The Concepts Of The “Principle Of Abstraction” And The “Ordinary Course Of Life” In Practice
We observe that the “principle of abstractness” and the “contrary to the ordinary course of life” criterion in negotiable instruments have largely prevented the filing of “actions for negative declaration regarding negotiable instruments,” and in particular, that the 19th and 11th Civil Chambers of the Supreme Court have been reluctant to apply the provisions on “interrogation” (HMK Art. 109 et seq.).
The Supreme Court (19th and 11th Civil Chambers) has ruled on this matter as follows:
–“…the request for interrogation regarding the defendant’s reason for acquiring the instruments in question—whether in exchange for goods or for any other purpose—is unfounded…” (19th Civil Chamber, November 20, 2019, No. 285/5221)
–“…the defendant’s defense of mere possession remains valid; the claim of lack of consideration, being an act constituting a crime, cannot be proven through 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 pending in Istanbul;
“A person stating that his monthly income is 5,000.00 TL, that he is a tradesman, that he is being tried in various criminal courts for the crimes of ‘issuing forged checks/bills of exchange’ and ‘forgery of official documents,’ and that there are numerous enforcement proceedings against him in enforcement offices as a ‘debtor,’’ has filed claims against a very wealthy company—based on various promissory notes marked ‘cash’—totaling 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 today)—and that in the negative determination lawsuits filed against him, the courts have been unable to decide on “the parties’ interrogation” for the past 2–3 years!
NOTE: 1) In this case, in one of the lawsuits filed, the plaintiff-debtor submitted a (private) report obtained from a graphologist stating that “the signature on the promissory note does not belong to his representative” as an attachment to the complaint to the court, while the defendant-creditor submitted a report from another graphologist stating that “the signature on the promissory note in question belongs to the debtor” as an attachment to the answer…
The court referred the case file to the Forensic Medicine Institute; the initial report issued by the Institute stated that “the signature on the promissory note does not belong to the debtor.” Following the defendant-creditor’s objection to this report, the second report issued by the Forensic Medicine Institute stated that “the signature on the promissory note belongs to the debtor.”
Upon the court’s decision to resubmit the case file to the Forensic Medicine Institute—requesting a new report from a 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, unsigned petition submitted to the court file, it was alleged that “the defendant-creditor created the debtor’s signature on the promissory note in question using a machine similar to a photocopier brought from abroad.”