Whether Or Not The Statute Of Limitations Applies To A Letter Of Guarantee
TC. SUPREME COURT OF APPEALS.
Grand General Assembly
Case No.:1966/16
Decision No.:1967/7
Date of Decision: 13.12.1967
REQUEST FOR THE RETURN OF A LETTER OF GUARANTEE PROVIDED AS SECURITY FOR THE TRANSPORTATION CONTRACT AND NOT RETURNED DESPITE THE CONTRACT BEING PERFORMED
– NECESSITY OF NOT RAISING THE DEFENSE OF STATUTE OF LIMITATIONS
SUMMARY:
The letter of guarantee provided as security for the transportation contract and not returned despite the contract being performed
SUMMARY: In the lawsuit filed by the carrier against the shipper regarding the return of the security letter provided as security for the transportation contract and not returned despite the contract being fulfilled,
it was decided not to raise the defense of the statute of limitations.
(Turkish Commercial Code No. 6762, Article 767)
Case: In the lawsuit filed regarding the return of the security letter provided as security for the transportation contract and not returned despite the contract being fulfilled,
Case: In the lawsuit filed regarding the return of the guarantee letter provided as security for the transport contract and not returned despite the contract being fulfilled,
the carrier’s defense of the statute of limitations raised by the shipper
the statute of limitations defense raised by the shipper in the lawsuit filed regarding the return of the security letter provided as security for the transportation contract and not returned despite the contract being fulfilled,
whether the application of Article 767 of the Turkish Commercial Code and Article 889 of the old Commercial Code
is possible or not, it was stated that there is a conflict of precedent between the two rulings of the chamber,
and it was requested that the conflict be resolved through the unification of precedent.
on September 26, 1966, with reference number 66/266, the Supreme Court’s Judicial Precedent
General Assembly of the Supreme Court Case Law Harmonization Committee convened to discuss the matter:
Decision: The ruling of the Supreme Court of Appeals Commercial Chamber dated November 21, 1952, No. 6156/5132, concerns the dismissal of the case for the return of the security
due to the expiration of the time limit, and in this ruling, it is accepted by the parties that
the provision of the transportation contract had expired on July 31, 1943, and this case was filed on March 13, 1950.
Article 889 of the Commercial Code states that all legal claims arising from a transportation contract
shall be barred after one year, and the claim for the return of the security deposit
is also based on claims arising from the aforementioned transportation contract, and the claim for the refund of the amount deducted from the plaintiff on May 10, 1945, on the grounds that the transportation fee
was overpaid, is also subject to the same
provision. Therefore, the plaintiff’s unfounded appeals are dismissed, and the judgment is
affirmed. The same chamber issued a similar ruling on November 16, 1965, under case number 63/6171 E.65/95
(The case concerns the plaintiff’s claim for the return of the guarantee letter issued to the defendant as security for the transportation service the plaintiff, as a carrier, had undertaken to perform for the defendant.
The plaintiff’s claim for the return of the guarantee letter is based on the defendant’s failure to fulfill the transportation service.
The guarantee letter is considered an annex to the main contract, and the statute of limitations applicable to the main contract also applies to the guarantee letter. The acceptance of guarantee letters as details of the main contract and the application of the statute of limitations applicable to the main contract
to them is also inconsistent with the nature and purpose of guarantee letters and suretyship institutions
. In this case, the plaintiff, as the carrier, could have provided a mortgage as security or offered personal surety to the defendant. In such a case,
and if the same principle is accepted, it would lead to an impossible result, such as the application of a one-year statute of limitations period or the application of personal surety,
which is inconsistent with the purpose and objective of the guarantee institution.
It has been observed that the court ruled in favor of the plaintiff to overturn the judgment, It was observed that the decision was made to overturn the ruling in favor of the plaintiff,
and after it was decided by a majority vote that there was a contradiction in the precedent and that this contradiction should be resolved,
the case proceeded to the merits.
1) In contracts containing commitments, one of the parties often requests a valid bank guarantee from the other party regarding the fulfillment of its obligations,
and such commitment documents issued by banks are referred to as guarantee letters. Bank guarantee letters are, in a sense,
commitments regarding the actions of a third party and are always issued in writing. In this letter,
the maximum amount for which the bank will be liable is typically indicated in numerical form. Since the bank acts as the guarantor,
its commitment is separate and entirely independent from the parties who entered into the main contract and the main agreement.
The bank’s commitment takes the form of a guarantee commitment,
independent of the validity and existence of the beneficiary’s debt. With this guarantee letter, the bank undertakes to ensure that the party bound by the contract
fulfills its obligation and, if it fails to do so, to assume some or all of the risks that may arise for the party receiving the guarantee.
If a person agrees to compensate for the damage arising from the non-performance of the debt,
regardless of the objections that the principal debtor may raise, that person is in the position of a guarantor.
A person who guarantees the act of a third party,
i.e., who promises another person that this person will do something, has entered into an independent commitment, A person who guarantees the act of a third party,
i.e., a person who promises another person that the third party will do something, has entered into an independent commitment
and is obliged to pay positive and compensatory damages
if that thing is not performed. The difference between a guarantee agreement and suretyship is that the surety’s obligation is ancillary in nature, meaning it is a secondary commitment attached to the main debt.
The surety does not undertake to compensate for damages if the debt is not paid,
but rather to fulfill the obligation that the principal debtor is required to perform, i.e., to pay the debt.
the guarantee provider’s debt has an independent nature, not a secondary one. The guarantee provider is liable for compensation for damage and loss, not for the performance of the primary
obligation.
The bank issuing the letter of guarantee is the debtor of this act as it has assumed a debt, and the recipient of the guarantee is the creditor.
The third party who has made a de facto commitment to fulfill the provisions of the contract
is not a party to this guarantee contract. For this guarantee to be valid, it is sufficient to consider that this act
can be performed by a third party. If the outcome covered by the guarantee
occurs, this commitment ceases to exist.
2) In cases where there is a conflict of precedent, the carrier’s obligation to fulfill the requirements of the transportation contract
has been secured in favor of the shipper by a guarantee letter issued by the bank, the transportation contract
has been fulfilled, the acts covered by the guarantee have been realized, and the guarantee letter has not been returned despite being required to be returned,
a lawsuit has been filed regarding the return of this letter. The shipper raised the defense of prescription in the lawsuit.
The issue to be resolved is whether the defendant shipper, who failed to return the guarantee letter to the carrier,
can raise the defense of prescription based on Articles 767 of the Turkish Commercial Code and Article 889 of the repealed Commercial Code No. 865,
and whether such a statute of limitations can be applied in this matter.
The parties to the transportation contract are the shipper and the carrier; the parties to the guarantee agreement
covered by the letter of guarantee are the shipper and the bank.
The carrier, who made the actual commitment, entered into an agreement with the bank regarding the bank transaction
and paid a commission in accordance with that agreement, providing a counter-guarantee. The carrier, who has made the actual commitment, has entered into an agreement with the bank regarding the bank transaction
and has paid the commission and provided counter-guarantee in accordance with that agreement.
Upon the performance of the transportation contract, the carrier will receive this letter and return it to the bank, thereby being released from its obligations.
These circumstances indicate that the bank’s letter of guarantee is separate from the transportation contract and entirely distinct from it.
These circumstances demonstrate that the issuance of the bank guarantee letter to the shipper and the bank’s commitment to the carrier’s actions
are entirely separate from and independent of the transport contract. The act of the carrier obtaining the guarantee letter
from the bank and delivering it to the shipper does not confer the character of a transport contract on either this contract or the request for the return of the letter by the carrier.
Therefore, the claim for the return of the guarantee letter Therefore, the statutes of limitations set forth in Article 767 of the Turkish Commercial Code and Article 889 of the amended Commercial Code
cannot be applied in a lawsuit regarding the return of the guarantee certificate.
3) Upon payment of the debt, the debtor has the right to request the return or cancellation of the certificate.
Even if the guaranteed outcome has been realized, the situation remains the same. The beneficiary has the right to request the return of the certificate containing the undertaking from the bank that issued it or to request its return to the bank.
The same applies even if the guaranteed outcome has been realized. The beneficiary must
return the letter containing the commitment to the bank that issued it or to the person to whom it was actually committed for return.
The letter must be returned to the bank that issued it or to the person to whom it was actually committed for return. A lawsuit filed for failure to return this letter is not a claim for payment but a
lawsuit for the return of a document or its cancellation on the grounds that it has lost its validity. In such a
lawsuit, no distinction can be made between the return ruling and the cancellation ruling. The party holding the document, i.e.,
the beneficiary of the guarantee, may defend themselves by stating that the promised act has not been fully performed.
In a lawsuit filed against the party holding the document whose return or cancellation is sought on the grounds that its effect has ceased,
the statute of limitations objection cannot be raised as long as the plaintiff has a legal interest in requesting the return of the document.
The statute of limitations objection cannot be raised as long as the plaintiff has a legal interest in requesting the return of the document. Essentially, since the judge’s decision to return or cancel the document will replace the document
and the document has no material value, the statute of limitations does not apply.
Conclusion: In a lawsuit filed by the carrier against the shipper regarding the return of a letter of guarantee provided as security for the transport contract, which has not been returned despite the contract having been fulfilled,
the shipper cannot raise a statute of limitations defense based on Article 767 of the Turkish Commercial Code,
and the application of the aforementioned article is not possible in the face of such a defense.
and that the application of the aforementioned article is not possible in the face of such a defense.
This decision was made unanimously at the first meeting and vote on December 13, 1967.