Although The Remaining Portion Of The Commitment Is Expressed In Vague Terms, The Commitment Is Valid Because All Receivables Are Shown Separately.
Summary:
Although the amount to be paid on the final installment date of March 30, 2009, is not specified in the commitment memorandum but is referred to as “the remaining portion,” a careful review of the commitment memorandum dated February 15, 2008, reveals that the debtor has accepted that the total debt amounts to TL 23,075.60, including the principal amount, collection fees, accrued interest, future interest, commission, and other expenses, thereby acknowledging that the total debt amounts to 23,075.60 TL and committing to make payments based on this amount. The accrued interest and future interest are specified separately. Furthermore, in the instruction letter dated February 1, 2008, sent by the Kastamonu 1st Enforcement Directorate to the Azdavay Enforcement Directorate regarding the complaint, the debt amount is stated as 22,869.82 TL. 2008, the debt amount is shown as 22,869.82 TL, it is imperative to accept that the debt amount in the commitment document is beyond any doubt and that the offer and acceptance were made based on this amount.
Republic of Turkey
Supreme Court
16th Civil Chamber
Case No: 2009/3906
Decision No: 2009/3858
Date: 2.6.2009
Following the trial of the debtor A for breach of the payment commitment, the Kastamonu 1st Enforcement Court ruled on 22/09/2008 with decision no. 2008/1050¬2002 that the elements of the crime were not established and acquitted the defendant. The files containing the decisions of the same Court dated 09/10/2008 and numbered 2008/841-2121, which ordered the defendant to be sentenced to up to three months of coercive imprisonment under Article 340 of the Enforcement and Bankruptcy Law No. 2004 for the same act, were reviewed.
In the enforcement proceedings initiated against the debtor defendant through the Kastamonu 1st Enforcement Directorate’s file No. 2008/104, despite the payment commitment dated 15/02/2008 issued during the seizure carried out through the Azdavay 1st Enforcement Directorate’s document No. 2008/20, the defendant failed to pay the debt on May 30, 2008, thereby breaching the commitment. As a result of the trial initiated upon the complaint filed by the plaintiff’s attorney, Recep Bacıroğlu, on June 5, 2008, the payment commitment was deemed invalid, and the defendant was acquitted on the grounds that the elements of the alleged offense were not established. Following the decision of the Kastamonu 1st Enforcement Criminal Court dated 22/09/2008, numbered 2008/1050-2002, in the same case, the same court ruled on 09/10/ 2008, numbered 2008/841-2121, it was deemed inappropriate to impose a penalty on the defendant, and it was necessary to overturn the aforementioned decision in accordance with Article 309 of the Criminal Procedure Code numbered 5271, as referenced in the request for overturning in the public interest dated 17/04/ 2009 and numbered 23864, and the Supreme Court Prosecutor’s Office’s notification dated 06.05.2009 and numbered K.Y.B.2009/113214;
THE MATTER WAS DISCUSSED:
A total of TL 18,878.87 is owed by the debtor A.uk. In order to collect this debt, the Kastamonu 1st Enforcement Directorate initiated proceedings under case number 2008/104. Following the registration of the proceedings with the Azdavay Enforcement Directorate under case number 2008/20, the debtor applied to the Azdavay Enforcement Directorate on February 15, 2008, committing to pay the debt on specific dates. Following this registration, on February 15, 2008, the debtor applied to the Azdavay Enforcement Directorate and committed to paying the debt on specific dates. After the enforcement director explained the legal and criminal liability of the commitment, the commission accepted the total debt amount as 23,075.60 TL in the minutes, which separately listed the principal debt, interest, commission, fees, agency fees, and other expenses were separately listed in the minutes, with the total debt amount accepted as 23,075.60 TL. The debtor also specified the amount to be paid each month, starting from April 10, 2008, and ending on March 30, 2009. The amount of the final installment due on March 30, 2009, is not specified, but rather referred to as the “remaining portion.” Due to the debtor’s failure to pay the installment he committed to pay on April 10, 2008, the creditor’s attorney filed a complaint with the Kastamonu 1st Enforcement Court on April 15, 2008, through a transfer dated April 15, 2008. Enforcement Court, and the court, after registering the case under case number 2008/841 and conducting the proceedings, decided on October 9, 2008, with decision number 2008/2121, to impose a penalty of up to three months’ imprisonment on the debtor in accordance with Article 340 of the Enforcement and Bankruptcy Law, The decision became final. Since the debtor also failed to pay the installment due on May 30, 2008, as stated in the same commitment document, the creditor’s attorney filed a complaint with the Kastamonu 1st Enforcement Court on June 5, 2008, under case number 2008/ 1050, resulting in the decision dated September 22, 2008, numbered 2008/2002, which acquitted the debtor on the grounds that “the amount of the final installment was not specified and left undefined as the ‘remaining portion.’” Both decisions became final without any appeal. Although the final installment amount to be paid on March 30, 2009, was not specified in the commitment document and was instead referred to as the “remaining portion,” a careful review of the commitment document dated February 15, 2008, reveals that the debtor acknowledged the total debt amount of TL 23,075.60, which includes the principal amount, collection fees, accrued interest, subsequent interest, commission, and other expenses, thereby acknowledging that the total debt amounts to 23,075.60 TL and committing to make payments based on this amount. The accrued interest and subsequent interest are specified separately. Furthermore, in the instruction letter dated February 1, 2008, sent by the Kastamonu 1st Enforcement Directorate to the Azdavay Enforcement Directorate, where the commitment in question was issued, the debt amount is shown as 22,869.82 TL. Considering that the debt amount is shown as 22,869.82 TL in the instruction letter dated February 2008, it is necessary to accept that the debt amount in the commitment document is unambiguous and that the offer and acceptance were made based on this amount. Under these circumstances, it cannot be said that the commitment document is invalid.
The acquittal decision issued by the Kastamonu 1st Enforcement Court on September 22, 2008, following a complaint regarding the debtor’s failure to make the payment on May 30, 2008, as stated in the commitment memorandum regarding the same debt, became final without any legal action being taken. Although the acquittal decision was based on the fact that “… the amount of the last installment was not specified and was left undefined as ‘the remaining portion’,” as stated in the explanations above, this reasoning cannot be accepted. Moreover, the acquittal decision was not subject to a request for annulment in the interest of the law. In accordance with the rule of adherence to the notification, the decision of the Kastamonu 1st Enforcement Court dated October 9, 2008, and numbered 2008/841-2121, which was reviewed by our Chamber and resulted in the debtor being sentenced to up to three months of coercive imprisonment, was subject to review. It is not possible to accept that the previous acquittal ruling, which became final without going through the Supreme Court, is binding in this case.
For the reasons explained above, it was decided by unanimous vote on June 2, 2009, to REJECT the Supreme Court Prosecutor’s Office’s request for reversal in the interest of the law, to refer the case back to the court, and to remit it to the Supreme Court Prosecutor’s Office.