The questions below offer a general framework on mediation and the competent court in commercial lawsuits, commercial books, security, checks, and the assignment of receivables. In a specific case, the time limits, documents, and the regulations in force are assessed separately.
Showing 1–10 of 10 questions
In which claims is mediation as a condition precedent to litigation important in commercial lawsuits?
Before a lawsuit is filed, mediation may be mandatory for certain commercial monetary claims and for other claims specified in the law.
Article 5/A of the Turkish Commercial Code and the regulations on mediation determine the scope of the condition precedent in commercial lawsuits. The mere fact that a lawsuit is filed before a commercial court does not make mediation mandatory for all claims. Claims such as receivables, damages, annulment of an objection, negative declaratory relief, or recovery of payment are examined in light of their own legal nature. The final mediation minutes and the dispute covered by the application should be checked in the case file.
How are current account and commercial book entries used as evidence?
Properly kept commercial books can serve as evidence under certain conditions; a current account entry alone does not prove every receivable.
Invoices, contracts, orders, deliveries, bank transactions, and mutual reconciliation records are compared with the commercial books. Keeping the books in accordance with the law, the opening and closing certifications, and the conditions for electronic books are important. Not every entry in a current account statement prepared by one party can be treated as a conclusive acknowledgment of debt by the other party. The special provisions of the Code of Civil Procedure on the evidentiary value of commercial books and the expert examination should be taken into account.
How is the competent court determined in a commercial dispute?
The commercial nature of the dispute, the capacity of the parties, and the jurisdiction provisions in special laws are examined together.
The jurisdiction of the commercial court of first instance is determined by taking into account the distinction between absolute and relative commercial cases and special regulations. The mere fact that one party is a company does not turn every lawsuit into a commercial case. The existence of civil courts of first instance, consumer courts, labor courts, intellectual and industrial property courts, or other specialized courts may also affect the assessment. Subject-matter jurisdiction is a condition for filing a lawsuit; the basis of the claim, the capacities of the parties, and the subject of the dispute must be examined together.
Does an e-invoice record alone prove that the goods were delivered?
No; an invoice and actual delivery or performance of a service are different matters.
The delivery note, delivery record, order correspondence, commercial books, and payment records are assessed together. The consequences of not objecting to an invoice should not be confused with proving a delivery that never took place.
When is precautionary attachment requested in a commercial lawsuit?
If the conditions for precautionary attachment under the Enforcement and Bankruptcy Law are met, an application can be made to secure the receivable.
The conditions should be examined separately: a monetary receivable not secured by a pledge, maturity, prima facie proof, and security. A precautionary attachment order does not mean definite collection; there are time limits for follow-up steps afterward.
Is a foreign court jurisdiction clause in a commercial dispute applied in every case?
No; a valid jurisdiction agreement and exclusive jurisdiction or mandatory rules are assessed.
The provisions of the Law on Private International and Procedural Law (MÖHUK) and the Code of Civil Procedure, the parties’ status as merchants, and the nature of the dispute should be examined. An arbitration clause, a choice of governing law, and court jurisdiction are three separate issues.
Is a letter of guarantee the same thing as suretyship?
No; a bank letter of guarantee and suretyship are subject to different legal relationships and conditions.
The independent nature of the guarantee, the beneficiary, the addressee, the maturity, the payment condition, and the available objections are determined according to the text of the contract. For suretyship, the special form requirements and the spousal consent rules of the Turkish Code of Obligations are also important.
What steps can be taken if a check is dishonored for lack of funds?
The presentment period, the nature of the check, and the legal enforcement routes should be assessed.
The check leaf, the bank’s presentment endorsement, the chain of endorsements, the status of the legitimate holder, and any applicable special-law provisions are examined together. Collection of the commercial receivable and a possible criminal process should not be confused with each other.
Why is notice of defects critical when goods are delivered between merchants?
Under Article 23 of the Turkish Commercial Code, special inspection and notification rules may apply to merchants.
The identification of an apparent or hidden defect, the delivery date of the goods, and the means by which notice was given should be documented in detail. The notification obligation and the consequences of the seller’s gross negligence or fraud are assessed separately.
Is the debtor’s approval required for the assignment of a commercial receivable?
Unless there is a statutory or contractual obstacle, the transfer of a receivable does not, as a rule, depend on the debtor’s consent.
Under Article 183 and the following articles of the Turkish Code of Obligations, the written form, the identifiability of the assigned receivable, the debtor’s defenses, and the consequences of notifying the debtor are examined. Assignment of a receivable and transfer of the contract as a whole are different transactions.