Zehra ORUÇ GÜLTAŞ
The grievances experienced in the business world due to checks lost in cargo are increasing day by day. While the checks whose ‘lost’ minutes are kept through the cooperation established in the triangle of cargo employee-front company-legal ways, are collected through legal means by the seizure of the check, the main creditors remain in the middle. Due to the recent cases, the lawyers who made a statement to the WORLD on the subject emphasized that the Turkish Commercial Code protects the malicious people, in other words, the thieves, while protecting the well-intentioned people regarding the checks and foreign exchange documents. . Lawyers; Underlining that cargo companies do not accept checks and are not held responsible for losses, he warns business people that ‘the probability of not receiving your receivables is very high’.
If it is presented to the bank before its due date, it can go up to foreclosure.
Explaining that large and small-scale businesses operating throughout Turkey send their checks to their customers outside the city via courier, Attorney Hüseyin Acarbay said, “A client from Bursa gives the check to a customer in Istanbul with a cargo company. A few days later, he learns that his cargo has been lost and applies to us. In this case, legal legislation; It foresees the case of cancellation of the check, when the check is lost with the consent of the person or the company. We are filing an action for cancellation of the check with the court and the court makes the necessary announcements until the day of the check and decides to cancel the check.” “However, the color of the business changes as soon as this check is presented to the bank until its maturity,” said Acarbey and continued as follows; “Because the person who found the check, even if a criminal complaint is filed with the Public Prosecutor’s Office, even if a case for cancellation of the check is filed with the Commercial Court, even if the court imposes a ban on payment to the check, the person who presents the check to the bank, that is, the person who finds it, puts this check into submission. , without waiting for the legal period, obtaining a Precautionary Seizure Decision from the Commercial Court and has the right to go to foreclosure directly against all debtors whose name is on the check, without sending a notification to anyone.”
“The law also protects thieves”
Acarbay said, “The text of the law actually protects ‘good intentions’, but unfortunately, it also protects those with ‘malicious intentions’ with the deficit here,” said Acarbay, adding that in this case, thieves are protected. Acarbay, who claimed that this system is organized in the triangle of Cargo employee-front company-legal ways, with the expression ‘gang’, also gave information about the procedure applied by the people who stole the check, and continued his words as follows: “Business people send the check by cargo. A person working in the cargo company detects these checks with a device or by hand. After keeping the ‘disappearance report’, he receives the check and sends it to the relevant company, law firm or collaborator. They also endorse to front companies, and then this business goes back to execution. Because the main debtor who draws the check makes the payment immediately, considering his commercial reputation, when it comes to the collection of money with the pressure of the lien on him. Therefore, the creditor or business cannot get the money back, even if they win the case as the loser of the check because the company to which the money is paid is inactive.”
Checks are now used as payment instruments
Stating that checks have ceased to be used today and have started to be used as a means of maturity, Attorney Altan Aydın stated that this situation causes losses for businesses in case of possible loss of checks, since the drawing dates are later. Aydın said, “When the check is lost, the person who has the last right on the check can file a lawsuit for the cancellation of the check, and a letter is sent by the court to the bank where the check is registered against the appropriate collateral, stating that the relevant check has been precautionary. The measure taken by the court does not constitute an obstacle to the presentation of the relevant check to the bank when the drawing date comes. Only a written annotation is written on the back of the check that it could not be paid due to the relevant measure by the party bank. In fact, if the check is in the hands of the rightful creditors or it is really lost, it is not a problem, but if it is in the hands of malicious people, it creates a problem. Namely; “Writing a bank injunction on the back of the check does not prevent the person holding the check from taking a precautionary lien.”
Sending in violation of the relevant legislation creates grievances
Kolcuoğlu Demirkan Koçaklı’s managing partner and WORLD writer Dr. Hunting. Umut Kolcuoglu; “The transportation legislation, which foresees the risks that may arise from the transportation of valuable documents, including checks, by cargo companies, already eliminates these risks. According to the legislation, cargo companies can only accept checks on the condition that they are sent with their values declared and insured. In this case, insurance companies undertake the risk arising from the loss of checks. In practice, cargo companies stipulate in their template contracts that they will not carry valuable documents, including checks, and that they will not be responsible for their loss. Cargo companies accept to carry checks only if the special conditions required by the legislation are met, in other words, their value is declared and they are sent as insured.”
“Failure to comply with the legislation invites abuses”
“Despite this, we understand that the merchants do not provide information about the content of their shipments and have their checks shipped to the cargo companies,” said Kolcuoğlu and continued as follows; “This is in violation of their contract with the cargo companies. In case of loss of checks, cargo companies are not legally and contractually responsible for this. In other words, victimization is caused by the failure of traders to act in accordance with their contractual obligations. In practice, checks are issued with a future date, not just today. If the checks are lost while being transported by the shipping company, it is necessary to request the cancellation of these checks and the prohibition of the bank from paying these checks. In this case, the fact that the checks are issued with a future date creates a favorable situation because the malicious person who seizes the checks cannot present these checks to the bank before this date, as required by law, and has to wait for that date to come. In the meantime, it is possible to take a decision from the court that prohibits the bank from paying the checks. However, this unfortunately does not eliminate all risks. Malicious people who seize the checks can request a precautionary lien, even if there is a decision to prevent payment based on the unpaid checks, and this can cause victimization. Evaluating all these together, it is understood that there is a grievance here not arising from the transportation legislation, but from non-compliance with this legislation.”