Check Cancellation Case

Check Cancellation Case | Izmir Commercial Lawyerı

In the context of commercial life, checks, which are frequently used in place of cash, are subject to strict legal regulations, primarily the Turkish Commercial Code No. 6102, due to their status as negotiable instruments. One of the problems we frequently encounter in commercial lawsuits is the cancellation of checks. Rather than specific regulations regarding check cancellation within our legal framework, the process is defined by referring to the articles concerning the cancellation of bills of exchange.

Protected Legal Value

In check cancellation cases, the legal value sought to be protected is undoubtedly the preservation of the rights of the authorized holder arising from a check that has been lost against their will, and preventing these rights from falling into the hands of third parties.

Who can file a lawsuit?

Check cancellation lawsuit, Turkish Commercial Code According to Article 757/1, a check can be opened by "a person who has lost the policy against their will," that is, the person who was the last entitled to the check. In this case, the plaintiff must be the last person to hold the check before it was lost and must also be the entitled party to the check.

Defendant

In check cancellation cases, since the cause of action is the loss of the check, there are no specific defendants to target. Check cancellation lawsuits must be filed without a defendant.

Competent & Authorized Court

It is established that the competent court for check cancellation cases is the Commercial Court, within the scope of Article 5 of the Turkish Commercial Code, which states: "Unless otherwise stipulated, the primary commercial court is responsible for hearing all commercial cases and uncontested judicial matters of a commercial nature, regardless of the value or amount of the subject matter of the lawsuit.".

The competent court for check cancellation cases is the primary commercial court in the place of payment or the holder's place of residence, as stipulated in Article 757/1 of the Turkish Commercial Code.

Announcement Regarding Check Cancellation Cases

In a check cancellation case, in order to identify the holder of the check or, if applicable, the rightful heirs, a public notice must be published in accordance with Articles 760, 761, and 762 of the Turkish Commercial Code. The notice warns the holder that they must apply to the court within the specified period; otherwise, the check will be cancelled. While this period, according to Article 761/1 of the Turkish Commercial Code, is at least three months and at most one year, in practice, a three-month period is given, taking into account the urgency of the matter.

Supreme Court Decisions

The 11th Civil Chamber of the Court of Cassation, in its decision dated March 14, 2016, numbered 2015/8361 Case No. 2016/2795, stated: “The plaintiff’s attorney claimed that an invoice was issued to their client by the company appearing as the check payee, but the invoiced products were not sent to their client, and therefore requested and sued for the cancellation of the check. The court, based on the entire case file, ruled to dismiss the case on the grounds that the Turkish Commercial Code requires the check to be lost for cancellation, and that in this specific case, the check was not lost. The plaintiff’s attorney appealed the decision. Considering the information and documents in the case file, the lack of any procedural or legal irregularities in the discussion and evaluation of the evidence relied upon in the court’s decision, the fact that the lawsuit was filed without a defendant, and the plaintiff’s claim being the subject of a negative declaratory action requiring a defendant, all of the plaintiff’s attorney’s appeals must be rejected.”.

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