by force is set out in Article 981 of the TCC. The lawmaker states that the possessor can prevent any extortion or attack by force. It gives the creditor who has possession of the property the opportunity to protect his/her possession by taking it out of the hands of another during an action or while running. The lawmaker orders that in order to justify the force applied, it must be in proportion to the attack or extortion. Protection by litigation is regulated in Articles 982 and 983 of the TCC. Article 982 of the TCC states: Anyone who extorts something that someone else possesses is obliged to give it back, even if he/she claims he/she has a superior right over that thing.
If the defendant proves immediately that he/ she has a superior right to take that thing back from the plaintiff, he/she can refrain from giving it back.
The case is for the return of the thing and remedy of the loss.
This Article covering the right to sue in a case of extortion of possession stipulates that someone who extorts may refrain from giving the thing back if he/she has a superior right to it and can immediately prove that fact. Article 983 of the TCC, which regulates the right to sue in the case of an attack on possession, determines that a suit may be filed in order to end the attack, prevent its cause, and remedy the damage.
2. Obligations Imposed on a Creditor with the Right to Refrain from Returning the Property
In the exercise of the right of retention, the creditor takes on some obligations set out in the law for the movable property that he/ she has in his/her hand. Article 953 of the TCC states that if the debt is not fulfilled or if sufficient security is not provided, the impounded things can be turned into money in accordance with the provisions of the pledge on delivery. A creditor with the right of retention is obliged to give the impounded things to the debtor if the debt is paid or if sufficient security is provided.
Another obligation imposed on the creditor is the obligation to store and protect the movable property or negotiable instruments given that the creditor is in the position of direct possessor, which, while not regulated by law, arises in accordance with Article 2 of the TCC, the rule of good faith28. Property impounded by the creditor must be returned to the debtor if the debt is paid or if sufficient security against the debt is provided, and, for this reason, the creditor has an obligation to store and protect that property. There are various opinions in the doctrine about the dimensions of this obligation to protect. However, we consider that the creditor must take measures in respect of the quality of the movable property as designated by the rule of good faith. For instance, the creditor must evaluate the storage and protection conditions for each concrete item of movable property that the creditor has in his/her possession. If, for example, the said movable property is fragile or perishable and can deteriorate quickly, more robust measures must be taken for its storage and protection. However, if the property is not fragile or perishable due to its nature and does not require special storage and protection, the protective measures taken by the creditor do not need to be so robust29. If any decrease in the value of the movable property occurs as a result of the creditor failing to carry out his/her obligations, or if the movable property disappears, the creditor will be liable with the implementation of movable pledge provisions by comparison. In accordance with Article 945 of the TCC, “The creditor is liable for any damage caused by the disappearance, perishing, or decrease in the value of the pledged movable unless he/she proves that these arose without his/her fault.” The creditor shall not be liable for any damage that occurs if he/she proves he/she was not at fault.
A further obligation which the creditor must observe is the obligation not to use the things in his/her possession. While there is no special legal regulation regarding this obligation not to use, it is expected in accordance with the rule of good faith. The creditor shall not use the movable property or the negotiable instruments he/ she has in his/her possession, nor to transfer them to a third party to use them30. An exception to this that is accepted in the doctrine is where the creditor and debtor come to an agreement that the impounded property can be used31. Therefore, under such an agreement, the creditor no longer has a non-use obligation in terms of what he/she has impounded.
3. Turning the Impounded Moveable Property or Negotiable Instruments into Money
According to Article 953/I of the TCC, “If the debt is not fulfilled or if sufficient security is not provided, the creditor, by notifying the debtor in advance, may demand turning into money the impounded things in accordance with the provisions of the pledge on delivery.” Turning into money in accordance with the provisions of the pledge on delivery, according to Article 23/II of the Enforcement and Bankruptcy Law, “since the term “movable pledge” includes pledges on delivery, pledges stipulated in Article 940 of the Turkish Civil Code, pledges on commercial enterprises, the right of retention, pledges on receivables and other rights”, turning things that are subject to the right of retention into money shall be done in accordance with the relevant conditions. The first condition for turning impounded property into money is that the debt has not been fulfilled and sufficient security has not been provided. Once this condition is met, the debtor is notified that the creditor shall collect his/her receivable by turning into money the things that are subject to his/her right of retention. The reason for this notification is that it gives the debtor the opportunity to intervene prior to his/her movable property or negotiable instruments being turned into money, which he/she can prevent by paying his/her debt or by providing sufficient security. Conditions regarding the specific form of this notification are not stipulated in the law. It is necessary and sufficient to inform the debtor in writing or verbally that the impounded thing shall be turned into money32. According to Akıntürk and Akipek, in accordance with Article 146 of the Enforcement and Bankruptcy Law, an order of payment sent by the execution office to the pledge owner and the debtor is an alternative to notification33.
a. Turning into Money Through Enforcement Proceedings Without Judgment
The creditor must first make a request to issue enforcement proceedings in accordance with Article 145 of the Enforcement and Bankruptcy Law. Under Article 58/III of the Enforcement and Bankruptcy Law, the request must clearly state “the amount of the receivable or demanded warrant in Turkish currency, and the amount of interest on the receivables with interest and the date it was charged, and if the receivable or warrant is in foreign currency, the interest and rate at which the receivable is requested”.
Besides the information contained in Article 58 of the Enforcement and Bankruptcy Law, while making the request to issue enforcement proceedings, the creditor must also state separately “what the pledged property is”, in accordance with Enforcement and Bankruptcy Law Article 145.
In cases where the receivable is not a money debt, where it is a debt of “fulfilment” or “giving”, it is necessary to designate the amount of the receivable that is subject to the request to issue enforcement proceedings34. If the necessary conditions are met, the bailiff sends an order of payment to the debtor and the owner of the pledged property in accordance with Article 146 of the Enforcement and Bankruptcy Law. The order of payment notifies the payment period of 15 days and, if no objection is made within seven days and if the debt is not paid within 15 days, the property that is subject to retention shall be sold. If the debtor pays the debt within this payment period, the right of retention shall end and the creditor must return the impounded property to the debtor. Or, if the debtor has objected to the payment order, which he/she may do in terms of the debt and the right of retention, enforcement proceedings shall cease. Article 147 of the Enforcement and Bankruptcy Law states that if the debtor clearly did not object to the right of pledge/the right of retention, he/she will have accepted the existence of the right of pledge/ the right of retention, and he/she cannot afterwards make this a subject of discussion. Since the order of payment is sent to both the debtor and the owner of the property, both have the opportunity to object to it. Alternatively, debtor and owner of the impounded property can preclude the property being turned into money by paying the debt.
b. Turning into Money Through Enforcement Proceedings with Judgment
In accordance with the Enforcement and Bankruptcy Law, the creditor must have a document equal to a judgment in order to make enforcement proceedings with judgment. This is according to Article 38 of the Enforcement and Bankruptcy Law: “Conciliations that are made in court, acceptances, and sua sponte drawn up Notary bills that contain acknowledgment of the money debt, guaranties for appeals at divisional and supreme court, and guaranties in the execution office are subject to the provisions regarding the execution of the judgments. The guaranties of execution in this Article is in the same manner as joint guaranty.” In the event that the creditor has one of the documents listed in this Article, it is possible to turn into money through the enforcement proceedings with judgment the thing that is subject to retention. In this proceeding, an order of payment is also sent to the debtor and owner of the impounded property. Unlike enforcement proceedings without judgment, the debtor and property owner have two options here: either they can request the return of the property by paying the debt, or they can prevent the sale of the property by taking the decision to ensure suspension of the execution regulated in Article 33 of the Enforcement and Bankruptcy Law.
c. Turning into Money in the Case of Debtor’s Bankruptcy
In the event that the debtor goes into bankruptcy, in accordance with Article 185, the creditor may ensure that the movable property in his/her possession is turned into money by the bankrupt's estate by invoking his/ her right of priority reserved as taking it to the bankrupt’s estate, or he/she may take out enforcement proceedings through turning the property into money by applying to the bankrupt debtor’s estate after bankruptcy35.
d. Turning into Money Through Private Sale
It is incorrect to suggest that the debtor has the right to turn into money the property in his/her possession only in accordance with provisions of movable property. According to Cansel, the parties may decide on a special sale of the movable property despite the execution, and the creditor can purchase the movable property36. The creditor may purchase the movable by paying money for the movable property. Or, in the event that the movable property is of a sort that can deteriorate, it is accepted that the creditor is authorized to turn the property into money by selling it, even if there is no special agreement between him/herself and the debtor37. The creditor must give the debtor the remaining amount after collecting his/ her receivable from the sale price. In all these transactions, the creditor must act with regard to the interests of the debtor in accordance with the rule of good faith. e. Realization by Clearing According to Article 139 of the TCO, “If two people owe some money or other identical acts to each other, if both debts are deferred, each of them can swap their receivable with their debts.” As an example, if the creditor with the right of retention is also a debtor, in return for the movable property of the debtor that the creditor holds, the two parties can make a clearing declaration which results in a reduced debt amount (Article 143 of the TCO).
Realization by clearing is the method in practice used by banks. In lieu of the confinement of the bonds they have issued, banks can make a clearing declaration for customers’ due receivables. Both banks in a position as debtor and customers in a position of creditor, can convert the bonds as long as they fulfill the conditions of the clearing explained in Article 139 of the TCO38.
f. Realization of Registered and Promissory Negotiable Instruments
TCC Article 953/II states “The enforcement office performs the necessary actions rather than the debtor in order to convert the registered negotiable instruments, which is bound with the right of retention, to money.” Although the provision only mentions negotiable instruments with registered names, it is accepted that the same opportunity is applicable for promissory negotiable instruments39. For registered negotiable instruments, since the payment will only be made to the authorized payee, the enforcement office makes the necessary transactions to convert the negotiable instruments in to money rather than the debtor.
III. PROCEDURES AND PRINCIPLES REGARDING FORECLOSURE ON AIRCRAFT
We will touch upon the procedures and principles regarding foreclosure on aircraft, which have a very significant place in airline transport. Airport operators have contracts with airline companies to ensure the continuity of an airport’s operational activities. Due to these various contracts, an airport operator sometimes becomes a creditor. We will first evaluate whether an airport operator in position of creditor can apply the general right of retention as outlined in this article.
As previously explained, the right of retention is ipso facto a right arising from the fulfillment of legal conditions. The first condition set out in Article 950/I of the TCC is the condition that the lien belongs to the debtor and that possession is with his/her consent. Since airport operators have legal personality, they can be in direct possession through their representatives40. As already mentioned, according to TCAL, the legal status of aircraft is movable property. In order for the first condition regarding the right of retention to be fulfilled, the airport operator must have de facto control over the aircraft that are the subject of the right of retention. In accordance with the provisions of the TCC, we believe that aircraft cannot be subject to the right of retention. The reason for this is that the airline operator is not in possession in the manner that allows the exercise of the right of retention in accordance with the provisions of the TCC.
However, although it is considered that aircraft are not subject to the right of retention as laid out in the TCC, aircraft can be subject to execution proceedings through general foreclosure. Proceedings through general foreclosure are possible in terms of business transactions that are subject to money and collateral receivables. In order to be able to proceed through general foreclosure, the receivable must not be secured with a pledge. Since receivables arise from contracts concluded by airport operators with airline companies, it is possible to proceed with a general foreclosure in terms of these receivables. IIK, the regulations regarding the attachment of movable and immovable property are included in Article 85 and beyond. Aircraft are also subject to a unique record, the land registry of immovables. The aircraft foreclosure process is carried out by recording in this special registry. Aircraft subject to the special registry are registered to the Turkish civil aircraft registry. In order for aircraft to have the right in rem and for third parties to dispose of the aircraft, these procedures must be recorded in the Turkish civil aircraft registry. The creditor airline company makes a request through the creditor’s deputy with determination of the receivable finalized in the execution file.
In order to place a lien on aircraft belonging to the borrower, the process continues with a writ of execution that is entered into the aircraft registry by the enforcement office and presented to the Directorate General of Civil Aviation. In practice, this process is called record lien. The transfer of ownership of an aircraft to third parties is prevented by it being registered in the registry, which also enables other right holders to be aware of the lien, if any. In order to put foreclosures on the record of an aircraft, the following information must be included in the writ of execution written by the executive directorate: creditor, debtor, the amount of debt, the nationality and registration mark of the aircraft, the type and model of the aircraft, its manufacturer, year of manufacture, and serial number. Once completed, the process of notification of foreclosure to the debtor and entitled persons or legal entities begins. Following notification, relevant persons may object to the foreclosure, in accordance with Article 103 of the İİK. If there is no objection, the process continues with appraisal. Regarding the appraisal of the aircraft, the decision of the Court of Cassation 12. HD., dated 30.12.2004 and numbered 22062, is as follows: “Considering the qualities of the tendered personal property, it is anomalous to put the aircraft on sale without determination of value by experts.” The appraisal of the aircraft should be made by experts who understand the work and not by executive offices, otherwise either party may claim irregularity of the appraisal. Concerned parties are notified of the aircraft appraisal carried out by an expert and they may file an appeal within seven days of notification. If an appeal is not filed or the case is concluded, the appraisal becomes final. Following finalization, the concerned parties are notified of the sales date appointed by the executive office. Due to the high economic value of aircraft, the sales date is declared in national or local newspapers and the sales phase beings. On the day of the sale, if the creditors and other bidders apply, the auction procedure is carried out. The bailiff collects offers for the goods subject to foreclosure and the aircraft subject to sale is then tendered to the highest offer submitted. Once the tender is submitted, any claim for annulment of the tender can be opened within seven days. If neither the concerned nor tenderers object during this period, the tender becomes final. The person who wins the tender pays VAT, charges, fees, and the tender price and the sales process is concluded, and the creditor who converted the movable property into money on the basis of his/her right of retention collects his/her receivable over the sale price.
IV. CONCLUSION
This article explains the legal nature of the right of retention set out in the TCC and the legal status of aircraft. As explained above, the right of retention is ipso facto a right, given fulfillment of all legal conditions, and allows a creditor to keep the debtor's movable property or negotiable instruments until the creditor is satisfied. Since the right of retention is a right in rem, the creditor may refuse to give the debtor or a third person the movable property or negotiable instruments in his/her possession until his/her receivable is paid. Also the creditor with the right of retention has the option to cover the amount of money he/she is eligible to receive by converting movable property or negotiable instruments into money. In order to convert these into money, the debtor or the third party owner is first informed by notification. After notification, if the debtor or third party does not pay the debt or provide assurance for the debt, the creditor with the right of retention may recover the receivable by converting the movable property or negotiable instruments in his/her possession into money.
While aircraft are subject to the provisions of movable property, the right of retention on aircraft cannot be applied because airport operators cannot claim the right of retention. Creditors can obtain their receivables after an executive proceeding and converting them aircraft into money through the executive directorate.
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FOOTNOTES
1 Turgut Akıntürk / Jale G. Akipek, Eşya Hukuku, İstanbul, 2009, p. 857.
2 Bilgehan Çetiner, Hapis Hakkı, 1st Edition, İstanbul 2010, p. 31.
3 Aydın Aybay, Hüseyin Hatemi, Eşya Hukuku Dersleri, İstanbul 2009, p. 301.
4 Çetiner, Hapis Hakkı, p. 60.
5 Kemal Oğuzman / Özer Seliçi / Saibe Oktay Özdemir, Eşya Hukuku, İstanbul 2015, p. 10.
6 Oğuzman / Seliçi / Oktay-Özdemir, Eşya Hukuku, p. 807.
7 Bülent Köprülü, Selim Kaneti, Sınırlı Ayni Haklar, 2nd Edition, İstanbul 1982-1983, p. 517.
8 Cem Dinar, Hapis Hakkı, İstanbul 2016, p. 37.
9 Oğuzman / Seliçi / Oktay-Özdemir, Eşya Hukuku, p. 808.
10 Oğuzman / Seliçi / Oktay-Özdemir, Eşya Hukuku, p. 809.
11 Çetiner, Hapis Hakkı, p. 77.
12 Oğuzman / Seliçi, Oktay-Özdemir, Eşya Hukuku, p. 808.
13 Oğuzman / Seliçi, Oktay-Özdemir, Eşya Hukuku, p. 1037.
14 Köprülü / Kaneti, Sınırlı Ayni Haklar, p. 520.
15 Köprülü, Kaneti, Sınırlı Ayni Haklar, p. 520.
16 Dinar, Hapis Hakkı, p. 51.
17 Ferit Saymen / Halid Elbir, Türk Eşya Hukuku Dersler, İstanbul 1963, p. 748.
18 Sabih Arkan, Ticari İşletme Hukuku, 15th Edition, Ankara 2011, p. 158.
19 Akıntürk / Akipek, Eşya Hukuku, p. 858.
20 Erol Cansel, Türk Hususi Hukukunda Hapis Hakkı, Ankara 1961, p. 84.
21 Cansel, Türk Hususi Hukukunda Hapis Hakkı, p. 84.
22 Oğuzman / Seliçi / Oktay-Özdemir, Eşya Hukuku, p. 1039.
23 Saymen, Elbir, Türk Eşya Hukuku Dersler, p. 751.
24 Dinar, Hapis Hakkı, p. 65. 25 Dinar, Hapis Hakkı, p. 4.
26 Dinar, Hapis Hakkı, p. 69.
27 Çetiner, Hapis Hakkı, p. 110.
28 Dinar, Hapis Hakkı, p. 87.
29 Dinar, Hapis Hakkı, p. 89.
30 Cansel, Türk Hususi Hukukunda Hapis Hakkı, p. 96.
31 Cansel, Türk Hususi Hukukunda Hapis Hakkı, p. 96.
32 Oğuzman, Seliçi, Oktay-Özdemir, Eşya Hukuku, p. 1040.
33 Akıntürk, Akipek, Eşya Hukuku, p. 864.
34 Dinar, Hapis Hakkı, p. 96.
35 Dinar, Hapis Hakkı, p. 100.
36 Cansel, Türk Hususi Hukukunda Hapis Hakkı, p. 100.
37 Çetiner, Hapis Hakkı, p. 140.
38 Dinar, Hapis Hakkı, p. 102.
39 Köprülü / Kaneti, Sınırlı Ayni Haklar, p. 527.
40 Oğuzman / Seliçi / Oktay-Özdemir, Eşya Hukuku, p. 51.
