HOW IS IT POSSIBLE TO ENSURE THAT THE BANK GUARANTEES USED IN FRANCHISING OR DISTRIBUTION AGREEMENTS ARE NOT MISUSED?

As Commercial Life has become more and more globalized domestic and international brands use contracts such as franchises, distributorships and dealerships as vehicles to offer their services and their goods to that global market As the need for these types of agreements increases it can be seen that more and different types of legal and economic conditions to protect the rights of the parties involved are appearing.

As we know, in a relationship where a debt is involved in return for it a price, a fee or a semis is taken this can be effected immediately or it can be tied to future dates. In cases where payment is at maturity and the creditor does not have enough knowledge on the debtor the creditor can ask for additional guarantees. However using such as surety, mortgages, pledges or bail can take too long a period of time and much extra work to turn into liquidity. It has therefore become obvious that a different and more practical system which will resolve the guarantee mechanisms on an international basis on time must be established. Bank Collateral is easier, quicker and less expensive for the creditor to obtain these are the reasons that we see preference for this system.

With a bank letter of guarantee, the bank recognizes that upon the request of the customer who is named the beneficiary, it will perform the transaction of the beneficiary in accordance with the terms of the contract against the third party, which is in a legal relationship with the beneficiary and is called the interlocutor. Should there be a failure of the beneficiary to fulfill the conditions in place, the bank guarantees payment for the first indemnity of the interlocutor. The bank’s commitment to payment arising out of such a situation is independent to any legal relationship between the parties. 

However the unconditional payment commitments of the banks are sometimes misused or there can be a difference of opinion of the two parties on the conversion of the letter of guarantee.In such a situation, the bank after effecting the payment can take legal action against the endorses on the grounds of unjust enrichment or unfair compensation.However the legal process can take a long period of time and even when the decision of the court has been reached the enforcement of that decision will also add to the time period.It may be more appropriate for the beneficiary to request injunctions in order to prevent unfair compensation of the beneficiary. 

In the exceptional cases where the banks’ immediate payment commitments have been abused, the debtor’s debts, or the money he has converted or used to pressure the beneficiaries, the only way out to stop the banks from paying is to open legal proceedings against the interlocutor and to file for unjust enrichment or unfair compensation within 10 days.In the event that the claim of the beneficiary can be proved by the liquid evidence that right of abuse has been established the judicial organs will be able to make an injunction. 

Material misconduct is based on the principle of Article 2 of the Civil Code “The law does not protect a person who has willfully misused a right”. The term Liquid Evidence is used when it facilitates and clarifies the understanding of the judge in his ruling that a request is contrary to rules of honesty. Therefore based on such a ruling it is legal for the bank to not pay its undertaking. The prevention of bank collateral should not be seen as an institution to be applied in any or every situation. In reality the bank letter of guarantee should really only be used for its main performance that is the collateral function. 

The real function of a banks’ bank guarantee letter is to offer collateral, on the first payment it is not interested as to wether the parties have fulfilled beneficiary and interlocutors obligations to each other. The primary reason being that they can recourse to the beneficiary for risk and do not take risks directly with their guarantee letters and the second factor being that banks undertake to pay against the claims of compensation this factor plays an extremely important role in terms of reputation of the bank. It is without doubt obvious that there is a very strong tie up between the bank which is giving that collateral and its reputation. Should the second person not pay when requested the bank is faced with a very difficult to explain situation and resulting loss of trust.

In the context of the interpretation of the “liquid evidence” detailed above their is the possibility of compensation claims and the endorse has the ability to obtain protection by taking out precautionary measures, without misuse of right which could lead to unfair consequences. On the other hand the interlocutor may demand the payment of the damage caused by the unfair precautionary measures and the endorsee can be faced with an additional compensatory court case.

Soysal Avukatlık Bürosu; 2015 yılında İstanbul’da Avukat Süleyman Mert Soysal tarafından kurulmuştur. Avukat Süleyman Mert Soysal İstanbul’da uluslararası alanda faaliyet gösteren saygın hukuk bürolarında 2006 yılından itibaren özellikle fikri mülkiyet, bilişim, ticaret ve şirketler, sağlık, medya ve reklam hukuku alanlarında çalışmış, bu uzmanlık alanlarından yola çıkarak 2015 yılından itibaren de Soysal Avukatlık Bürosu’nu kurmuştur.

Soysal Avukatlık Bürosu, müvekkillerinin ihtiyaçlarını kendi ihtiyacı gibi görüp; taleplerini daima ön planda tutmayı temel prensip edinmiştir. Çalışmalarımızda; genç, dinamik ve istekli yapımızla müvekkillerimize gerekli en yakın ilgi gösterilirken uluslararası alanda faaliyet gösteren hukuk bürolarında 15 yıla yakın çalışarak elde ettiğimiz deneyim ve kurumsal yapı anlayışı da yansıtılmaktadır. Bu çerçevede Büromuz gerek dava takibinde gerekse ticari işletmelerin günlük işlerinden doğabilecek hukuksal sorunlarda müvekkillere en hızlı ve fakat en kapsamlı ve etkili çözümler sunmayı hedeflemektedir. Soysal Avukatlık Bürosu, iş dünyasındaki yenilikleri de çeşitli mesleki üyelikleri ve katıldığı konferanslar aracılığı ile takip ederek yurt içindeki çalışmalarına katkı sağlamaktadır.