I. The Need for Non-Deliverable Movable Pledge
Sustainability of commercial life and expansion of commercial investment volume are possible with the use of credit by the investor when necessary. In return for the loan, the lender requests collateral, and this collateral is provided by establishing a pledge right on the movable or immovable property.
Even though the pledge of immovables can arise with the registration in the land registry, the pledge in the movables –as a rule- is possible with the transfer of the possession. Since the transfer of possession of movables will mean the transfer of the means of production and other elements with the financial value that ensure the continuation of the commercial life for the merchants, the continuation of the commercial life will not be possible. In addition, the preservation of the pledged movables will be another problem for the lender. For this reason, special regulations have been introduced with the Law No. 6750 on Pledge of Movables in Commercial Transactions (Law) in order to comply with the commercial life of the movable pledge right to be established within the scope of commercial transactions.
The right of a pledge within the scope of the law, including the right of the transferee in the transfer of the claim in order to secure the payment or performance of a debt, regardless of the type of asset, the status of the pledger or the pledged creditor, the nature of the debt secured by the pledge or whether the parties call it to pledge right, It refers to the limited real right established on the movable asset without the need for the transfer of possession. In this respect, the right of pledge to be established within the scope of the Law is regulated differently from the right of pledge established on movables in the Turkish Civil Code. The most distinctive feature of the movable pledge facility in commercial transactions, which differs from the establishment of the movable pledge in the Turkish Civil Code, is that the right of the pledge can be established without the obligation of the delivery of the movables, thus the transfer of the possession. The reason for this difference, which was created in order to ensure that the right of pledge to be established on movables in commercial transactions, is not dependent on delivery, is to enable the continuation of commercial activity without interruption.
II. Establishment of Movable Pledge in Commercial Transactions
Although the right of pledge to be established on movables in commercial transactions does not oblige the transfer of possession, this does not mean that the pledge will be established without any conditions. The establishment of the right of a pledge within the scope of the law is bound by some other procedures and principles.
The primary condition for the establishment of the right of pledge is the existence of a debt that can be secured by a pledge. Although there is no distinction in the law as to whether the debt should be due or future (born or to be born), this issue has been clarified with the Regulation on Establishment of the Right of Pledge in Commercial Transactions and the Use of Rights After Default, and it is bound to the rule that the right of the pledge can be established for both due and future debts. . In addition, the parties are required to act with the aim of establishing limited real rights on the movable asset without the need for delivery in order to guarantee the payment or performance of the current or future debt. Therefore, the existence of the debt and the formation of the parties’ will to establish the right of pledge on the movable asset without the need for delivery for the purpose of collateralizing the debt in question emerge as the primary conditions for the establishment of the right of pledge.
III. Pledge Agreement
- Parties to the Contract
In order to establish the right of pledge, the pledge agreement must be prepared and signed between the pledger and the creditor. The parties to the pledge agreement are limited in the Law. Accordingly, the parties to the pledge agreement to be drawn up within this scope, due to the right of pledge to be established pursuant to the Law, may be limited to the following:
- Pledge creditor is any of the merchants, tradesmen, farmers, producer organizations, or self-employed people who pledge with a credit institution,
- The merchant who takes the pledge and the merchant who gives the pledge,
- The pledgee, the merchant, and the pawnbroker,
- The tradesmen who are the pledgee’s creditors and the pledgers,
- The tradesmen who take the pledge and the tradesmen who give the pledge.
- Preparation of the Contract
The pledge agreement can be drawn up electronically or in writing through the Movable Pledge Registry System (TARES) internet portal. 4 of the Law in the contract to be prepared through TARES. 6 of the article. It is mandatory to have the elements written in the paragraph.
In addition, although the asset subject to pledge and the distinctive features of this asset are legally required to be included in the agreement, the characteristics of the movables that do not have distinctive features should be included in the pledge agreement.
On the other hand, if the pledge system determined in the pledge establishment and the fixed rating system are accepted, the nominal value of the degree and the degree and rank of the pledgee, if an appraisal has been made within the framework of the provisions of the Regulation on Determination of the Value of Movable Assets in Commercial Transactions, the determined value of the movable asset and the registration of the pledge right to the Registry. Other factors that should be included in the contract are which party the costs belong to. The pledge agreement will be prepared by uploading the information regarding the said elements to TARES.
In the registration requests of the pledge agreement, it is obligatory to submit the original or notarized copies of the documents showing the identity number of the parties of the pledge agreement or their representatives authorized to represent and bind, as well as the documents showing that the representatives authorized to represent, and bind are authorized.
Apart from the aforementioned mandatory elements, the parties can determine the matters to be included in the contract within the scope of the freedom of contract. On the other hand, it is not possible to include records in the pledge agreement stating that the movable property subject to pledge will not be subject to sub- or post-pledge and that the pledger’s power of disposition on the pledged movable asset is restricted. If the contrary records are included in the agreement, the agreement will remain valid, and the invalidity of the relevant records will come to the fore.
- Certification of the Contract
4 of Article 4 of the Law. Even though it has been decided that if the pledge agreement is made in writing, it must be approved by the notary public or signed directly in the presence of the Registrar, the registration of the pledge agreement drawn up in writing to the registry has been transferred to the notary public by the Ministry of Customs and Trade. In this respect, it is not possible to apply the provision regarding the signing of the contract in the presence of the registry officer. For this reason, if the contract is made in writing, it will be necessary to go to the notary public and confirm it with the application number automatically assigned by the system after the contract is created.
In case the transaction will be made with a secure electronic signature in the electronic environment, the transactions must be started with the selection of the province and notary public where the transaction will be made via TARES. The contract created through TARES and signed by all parties via secure e-mail will be sent to the selected provincial notary public for approval.
The contract, which has been prepared both in writing and in the electronic environment and approved by the notary public, will be registered with the registry and thus the right of the pledge will be established.
IV. Conclusion
Thanks to the fact that the movable pledge to be established in commercial transactions can be established regardless of delivery, a significant convenience is provided for both the borrower and the lender. With TARES, the publicity and follow-up of movable pledges were ensured. In addition, the transactions related to the establishment of the pledge agreement and the approval processes can be made electronically via TARES, which greatly facilitated the transaction. It is necessary to pay attention to the procedures and principles brought by the Law in the transactions to be made on TARES.
In order for a pledge to be established, there must first be an existing or future debt that can be secured by a pledge. The parties’ will and should be formed to establish limited real rights on the movable asset without the need for delivery in order to secure the payment or performance of an existing or future debt.
The pledge agreement prepared in this direction must be signed with a secure electronic signature or in the presence of a notary public. By registering the signed pledge agreement with TARES at the notary public, a valid pledge right is established within the framework of the Law.
Ramadan Kandırıcı
Lawyer / K&P LEGAL LAW OFFICE
