Commercial Law

The first step in collection is to establish the debt and its due date clearly through documents. The invoice, order form, delivery note, current account statement and correspondence are assessed together.

A default notice is then sent. The date the notice is received matters for the start of interest and for the ability to exercise the right to rescind the contract.

If payment is not made, enforcement proceedings or litigation are chosen. Where documentary evidence exists, the choice of enforcement route directly affects the length of the process.

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A formal notice is used to place the debtor in default and to put a breach of contract on record. It may be sent through a notary, registered mail, telegram or registered electronic mail.

The notice must clearly state the basis of the claim, its amount, the payment period, and the legal remedies to be pursued at the end of that period. An unclear notice later gives rise to a dispute over its validity.

The date of the notice affects the start of interest. In addition, in most contracts the exercise of the right to rescind or terminate is made conditional on granting a further period.

Enforcement proceedings based on negotiable instruments produce a faster result where the instrument meets the formal requirements. For this reason, the mandatory elements on the instrument must be complete.

If the check bounces, presentation to the bank and the record of dishonor are important. That record forms the basis for enforcement proceedings and, where applicable, for pursuing criminal remedies.

The debtor's objection to the signature or to the debt may halt the enforcement proceedings. In that case, an application must be made to the court to have the objection set aside or annulled.

Provisional attachment may be requested for monetary claims that have fallen due and are not secured by a pledge. The existence of the claim must be shown with reasonable probability.

As a rule, the court decides against the provision of security. For claims based on a negotiable instrument, the court's discretion regarding security may differ.

For the decision to be enforced, an application must be made to the enforcement office within the time limit, followed by the initiation of the main enforcement proceedings or action. Missing the time limits renders the measure ineffective.

A negative declaratory action is filed where enforcement proceedings have been initiated despite there being no debt, or where a declaration that no debt exists is sought. The action may also be filed before enforcement proceedings begin.

In an action filed after enforcement proceedings have begun, an injunction to suspend enforcement must be requested from the court. If no injunction is granted, the enforcement proceedings continue.

After payment has been made, a recovery action becomes relevant instead. Which action is to be filed is determined by whether or not payment has been made.

When the subject matter and scope, the place of delivery or performance, the time periods, the price and payment terms, and the sanction to apply in case of delay are written clearly, most sources of dispute are closed off.

The contractual penalty, the default interest rate, force majeure and the termination procedure should be separately regulated. The amount of the contractual penalty should be set at a reasonable level appropriate to the nature of the debt.

The competent-court or arbitration clause and the governing-law clause determine from the outset where and how the dispute will be resolved. These clauses have a direct effect on time and cost.

When the agreement ends, if the manufacturer or supplier continues to benefit from the customer base that the agent brought in, the agent is granted a claim for equalisation. This claim rests on the principle of equity.

For the claim to arise, the agreement must not have ended due to the agent's fault. The calculation is based on the average commission of the last years.

Applying this rule by analogy to similar continuous relationships such as distributorship is also debated. For this reason, it is advisable to set out the consequences of termination in the contract itself.

In a commercial sale, the buyer is obliged to inspect the goods after taking delivery and to notify the seller of any defect within an appropriate period. The period is short for apparent defects.

For hidden defects, notice is given after the defect comes to light. Giving the notice in writing and stating the date allows the time limit to be proven.

If no notice is given, the goods are deemed accepted and the right to claim is weakened. For this reason, establishing an incoming-goods inspection and record-keeping system is important.

In a current account relationship, the receivable arises from the closing balance of the period. For this reason, the date the account is closed and the reconciliation correspondence lie at the center of the file.

The other party's failure to object to the statement increases its evidentiary strength when assessed together with the entries in the commercial books. By contrast, a one-sided record does not constitute conclusive evidence.

If the dispute concerns the amount, an account breakdown is prepared through an examination by a court-appointed expert. Comparing the parties' books is the stage that determines the outcome.

A non-compete undertaking is deemed invalid unless it is limited in terms of place, duration and subject matter. The limitation must not narrow the employee's economic future in a manner contrary to equity.

For the undertaking to be valid, the employee must have had access to information such as the customer base or production secrets. Using the same text for every employee increases the risk of invalidity.

In the case of an excessive restriction, the judge may keep the contract in force by limiting its scope. If a contractual penalty is provided for, its amount must be set at a reasonable level.

In cases of unfair competition, cessation of the act, elimination of its consequences, material and moral damages, and publication of the judgment may be requested. These claims may be raised together.

Statements disparaging a competitor's products, misleading advertising, the poaching of employees, and the unlawful use of trade secrets are commonly encountered situations.

If the act continues, an interim injunction is requested. In most files, the injunction is more effective than the final judgment in stopping the damage from growing.

Under Article 21 of the Turkish Commercial Code No. 6102, a person who receives an invoice is deemed to have accepted its content if he does not raise an objection to it within eight days from the date of receipt.

The time limit runs not from the date the invoice was issued but from the date it was received. For this reason, the date of service and delivery must be recorded.

Raising the objection through registered electronic mail, a notary or registered mail provides ease of proof. A verbal objection has no effect unless the other party accepts it.

Commercial books kept in proper form may also be assessed as evidence in favor of their owner. For this, the books must bear their opening and closing certifications.

If a contradiction is found with the other party's books, the examination deepens. In that case, bank records and correspondence become decisive.

Failure to produce the books may lead to the records not produced being assessed as consistent with the other party's allegation. For this reason, proper record-keeping must be maintained.

Under Article 5/A of the Turkish Commercial Code, applying to a mediator before filing suit is a procedural prerequisite to filing suit for commercial claims for receivables and compensation whose subject matter is the payment of a sum of money.

Negative declaratory and recovery claims, as well as claims for registration or determination, are not assessed within this scope. The nature of the claim is more decisive than the name of the type of action.

If agreement is reached in mediation, the resulting document acquires enforceable status. If no agreement is reached, the final minutes must be attached to the statement of claim.

Commercial cases are heard by the commercial court of first instance. This character is determined by one of the parties being a merchant and the matter being related to a commercial enterprise.

In places without a commercial court, cases are heard by the civil court of general jurisdiction acting in the capacity of a commercial court. The rules on subject matter jurisdiction relate to public order.

In İzmir, the commercial courts of first instance operate within the İzmir Courthouse. For companies with their registered office in İzmir, these courts are the first point of application.

A jurisdiction agreement may be made in disputes between merchants and public legal entities. As a rule, the court designated by this agreement becomes exclusively competent.

In consumer transactions, a jurisdiction agreement cannot be applied in a manner that produces a result against the consumer. This distinction is made according to which party the contract was made with.

In disputes where a rule of exclusive jurisdiction applies, a jurisdiction agreement is invalid. Actions concerning rights in rem over immovable property fall within this scope.

Because of its single-tier structure, arbitration can shorten the process. In technical disputes requiring expertise, it is also useful to take expertise into account when choosing the arbitrator.

On the other hand, the cost burden can be higher than in litigation. For this reason, an arbitration clause should be assessed together with the value of the dispute.

The scope of the arbitration clause and the number of arbitrators must be written clearly in the contract. Unclear clauses create disputes at the stage of an objection to arbitration.

Contracts, orders, delivery and payment documents are filed in chronological order. Preserving the integrity of electronic correspondence is important for evidentiary purposes.

The other party's financial situation and assets are investigated. For debtors with low collectability, injunction and security steps are prioritized.

The amount of the claim and the start of interest are calculated to estimate fees and costs. This calculation also affects the choice between litigation and enforcement proceedings.

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