Evaluation of the Default on Promissory Note on which the Statute of Limitation has ended under the Perspective of the General Assembly of Civil Chambers’ Decision

Abstract

Novation is regulated under articles 133 of the Turkish Code of Obligations. Nonetheless, as a rule, if a promissory note is issued for a debt arising from the basic debt relationship, the basic debt relationship is not considered to be renewed. In this case the basic debt relationship does not terminat and the creditor has competing requests. Therefore, if the credit arising from the promissory note cannot be obtained for any reason, the creditor may demand his/her credit based on the underlying basic debt relationship. The General Assembly of Civil Chambers on the Unification of Judgements of the Court of Cassation has a decision dated 25.12.2019, numbered E. 2019/1, K. 2019/8. At that dijudication, the maturity date in a time promissory note can not be considered in the context of the default in actions or execution proceedings based on the underlying basic debt relationship. The legal arguments established in this decision are considerably controversial. For example, the connection between the relationship arising from the issuance of the promissory note and the basic debt relationship is not considered enough in the decision. Besides the concept of procedural request was ignored in the decision. Procedural request is the demand which is directed to the court, which is a definite determination of a legal conclusion, that is the provision of a certain legal protection. Where the debt is due, the obligor falls in default by the notification of the obligee. But the concepts of maturity and default are used incorrectly. Because it is unclear whether the promissory note has been presented for payment, judgment is not adequately clear and needs clarification. In this study, various evaluations were made by approaching the legal issue in the decision from the points of view of civil procedure law, civil law and commercial law. In addition, various evaluations were made regarding the institutions and concepts discussed in the decision.