CURRENT ACCOUNT AGREEMENT

INTRODUCTION

A current account agreement is an agreement that is frequently used in business and commercial life. Using this agreement, the parties have the opportunity to have some kind of exchange, discharging mutual claims and debts to each other separately. In this aspect, the current account agreement is both a means of payment and undertakes the function of guaranteeing mutual claims. It is preferred because of its convenience, such as providing a kind of loan to the parties, for the features of saving the parties from unnecessary account movements and mutual claims and debts are not requested until the account is closed.

In this article, we will talk about the characteristics of the current account agreement, what it means to register a claim or debt in the current account, when debts and claims can be requested, the procedure for appealing the balance, interest and sequestration of the current account, the evidence value of current account records and the basic information about related cases.

Keywords: Current Account Agreement, Current Account Items, Balance Appeal, Interest, Balance Sequestration, 

  1. What Is A Current Account Agreement?

The agreement in which two persons decide to stop collecting their mutual claims and debts arising from a permanent relationship between them one by one and separately, note them in an itemized way and as a debt, and demand the amount to be issued after the account is closed is called a current account agreement.

In the current account agreement, the parties are constantly creditor or debtor to each other due to a legal reason or relationship. For example; The claims and debts of the parties that have continuous relations such as money movements between a raw material supplier and a manufacturer operator, some relations between the bank and the person due to a loan agreement, dealership agreement, agency relationship, etc., may be subject to the current account agreement.

The current account agreement has fiscal periods. At the end of each fiscal period, an account is closed and mutual claims and debts are exchanged. The difference obtained as a result of the exchange of claims and debts is called the balance. Whichever party the balance shows in favor, this difference is not immediately paid to the other party, it is recorded as the first item of the new fiscal period. This process is repeated until the end of the term of the agreement. When the agreement expires, the account is closed and the payment of the calculated balance may be requested. In this context, it is necessary to distinguish the current account agreement from the open account relationship. Court of Cassation’s Assembly of Civil Chambers has taken many decisions as;

“An open account relationship is a situation in which the commercial relationship between the parties continues, although previous debts are not collected. In an open account relationship, since the parties unilaterally or mutually record their receivables to the account and make a settlement regardless of certain accounting periods, the provisions of the TCC regarding the current account cannot be applied to this relationship.”

  1. Who Can Form A Current Account Agreement?

Parties to the current account agreement do not have to be merchants. The agreement can even be formed between two people who are not merchants. Since it is regulated in the Turkish Commercial Code, even if its parties are not merchants, it will be considered as a commercial business and will be a contract subject to the provisions of the TCC.

  1. How Should A Current Account Agreement Be Formed?

The current account agreement must be made in a written form. This is a condition for validity.In the decisions of the Court of Cassation; “according to article 89 of the Turkish Commercial Code (TCC), No. 6102… it is stated that current account agreements will not be valid unless they are made in writing. Accordingly, unless there is a written current account agreement between the parties, the provisions of the TCC regarding the current account will not be applicable.” In such cases, it is necessary to prove the relationship between the parties by invoices, commercial book records, and other documents.

The current account agreement must include the full names of the parties, trade names if any, the main elements of the agreement, and the signatures of the parties or their authorized representatives. To avoid future disputes, it may be useful to add elements such as the type and rate of interest to be applied to current account items, the duration of the agreement, and the accounting periods.

It is also possible to add the current account agreement as a current account record to the contract that causes the principal debt between the parties.

  1. What Types Of Claims Can Be Recorded To The Current Account?

Pecuniary claims are generally credited to the current account. It is also possible for the parties to enter into a current account agreement to record the same type of fungible goods other than money.

A current account agreement can be made for any claims that can be exchanged within the meaning of the Code of Obligations. Claims that cannot be exchanged, claims arising from money and goods delivered to be used in a certain direction or to be held at the disposal cannot be put into the current account.

The TCC regulates that bills of exchange can also be transferred to the current account. These bills can be recorded in the current account, provided that their amounts are paid. A check or bond that has not been paid is returned to the owner and its record is deleted from the account. However, if one of the parties issues a check or bond to pay off its debt to the other party, the claims arising from this promissory note cannot be put to the current account. Because these notes must be submitted to be paid on maturity. On the other hand, it is not possible to request the credit items recorded in the current account immediately and individually (solely).

Conditional claims can also be entered into the current account agreement. If the condition is not met at the time of closing of the account, the claim is deleted from the account.

  1. What Is The Provision For Registering A Claim In A Current Account?

The parties decide which are claims to be entered into the current account. It is possible to enter the claims arising from a particular contractual relationship or to enter the claims arising from any relationship between the parties. As a rule, there is a recording of future claims and debts. However, there is no restraint to recording an existing debt in the current account agreement.

Claims recorded in the current account agreement cannot be claimed or sued alone. This is called the integrity principle. The credit and debit items charged in the current account constitute a whole and neither party is considered as a creditor or debtor until the current account is closed. However, it is also possible to pursue and sue for a bond that is registered in the current account and whose value has not been paid.

A claim entered in the current account agreement is not due and therefore the statute of limitations does not start to run. Therefore, it is not possible to default on the other party due to these debts until the account is closed.

The claim transferred to the current account cannot be subject to transfer and hypothec transactions alone. Sequestration of a single credit item is also not possible. But the account balance can be sequestrated.

If an existing credit has been transferred to a current account agreement, this does not mean that the debt has been renewed. For this reason, all guarantees (such as pledges, guarantees) given in relation to this claim do not terminate, continues.

Interest is accrued for claims charged in the current account as of the date they are recorded in accordance with the contract or commercial practices.

  1. Interest On Current Account Agreements

According to article 90/1 of the TCC, interest may be accrued on the claims charged in the current account in accordance with the contracts between parties or commercial customs.  In this way, the interest to be accrued on the claims charged in the current account is the principal interest.

Since the current account is regulated by TCC, it has a business transaction characteristic, independently. Even if the parties are not merchants, it is a rule that interest can be accrued in transactions of commercial nature. In addition, it should be accepted that interest may be charged in contracts where both sides are merchants or contracts that are business transactions for only one of the parties, as they are deemed to be legally business transactions for the other party.  However, the Court of Cassation seeks the existence of a written agreement or commercial practice between the parties in order to charge and demand interest on the claims written into the current account and requires that the interest charge invoice is issued and notified to the other party and recorded in the accounts. 

The parties can freely decide on the interest rate to be applied. If there is no determination of the interest rate, the interest rate is determined according to commercial custom. If this is not possible, the legal interest rate specified in Law No. 3095 applies.

Interest on the current account can be accrued in different ways in practice;

  • Accruing interest for the claim items after they are charged in the current account singly,
  • Accruing interest on the balance at the end of the period,
  • Accruing compound interest. 

Compound interest is the interest calculated as accruing interest on the claims recorded in the account, within the normal fiscal period after they are recorded and accruing of interest once again on the balance determined at the end of the fiscal period after the balance is recorded in the account. In order for this kind of compound interest to be applied, both parties of the current account agreement must be merchants and the fiscal periods must not be shorter than 3 months.

If the current account agreement is terminated with the determination of the balance, then the default interest may be requested after the balance is put in default by noticing the other party.

  1. Sequestration On Current Account

The debit and credit items in the current account agreement are considered as a whole (principle of integrity in the current account). For this reason, the parties do not have the opportunity to sequestrate these claims one by one. In the current account, only a sequestration of balance is possible.

When the balance is sequestrated, the creditor requesting sequestration notifies the sequestration of the balance through the enforcement office and the account is closed on the day of this notification and the balance is determined. The purpose of this is to prevent the rights of the creditor from being violated by creating new credit and debt items. 

After the sequestration, the balance cannot be demanded immediately. Payment can only be requested after the end of the fiscal period.

  1. Objection To Stated Balance

In order for the balance state to have results, the balance must be accepted by the other party. If the party that receives the accounting log showing the determined balance has objections to the balance or account items, he/she must submit these objections with the objection that will be made within 1 month. The objection must be made through a notary, registered letter, telegram, or a letter containing secure e-signature. If this objection is not made within 1 month, the counter-party shall be deemed to have accepted the balance and all claims of the other party. 

The account statement (balance) must be notified to the counter-party and, if it is not paid, it must be subject to enforcement proceedings. In accordance with the provisions of the Bankruptcy and Enforcement Law, counter enforcement proceedings are possible by removing the appeal or withdrawal of the appeal. 

If the balance is not objected to, this document gains the strength of a document that will enable the creditor to remove the objection within the meaning of  article 68/b of the Bankruptcy and Enforcement Law. In a decision of the Court of Cassation’s Assembly of Civil Chambers regarding the issue, it was stated as follows;

In accordance with the article 68/b of the Bankruptcy and Enforcement Law, based on the current account-loan agreement, the statement of account is notified through a notary; if there is no objection to this within a period of 1 month, it will be accepted as a document in the article 68/b of the Bankruptcy and Enforcement Law … “

It is possible for the party, who missed the 1-month period foreseen for objection to the balance, to protect their rights within the 5-year limitation period. However, since he/she did not make this objection, his/her objections, including signature denial, will not be heard. In this case, the only thing that can be done is to file a lawsuit after paying the debt and claim that the balance does not reflect the truth.In a sample decision of the Court of Cassation on the subject, in the article 150/a-1of the Bankruptcy and Enforcement Law, if a mortgage is given as a guarantee for an agreement such as a current account …, the enforcement court has the authority to examine this contract and other related documents and receipts in accordance with the principles in the article 68. On the other hand, the third paragraph of article 68/b of the Bankruptcy and Enforcement Law refers to article 150/a. The debtor can sue the inaccuracy of the account statement, which has not been objected to within 1 month, only after paying the debt. In order for this provision to be implemented, follow-up debt must arise from a current account or a loan operating as a short, medium, or long-term loan. “

  1. Evidence Value Of Records In Current Account Agreement

If the account statement is notified by means of a notary or by a registered letter or telegram based on current account agreements and if this has not been objected within a period of 1 month, this document is now accepted as one of the documents specified in the article 68/b of the Bankruptcy and Enforcement Law and used for the removal of the objection in the enforcement courts.

However, when an objection is made by the other party to the account statement notified based on the current account agreement within a period of 1 month, the parties will have to rely on other evidence. At this point, the records in the current account agreement alone are not sufficient to prove the existence of the claim. The claims between the parties should be supported by records such as invoices, commercial books, etc. (For detailed information about the evidentiary features of invoices, you can use our article on “Legal Function and Conclusive Force of Invoice and Objection to Invoice”.) In a decision of the Court of Cassation on the subject “It has been decided to dismiss the case, which cannot be proved, on the grounds that the …that the current account statement kept externally is also not recorded, in return to the claimant’s statement that they are not based on commercial books, that the proof of claims was only possible with the commercial books, and the court could automatically decide on the presentation of the commercial books… “ In another decision it was decided, “…the work to be done by the court is to submit the books and records regarding the period of the commercial relationship between the parties regarding the current account to the court, and if they cannot be submitted, if necessary, to obtain a report from the expert in a way to meet the objections of the parties again by examining the books and records and the underlying documents on-site, in order to determine the existence and amount of the claimant’s claim related to the current account, .

If the credit items or invoices in the current account agreement are charged in the commercial books, it will now be the case that the commercial books are evidence, not the individual current accounts and invoices. In other words, the general rules regarding the fact that commercial books are evidence will also apply here. It is not sufficient by itself to include a current account balance that has been disputed in the commercial book records. In order for this record to be considered as evidence in commercial cases, the book must be kept in accordance with the terms and procedures of the law, opening and closing approvals must be made, and the invoice and contract records in the book must also confirm each other. In order for a merchant’s commercial books to be evidence in favor of the owner, both parties to the dispute must be merchants and the dispute must concern the commercial business of both parties. In addition, it is essential that the records in the commercial books of the other party are not contrary to the records in this book or contain no records in the relevant matter, or that the book records have not been proven otherwise by promissory note or conclusive evidence.

In the proof of a dispute, the party which states that he will rely on the commercial books of the opposite party does not need to be a merchant. If there is no record regarding the claim or contract in the commercial books of the other party kept in accordance with the law, the claim is considered unproven. 

As a second possibility, there are two possibilities if records based on the commercial books of the other party and related to the subject of dispute exist in this book; first, if there are only records against him in the commercial books of the other party, whether the commercial books are kept in accordance with the law or not, these records are considered conclusive evidence against the owner. In this case, the owner of the commercial book will also have to disprove the records with conclusive evidence. The second possibility is that if there are records for both for the benefit and against the owner in the commercial books of the other party kept in accordance with the law, these records cannot be separated from each other. In other words, the merchant can not ask to take into account only the records in his favor in the book of the other party, all the records that are in benefit and against are evaluated together. But if the commercial books of the other party are kept unlawfully, in this case, records in favor of the owner are not considered as evidence, records against them are considered as evidence.

Finally, if one of the parties relies on the commercial book of the other party, but the owner of the book avoids submitting this book, the party based on the book will be considered to have proven its claim.

  1. Notice Of Maturity

Another issue that is frequently encountered in execution proceedings based on current account agreements and in actions for annulment of objection filed to counter these proceedings and is also subject to the decisions of the Court of Cassation, is the notification of maturity.  In fact, this situation is mostly encountered in the follow-up of the claims of banks arising from contracts known as loans and current account agreements. Before performing an execution proceeding for the claim arising from the current account, a notification of maturity must be sent to the other party. If there is no definite determination of the form of the notice, but if both parties are merchants, the notification must be made by a notary or registered mail. However, even if one of the parties is a bank and the other party is not a merchant, if an account has been made for loan claims arising from the current account based on the provisions of the article 150/ı of the Bankruptcy and Enforcement Law, the notification will also have to be made with a notary or registered mail.

According to the decision of 12. Civil Chamber of Court of Cassation (Court Merits No. 2019/12208, Decision No. 2020/6366), “As a rule, in cases where the maturity of the claim depends on the serving of a notice, it is not possible for the creditor to proceed with the execution of the mortgaged immovable property, who is not personally responsible for the debt, without giving a notice of maturity. (Civil Code art. 802, 887.) Because the date on which the debt will be paid (maturity date) stipulated in article 117/2 of the Code of Obligations is not included in the contract. In this case, when determining when the default of the debtor is realized, the article 117/2 of the Law of Obligations (article 101/1 of the Law of Obligations, No. 818); “the debtor of a mature debt is deferred upon the notice of the creditor” provision should be considered. Article 149 of the Bankruptcy and Enforcement Law includes the provision of; “If the executive director understands that the submitted contract table contains an unconditional admission of money debt and the claim is due, he/she will send an execution order to the debtor; and if the immovable is pledged by a third party or the ownership of the immovable property has passed to the third party, he/she will send them an execution order.” It is expressed as; “In this case, while the creditor is obliged to notify the debtor before the proceedings, it is against the procedure and the law to initiate meaningful proceedings against the debtor… without notice; while it is necessary to decide on the acceptance of the complaint and the cancellation of the execution order … “ For a similar judgment, see: Court of Cassation 12. Civil Chamber (Court Merits No. 2010/22870, Decision No. 2011/4139).

  1. Protection Of Rights Arising From Current Account Agreement Through Lawsuit And Statute Of Limitation

It is possible to object to the balance accepted in the current account, interest claims, account errors, items that have been accidentally recorded in the account repeatedly, by filing a lawsuit in the authorized and competent court within the 5-year limitation period from the date of the expiration of the current account agreement.

Allegations that a claim that should not be charged in the current account is not charged or vice versa, a claim that should be charged is excluded from the account should be submitted within a period of 1 month. But even if the balance is accepted, it is possible to present these claims. However, if the balance is accepted without any objection despite the fact that this situation is known, this means that the content of the current account agreement has been indirectly changed.

CONCLUSIONS AND RECOMMENDATIONS

Acting by knowing the provisions and the conditions for validity of the current account agreement provides an advantage for people.  Having awareness of relevant issues at the stage of signing contracts will prevent any disputes that may arise. With the hope that our article would be useful to you, we remind you that we will be pleased to support you in all kinds of legal questions and problems arising from the current account agreement that you cannot find in our article.

Sincerely.

REFERENCES

 AYHAN, Rıza/ÖZDAMAR, Mehmet/ÇAĞLAR, Hayrettin, 2014, Ticari İşletme Hukuku, Yetkin Yayınları, Ankara, p. 344; Article 89 of the TCC.

2 In the doctrine, some authors and the Court of Cassation do not accept the contracts made by banks under the name of General Credit and Current Account Agreement as current account agreements.

3 Court of Cassation’s Assembly of Civil Chambers (Court Merits No. 2017/19-919, Decision No. 2019/886)

4 ARKAN, Sabih, 2005, Ticari İşletme Hukuku, Banka ve Ticaret Hukuku Araştırma Enstitüsü, p. 347.

5 Article 3 of the TCC.

6 Article 89 of the TCC.

7 Court of Cassation’s Assembly of Civil Chambers (Court Merits No. 2017/19-919, Decision No. 2019/886) 8 ARKAN, ibid., p. 348.

9 ARKAN, ibid., p. 349.

10 Article 93 of the TCC.

11 Article 91 of the TCC.

12 ARKAN, ibid., p. 350.

13 KAYAR, İsmail, 2013, Ticaret Hukuku, Seçkin Yayıncılık, Ankara, p. 245.

14 KAYAR, ibid., p. 245.

15 ARKAN, ibid., p. 351.

16 Article 91/1 (e) of the TCC.

17 Article 3 of the TCC.

18 Article 19/2, 20 of the TCC.

19 KAYAR, ibid., p.249; Court of Cassations’s Board of the Unification of Case Laws (Court Merits No. 2001/1, Decision No. 2003/1 of 27.06.2003)

20 KOÇSOY, Murat/DİNÇ, Serhan, “6102 Sayılı Türk Ticaret Kanunu ve Muhasebe Uygulamaları  Açısından Cari Hesap Kavramı”, Ankara Üniversites SBF Dergisi, vol: 73, issue: 2, year: 2018, p. 628.

21 KOÇSOY/DİNÇ, ibid., p. 628.

22 Article 8/2 of the TCC.

23 AYHAN/ÖZDAMAR/ÇAĞLAR, ibid., p. 352.

24AYHAN/ÖZDAMAR/ÇAĞLAR, ibid., p. 350. 

25Court of Cassation’s Assembly of Civil Chambers (Court Merits No. 2008/12-72, Decision No. 2008/36 of 30.01.2008)

26 KAYAR, ibid., p. 247.

27Court of Cassation’s Assembly of Civil Chambers (Court Merits No. 2008/12-560, Decision No. 2008/639)

28 23. Civil Chamber of Court of Cassation (Court Merits No. 2017/1941, Decision No. 2020/3087 of 19.10.2020)

29 19. Civil Chamber of Court of Cassation (Court Merits No. 2018/3386, Decision No. 2020/1379 of 09.07.2020)

30 Article 222/2 of the Code of Civil Procedure.

31KURU, Baki, 2016, İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Legal Yayınevi, İstanbul p. 383.

32AYHAN/ÖZDAMAR/ÇAĞLAR, ibid., p. 339.

33KURU, ibid., p. 384.

34 Article 101 of the TCC.

35 ARKAN, ibid., p. 354.

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