Turkish Law Blog

A Frequently Used Solution in the Turkish Check Law Practice: “Post-dated Check”

Müge Önal Başer Müge Önal Başer/ Müge Önal Legal Consultancy
24 June, 2020
313

The economic difficulties brought by the COVID-19 pandemic, which has influenced the whole world since the beginning of 2020, keep check payments and associated issues on the agenda. The post-dated check is among these issues.

What is a Post-dated Check?

A check is a means of payment, is payable at sight, and does not have a maturity date (Article 795(1) of the Turkish Commercial Code (the “TCC”)). Entries on a check stating a maturity date are considered not written (Article 795(1) of the TCC). There are, on the other hand, periods of presentment for check payments, which are determined according to the date and place of drawing and the place of payment written on the check (Article 796 of the TCC). Periods of presentment are important to determine the deadline to present a check to a bank. These periods are as follows:

Place of Drawing

Place of Payment

Period of Presentment**

 

E.g., Ankara

Same as the place of drawing

E.g., Ankara

10 days from the date of drawing



E.g., Ankara

Somewhere other than the place of drawing

E.g., İstanbul

1 month from the date of drawing



E.g., Geneva

A country other than the place of drawing / on the same continent*

E.g., İstanbul

1 month from the date of drawing



E.g., New York, NY

A country other than the place of drawing / on different continents*

E.g., Ankara

3 months from the date of drawing

* “… checks that are drawn in a European country and payable in a country with a Mediterranean coast, and similarly that are drawn in a country with a Mediterranean coast and payable in a European country shall be considered to be drawn on the same continent and required to be paid on the same continent” (Article 796(2) of the TCC).

** “… periods shall begin on the day following the date of drawing written on the check” (Article 796(3) of the TCC).

In practice, checks called “maturity dated checks” are drawn. The particularity of such a check is that the date of drawing is specified on the check as a later date than the actual date of drawing. Specifying such a later date as the date of drawing also extends the check payment date until a later date, as the period of presentment for a check payment is calculated according to the date of drawing. As suggested in the doctrine, it is more accurate to call these checks as “post-dated checks”.

For example, a check with the date of drawing of 01 June 2020, and the place of drawing and the place of payment as Ankara, should be presented to the bank for payment on 01 June 2020 at the earliest and 11 June 2020 at the latest. However, this date range may not be suitable for the drawer to make a payment. The drawer may, as well, be expecting payment from another person, or the drawer may not have in her account as much deposit as the amount of the check she plans to draw. In such cases, when the drawer draws a check with the date of drawing of e.g., 01 September 2020 instead of 01 June 2020, and the place of drawing and the place of payment as Ankara, this check should be presented to the bank for payment on 01 September 2020 at the earliest and 11 September 2020 at the latest. This method will save time for the drawer through extending the period of presentment for the check payment by three months.

Is it Legal to draw a Post-dated Check?

Drawing post-dated checks is a common practice and is frequently used as a loan mechanism. Reviewing the legislation on checks, it could be noticed that the legislator is aware of this practice and allows it. Examples are as follows:

  • “A check that is presented to be paid before the day shown as the date of drawing shall be paid on the day of presentation” (Article 795(2) of the TCC).
  • “If the provision of the check which is presented before the date of drawing written on the check is not paid in full or in part pursuant to Article 707 of the Turkish Commercial Code, no legal proceedings regarding this check can be conducted. To conduct legal proceedings regarding the post drawing dated check, the check must be presented to the bank within the legal period of presentment to be [calculated] according to the date of drawing written on the check, and it must be processed as a returned check” (Article 3(8) of the Law on Checks).
  • “Presentment of a check for payment to the addressee bank, before the date of drawing written on the check shall not be [a] valid [transaction] until 31/12/2020” (Provisional Article 3(5) of the Law on Checks).

These provisions acknowledge that the date of drawing may be a later date than the actual date of drawing, but the approach of the TCC and the Law on Checks towards this practice is different.

The TCC has brought a “kind of sanction” for drawing a check at a later date than the actual date, through stipulating that the post-dated check shall be paid on the date of presentment, if it is presented before the date of drawing written on the check.

The Law on Checks, however, supports the post-dated check practice and makes the TCC’s sanction ineffective. It prevents the presentment of a post-dated check to the addressee bank before the date of drawing written on the check, until 31 December 2020. It also prevents conducting legal proceedings, if a check is presented before the date of drawing written on the check and the provision is not paid.

The Supreme Court also acknowledges that a check can be drawn post-dated.

Can an Electronic Check be drawn as a Post-dated Check?

The electronic check was one of the most important issues that was on the agenda last year, as it was included in the medium term economy program, a draft law on electronic checks and promissory notes was prepared, and the Ministry of Commerce announced that the draft law would be implemented shortly.

As a result of the COVID-19 pandemic, while the hygienic aspect of the use of paper money has become more questionable and electronic payment systems, digital coins, cryptocurrencies etc. increased their popularity, electronic check has fallen off the agenda. Among the reasons for this is the great impact of medical issues, but the economic importance of paper check and established practices must have also contributed…

If the electronic check issue comes into question again, whether the post-dated check practice will be allowed, will both be a legal preference and a preference that considers the importance of checks in the commercial life.

The electronic check is expected to be in the form of an “electronic version” of the paper check, so there should be no amendments to the legal principles, except the use of the secure electronic signature, and there should be no change in the banks’ intermediary duties.

In this context, if the preference regarding the date of drawing will be to show the actual date of drawing of the electronic check, using a time stamp while drawing the electronic check could be envisaged. On the other hand, if the preference regarding the date of drawing will be to allow drawing post-dated checks, a structure letting the drawer entering the date of drawing into the system manually while drawing the electronic check, could be considered. In both cases, since the transactions will be carried out online, the concepts of the “place of drawing” and the “place of payment” should not matter and there should be a sole period of presentment that could be calculated from the electronic check’s actual or post-dated date of drawing.

Obviously, these are only possibilities for now. There are no legal obstacles to the post-dated check practice until any amendments are made to the legislation on checks…


References

  1. Turkish Commercial Code No. 6102 published in the Official Gazette dated 14 February 2011 and numbered 27846.
  2. Law on Checks No. 5941 published in the Official Gazette dated 20 December 2009 and numbered 27438.
  3. Relevant Supreme Court judgments: 12th Civil Chamber, 12 March 2013, E. 2012/30749 K. 2013/8931; 12th Civil Chamber, 21 March 2013, E. 2013/1127 K. 2013/10669; 12th Civil Chamber, 19 March 2014, E. 2014/5161 K. 2014/7836; General Assembly of Civil Chambers, 16 April 2014, E. 2013/1285 K. 2014/531; 12th Civil Chamber, 16 June 2014, E. 2014/16321 K. 2014/17475; 12th Civil Chamber, 17 February 2015, E. 2015/46 K. 2015/3093; 19th Civil Chamber, 01 July 2015, E. 2014/20591 K. 2015/9738; 12th Civil Chamber, 07 December 2015, E. 2015/20944 K. 2015/30721, https://www.lexpera.com.tr/ (Accessed 18 June 2020); General Assembly of Civil Chambers, 02 April 2019, E. 2018/26 K. 2019/396, https://www.yargitay.gov.tr/ (Accessed 18 June 2020).
  4. Öztan, Fırat: Kıymetli Evrak Hukuku, Ankara 2017.
  5. Bozer, Ali/Göle, Celal: Kıymetli Evrak Hukuku, Ankara 2018.
  6. Tekinalp, Ünal: “İleri Keşide Tarihli (Vadeli) Çeklere İlişkin Bir Öneri”, Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni 1999, V. 19, I. 1-2, p. 923-932.
  7. Çöl, Hüseyin Cem: “İleri Tarihli Çeke İlişkin Sorunlar”, Ankara Üniversitesi Hukuk Fakültesi Dergisi 2004, V. 53, I. 1, p. 195-220.
  8. Yıldırım, Ali Haydar: “Türk Hukuku’nda Vadeli Çek (İleri Tarihli Çek) ve Bunun Doğurduğu Sonuçlara İlişkin Bazı Tespitler”, Gazi Üniversitesi Hukuk Fakültesi Dergisi 2017, V. 21, I. 4, p. 91-130.
  9. Presidential Decree on the Approval of the Medium-Term Program (2020-2022) No. 1618, published in the Official Gazette dated 04 October 2019 and numbered 30908, 1st Repeated Issue.
  10. Bakan Pekcan: Karekodlu bono, elektronik çek ve bono uygulamasını başlatıyoruz, 17 Mayıs 2019, https://www.ticaret.gov.tr/haberler/bakan-pekcan-karekodlu-bono-elektronik-cek-ve-bono-uygulamasini-baslatiyoruz (Accessed 18 June 2020).
  11. Karabıyık, Ayşegül: “Alternatif Ödeme Aracı Olarak: Elektronik Çek Sistemi (E-Çek) - 1”, Muhasebe ve Finansman Dergisi 2008, V. 38, p. 80-94.
  12. Karabıyık, Ayşegül: “Alternatif Ödeme Aracı Olarak: Elektronik Çek Sistemi (E-Çek) - 2”, Muhasebe ve Finansman Dergisi 2008, V. 39, p. 155-166.
  13. Sertkaya, İsa/Kalkar, Öznur: “An Efficient Electronic Checkbook Scheme with Mutual Authentication”, Süleyman Demirel Üniversitesi Fen Bilimleri Enstitüsü Dergisi 2019, V. 23, I. 2, p. 590-596.

 

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