A cheque is a means of payment used in commercial life. The right to collect the cheque therefore arises when it is drawn. In this context, certain problems are experienced with the collection of cheques. In this article we deal with that subject.
What Is a Cheque?
A cheque is a means of payment written so that a certain sum of money is paid from a bank account, on a certain date, to a certain person. In this sense a cheque is a negotiable instrument. Negotiable instruments are documents that produce a particular legal result and, because of that result, give the parties particular rights and obligations. Underlying the cheque, moreover, is a relationship of transfer of funds. Here a triangular relationship is involved: the drawer, the payee and the drawee bank.
What Are the Elements of a Cheque?
There are mandatory elements that must be present for an instrument to be accepted in law as a cheque (art. 780/1 of the Turkish Commercial Code). They are, in order, as follows:
- The word “cheque”
- An unconditional order to pay a certain sum
- The drawee
- The date of issue
- The place of issue
- The signature of the person issuing it
How Is a Cheque Collected?
A cheque may be collected in one of the following ways:
How Is a Cheque Collected Through Banking Transactions?
A cheque is payable on sight. Any entry to the contrary is deemed not to have been written. A cheque presented for payment before the day shown as the day of issue is paid on the day of presentation. A cheque that is to be paid in the place where it was issued must be presented to the drawee within 10 days; if it is to be paid in a place other than the place where it was issued, within 1 month. A cheque issued in a country other than the country in which it is to be paid must be presented to the drawee within 1 month if the place of issue and the place of payment are on the same continent, and within 3 months if they are on different continents.
How Is a Cheque Collected Through Enforcement Proceedings?
If a valid cheque is dishonoured at the bank for want of funds, enforcement proceedings specific to negotiable instruments may be brought. In addition, the route of a criminal complaint is taken in respect of the dishonoured cheque. A criminal sanction is thus applied to the debtor.
Where a cheque is presented within the statutory period of presentation according to the date of issue written on it, a judicial fine of up to one thousand five hundred days is imposed, upon the complaint of the holder, in respect of each cheque, on the person who caused the “no funds” entry to be made. The offence of causing a “no funds” entry to be made is subject to complaint. The right of complaint is a right strictly personal and non-transferable. For this reason it is granted only to the authorised holder who presented the cheque to the bank. The period for complaint is three months from the date on which the cheque was presented to the bank by the authorised holder. This period is important because it is a period of forfeiture.
Enforcement proceedings for a cheque are brought before the competent enforcement office. The competent enforcement offices are those:
- in the place where the cheque was drawn, at the choice of the creditor,
- in the place where the branch of the drawee bank is situated,
- in the place of the residence or the trade registry address of the debtor or of any one of the debtors,
A debtor served with a payment order containing all these demands may object to the Enforcement Courts within 5 days. On the other hand, in proceedings brought by this route, objections made to the Enforcement Offices are invalid. Furthermore, a debtor who does not object to the enforcement proceedings must make payment or file a declaration of assets within 10 days. A debtor who neither objects nor makes payment within the 10-day period may have the enforcement proceedings continued against them. In such cases the debtor may face measures such as attachment and seizure of assets.
What Should Be Watched for When Collecting a Cheque?
Some points to watch when collecting a cheque are as follows:
- Check whether the cheque is valid.
- Check the period for presenting the cheque.
- If there are funds for the cheque, present it to the bank.
- If there are no funds for the cheque, seek collection through enforcement proceedings.
The cheque is a means of payment very widely used in business and commercial life. Where collection has to be made through enforcement proceedings, it involves a delicate legal process. In order not to suffer a loss of rights, the legal support of a lawyer who is a specialist in commercial and enforcement law and experienced in the law of cheques should be obtained. You may contact our office to request our services.
