The Practical Application of the “Principle of Abstraction” and the “Ordinary Course of Life”
We observe that the “principle of abstraction” and the criterion of “contrary to the ordinary course of life” regarding negotiable instruments have largely prevented the filing of “actions for negative declaration concerning negotiable instruments,” and that the 19th and 11th Chambers of the Supreme Court have been reluctant to apply the “interrogation” provisions (CCP Article 109 et seq.).
T he Supreme Court (19th and 11th Civil Chambers) has ruled on this matter as follows:
–“…the request for cross-examination regarding whether the defendant acquired the aforementioned items in exchange for property or for another purpose is groundless…” (19th Civil Chamber, November 20, 2019, No. 285/5221)
–“…the defendant’s defense based solely on ownership retains its validity; the claim of gratuitousness, which constitutes a criminal act, cannot be proven through an oath or cross-examination…” (11th Civil Chamber, June 21, 2021, No. 6291/5241)
Based on this reasoning, we see that the court has approved the non-application of interrogation provisions in such cases.
A- In a dispute currently ongoing in Istanbul;
“A person who states that his monthly income is 5,000.00 TL, that he is a tradesman, that he is being tried in various criminal courts on charges of ‘issuing forged checks/bills of exchange’ and ‘forgery of official documents,’ and that numerous enforcement proceedings are being conducted against him as a ‘debtor’ in enforcement offices, relying on various bills of exchange marked as ‘cash,’ has filed a debt claim against a very wealthy company in the amount of 2,200,000.00 USD + 1,250,000.00 USD + 3,750,000.00 TL + 3,150,000.00 TL (equivalent to approximately 68.8 million TL today) against a very wealthy company and that in the cases filed against him that resulted in adverse outcomes, the courts have been unable to reach a decision regarding the “examination of the parties” for the past 2-3 years!”
NOTE:
1) In one of these cases, the plaintiff-debtor submitted a (private) report obtained from a graphologist as an attachment to the complaint filed with the court, and this report stated that “the signature on the promissory note does not belong to the representative”; while the defendant-creditor, in addition to their response, submitted a report from another graphologist stating that “the signature on the promissory note belongs to the debtor”…
The court referred the case file to the Institute of Forensic Medicine; the Institute’s initial report stated that “the signature on the promissory note does not belong to the debtor.” Following the defendant-creditor’s objection to this report, the Institute of Forensic Medicine’s second report stated that “the signature on the promissory note belongs to the debtor.”
Following the court’s decision to resubmit the case file to the Institute of Forensic Medicine and request a new report from the five-member Expert Panel, the five-member Expert Panel unanimously issued a report stating that “the signature on the promissory note belongs to the debtor”!
2) In an anonymous and unsigned petition submitted to the court file, it was alleged that “the defendant-creditor forged the debtor’s signature on the promissory note in question using a device similar to a photocopier brought from abroad.”