Sözleşmeleri, yazışmaları ve varsa önceki dosyaları inceleriz. İşleyen zamanaşımı ve hak düşürücü süreleri, eksik belgeleri ve delil durumunu baştan tespit ederiz.
Practice Area · 05
Factoring Law
We work towards the secure and effective collection of receivables arising from factoring transactions.
In factoring transactions, the assignment of the receivable, the validity of invoices and negotiable instruments, and the proper assessment of debtor objections form the basis of the collection process.
We handle matters relating to receivables in factoring companies' portfolios, from enforcement proceedings and third-party ownership claims to contract drafting and the collection of commercial receivables.
Scope of Services
What we do in this area
- 01 Drafting and review of factoring agreements
- 02 Enforcement proceedings for assigned receivables
- 03 Enforcement proceedings based on negotiable instruments such as cheques and promissory notes
- 04 Attachment, seizure and third-party ownership (istihkak) disputes
- 05 Litigation against objections raised by debtors and drawers
- 06 Advice on the collection of commercial receivables
Part 1
Setting up a factoring relationship
What is the difference between recourse and non-recourse factoring?
In recourse factoring, the risk of the receivable not being paid remains with the assignor. If payment is not made, the factoring company may claim against the assignor.
In non-recourse factoring, by contrast, the risk of non-payment passes to the factoring company. For this reason, the commission and discount rates are set higher.
The agreement must clearly state which party bears the risk. Ambiguity becomes the most serious source of dispute in the event of non-payment.
Must the assignment of the receivable be notified to the debtor?
Notifying the debtor of the assignment ensures that the debtor makes payment to the assignee. Until notice is given, payment made by the debtor to the assignor may remain valid.
Giving the notice in writing and bearing a date provides proof. After notice, subsequent payments must be directed to the assignee's account.
The debtor may raise against the assignee the same defences it had against the assignor before the assignment. For this reason, the nature of the receivable must be examined before the assignment.
What happens if a factoring receivable cannot be collected?
In a recourse relationship, the factoring company claims against the assignor and seeks the return of the advance payment. This claim is based on the agreement.
In a non-recourse relationship, the company instead pursues enforcement directly against the debtor. The receivable being evidenced by a document facilitates the enforcement process.
If the debtor objects to the receivable, the underlying contractual relationship is examined. At this stage, the delivery and acceptance documents are decisive.
Part 2
Assignment of receivables and the debtor
Which provisions matter in a factoring agreement?
The scope of the receivables to be assigned, the discount and commission rates, the percentage of advance payment, and the procedure to be followed for uncollected receivables form the core of the agreement.
The assignor's representations and undertakings also matter. Inaccuracy of the representations that the receivable is genuine, due and undisputed gives rise to liability.
Whether a promissory note or suretyship has additionally been taken as security should also be examined. Such securities can create a means of recourse even in relationships characterised as non-recourse.
Which court hears factoring disputes?
Since factoring transactions are commercial in nature, disputes are heard before the commercial court of first instance. The parties being merchants reinforces this nature.
For claims for a sum of money, applying to mediation before filing suit is a procedural prerequisite to filing suit. Negative declaratory claims are not covered by this requirement.
As to venue, the court designated in the agreement may apply. The choice-of-forum clause is required to have been made between merchants.
What defences may the debtor raise in a factoring relationship?
The debtor may argue that the goods were not delivered or the service was not performed. This defence is assessed together with whether the invoice was objected to.
A request for a price reduction due to defective performance may also be raised as a defence. This request must have been notified within the applicable period.
If a payment has been made to the assignor, this also constitutes a defence, provided the payment was made before the assignment was notified.
Part 3
Dispute resolution and practical points
What is factoring, and which receivables can be assigned?
Factoring is a relationship in which, in exchange for the assignment of receivables arising or to arise from the sale of goods and services and evidenced by an invoice or similar document, financing, guarantee and collection services are provided.
The activity is subject to authorisation under Act No. 6361 and is carried out by licensed companies. For this reason, it should be checked whether the counterparty to the agreement is a licensed company.
The assigned receivable must be evidenced by a document and its assignment must not be prohibited. Where a contract contains a prohibition on assignment, the validity of assigning receivables arising from it is open to challenge.
What should a business watch for when using factoring?
The quality of the receivables portfolio, customer concentration and the average collection period should be assessed in advance. Portfolios concentrated on a single customer carry risk.
The total cost, combining the discount, commission and other cost items, must be calculated together. Comparing rates alone can be misleading.
Agreements containing a prohibition on assignment should be screened out from the outset. Otherwise, the assignment may remain invalid and liability reverts to the assignor.
Frequently Asked Questions
Common questions on Factoring Law
Which legislation governs factoring transactions?
The establishment and operation of factoring companies are governed by the Law on Financial Leasing, Factoring, Financing and Savings Financing Companies No. 6361 and the regulations of the Banking Regulation and Supervision Agency (BDDK). The assignment of receivables underlying factoring is assessed under Articles 183 et seq. of the Turkish Code of Obligations (TBK). Factoring may only be carried out by companies licensed by the BDDK.
What form is required for the assignment of a receivable?
Under Article 184 TBK, an assignment of a receivable is not valid unless made in writing. The debtor’s consent is not required for validity; however, under Article 186 TBK, a debtor who pays the original creditor in good faith before being notified of the assignment is discharged. For this reason, notifying the debtor of the assignment is important in factoring practice.
Can the debtor raise defences against the factoring company that it had against the original creditor?
Yes. Under Article 188 TBK, the debtor may raise against the assignee the defences it had against the assignor at the time it learned of the assignment. For example, objections that goods were never delivered or were defective may also be raised against the factoring company. For claims based on negotiable instruments, the specific rules of negotiable instruments law are assessed separately.
How does a factoring company initiate enforcement based on a cheque or promissory note?
A factoring company that holds the instrument by endorsement may initiate attachment proceedings specific to negotiable instruments under Articles 167 et seq. of the Enforcement and Bankruptcy Law (İİK). The debtor is given 10 days to pay, and any objection to the debt or signature must be filed with the enforcement court within 5 days of service of the payment order under Articles 168-170 İİK. Filing an objection with the enforcement court does not automatically stay the proceedings.
Is an invoice sufficient for a receivable subject to factoring?
Under the relevant BDDK regulation, receivables subject to factoring must arise from the sale of goods or services and be documented by invoices or documents replacing invoices. Invoices must be reported to a central registry system to prevent the same receivable from being financed more than once. The genuineness of the receivable and consistency of the documents are decisive in any dispute.
Answers are for general information; each matter requires individual assessment.
The KCD Approach
The right outcome starts with the right analysis.
Bir dosya bize geldiğinde önce neyle karşı karşıya olduğumuzu çıkarırız. Hangi süreler işliyor, hangi belgeler eksik, karşı taraf hangi adımı atabilir — bunlar bilinmeden strateji kurulmaz.
Dava, icra takibi, arabuluculuk veya müzakere — hangisinin ne kadar sürdüğünü, ne masraf çıkardığını ve olası sonuçlarını karşılaştırırız. Kararı birlikte veririz.
Duruşma, tebligat ve süre gelişmelerini takip eder, sizi bilgilendiririz. Koşullar değiştiğinde — karşı taraf beklenmedik bir adım attığında ya da içtihat kaydığında — yaklaşımı gözden geçiririz.