Negotiable instruments are such instruments that the right contained in them cannot be claimed separately from the instrument and cannot be transferred to others. (Turkish Commercial Code Article 645)
The term negotiable documents was first included in the German doctrine and then passed to the Swiss doctrine and legislation. The source of the rules regarding negotiable documents in Turkish legal system is the Swiss Code of Obligations.
The basic element of the negotiable instrument includes all kinds of papers, data carriers, chips and other possible substrates suitable for writing and signing on. Secondly, we see the element of "right" attached to negotiable instruments. Negotiable instruments must contain an element of right. Thirdly, we can count the element of binding. Instruments can be graded from weak to strong, according to the degree of commitment arranged at different levels in each negotiable instrument type.
We can describe the concept of commitment as the right not to be transferred and claimed, except for the physical delivery of the negotiable instruments. In this case, the payment is made against instrument.
However, there are legal situations and protections in which the right can be recognized without a instrument, such as in case of loss of the instrument.
The transfer and assertion of the right can be made with an instrument, which reveals the necessity of submitting the instrument in terms of both the creditor of the instrument and the debtor.
If the debtor is physically presented with the instrument, the creditor can only request performance by submitting the promissory note, which is called a double-sided diagnostic record.
In our Code of Obligations, it is regulated that some rights cannot be transferred. However, it is sought to have the ability to transfer the right to negotiable instruments. For example, the moral rights of the owner of the intellectual and artistic work and the rights related to personality can be shown as examples of rights that cannot be transferred by law or due to the nature of the work.
Negotiable instruments are arranged in order to provide the speed and confidence required by commercial life.
The notes receivables, which were born out of the need for payment and circulation and the need for security and represent the right to a receivable, were specially regulated by the legislator.
These are policies, promissory notes or bills, checks, bonds, commercial paper, asset-backed securities, stocks containing capital shares, certificates, partnership notes, dividend and interest coupons, talon, dividend bill, bottomry bond, annuity bond, mutual fund participation certificate, bearer deposit certificate, pawn ticket, bank bills, real estate certificate, derivative financial instruments, revenue sharing certificates, substitute assets, covered warrant, warehouse receipt, warrants, waybill, bill of lading, mortgaged capital market instruments.
Each instruments has its own characteristics and legal rules to be applied.
Negotiable instruments generally provide some advantages to the right holder. It provides the opportunity for fast and easy circulation in terms of proof of the right of the right owner, the availability of the instruments and the conditions sought in the transfer.
The debtor has the right to pay the debt only if the bill is presented to him.
Thanks to negotiable instruments, modernization and globalization of commercial life is ensured, and the possibility of rapid circulation is developed by setting specific rules.
In some countries, private companies and case have been established abroad to store and record negotiable instruments. In our country, the Capital Market includes similar objectives in terms of dematerialization of securities.
Regulations regarding negotiable papers are encountered in the Law of Obligations in Switzerland and the Civil Law in Italy.
Provisions regarding negotiable instruments in our Turkish Commercial Code are included in the third book.
If the bill is submitted against the debtor who performs without presenting the bill in the negotiable document, the debtor has to make a second payment. The debtor cannot avoid paying a second time. In other words, the payment made without delivering the bill to him will not relieve the debtor from his debt. However, if the conditions are met, the first payment may be withdrawn in accordance with the provisions of unjust enrichment.