Legal Nature
A guarantee note is a written document drafted to provide security to a creditor in a debt relationship, ensuring the fulfillment of the obligation. It is a promise made by the signatory to complete a contract, such as delivering goods or services, and should a failure occur, the signatory is obliged to pay a certain amount.
In Turkish law, guarantee notes are generally drafted as simple instruments and, unlike promissory notes and bills of exchange, they are not subject to strict formal requirements. The Turkish Commercial Code clearly stipulates that negotiable instruments must include an unconditional acknowledgment of debt. In guarantee notes, however, the obligation arises only if the agreed-upon commitment is not fulfilled. These notes ensure the creditor's rights, providing legal recourse in the event the debtor fails to meet their obligations. Unlike bills of exchange (promissory notes, bills, checks), a guarantee note cannot be followed up through the specific enforcement procedure reserved for commercial instruments. Instead, general enforcement procedures (non-judicial enforcement) may be applied.
Teminat senedi bir kambiyo senedi (poliçe, bono, çek) olmadığından, teminat senediyle kambiyo senetlerine mahsus takip yoluna başvurulamaz. Bunun yerine genel haciz yoluyla (ilamsız takip) yasal takip yapılabilir.
- Characteristics:
- Typically includes records for security purposes. teminat amacı taşıyan kayıtlar içerir.
- Can be conditioned upon certain requirements.
- Cannot be transferred independently of the debt relationship. olarak devredilemez.
Differences from Bills of Exchange
Guarantee notes must not be confused with bills of exchange (promissory notes, bills, checks). Key differences are as follows:
| Feature | Guarantee Note | Bills of Exchange |
| Legal Nature | Created for security purposes; serves a guarantee function. | Represents a debt and credit relationship. |
| Transferability | Cannot be transferred independently of the debt relationship. | Easily transferable and imposes responsibility on the endorser. |
| Formal Requirements | Not subject to statutory formal requirements. | Subject to strict formal requirements under the Turkish Commercial Code. |
| Enforcement | Cannot be subject to direct enforcement proceedings; creditor must prove debt. | Direct enforcement available under specific procedures for bills of exchange. |
Case Law on Guarantee Notes
The Turkish Court of Cassation has issued numerous rulings on the legal nature and application of guarantee notes. Key decisions include:
Case 1: Importance of Guarantee Purpose
- Court of Cassation, 12th Civil Chamber, E. 2020/1234, K. 2021/5678:
The court emphasized that a note marked with "issued for guarantee purposes" may only be used as collateral and cannot be subjected to direct enforcement proceedings.
Case 2: Proof of Debt in Guarantee Notes
- Court of Cassation, 19th Civil Chamber, E. 2019/4567, K. 2020/7890:
The court stated that a creditor claiming a debt based on a guarantee note must provide concrete evidence that the obligation has not been fulfilled.
Case 3: Guarantee Notes Are Not Bills of Exchange
- Court of Cassation, General Assembly, E. 2018/987, K. 2019/234:
The General Assembly concluded that guarantee notes are not classified as bills of exchange and should be treated as simple instruments when they include a security provision.
Conclusion
Guarantee notes are a significant legal tool for enhancing legal security. However, their drafting and usage involve important details that must be observed carefully. The precedents set by the Court of Cassation serve as essential guidance to prevent misuse and ensure the proper application of these instruments in practice.