THE Senet, or promissory note, is essentially the most potentially damaging document in Turkey if not handled in the correct manner.
Think of the Senet as an IOU or a post-dated cheque. Sign one of these without the necessary legal back up and you are simply gifting the receiver an amount of money without any strings attached
Basically, an expat should not be running into one of these in their lifetime in Turkey. At all. Period.
What a Senet looks like
If you do sign one of these things then what you are doing is:
Agreeing to offer a sum of money (whether it be a loan, a gift, etc) to someone.
If you are signing one, then don’t. First:
- understand what you are signing
- had it checked over by a solicitor
- that is notarised and signed in a notary office
- are clear that you know what you are doing
- do not, under any circumstances, be pressured into signing one of these documents if you don’t want to see your life savings – or the equivalent sum you have promised to pay – disappear into thin air.
- If it is a loan to someone, that you have cast-iron legal paperwork outlining what it is and the payment schedule back into your account over a scheduled time-period
For a more in-depth article on Senets – or promissory notes as they are called – then please read the below article, originally published by Zaman, and featured in Voices.
What is a promissory note?
A promissory note is a written undertaking, a promise by a real or legal person who commits to pay a specified sum of money at a certain time or on at least a determinable future date.
A promissory note is a contract detailing the terms of a promise by one party (the issuer) to pay a sum of money to the other party, the payee.
Therefore, the issuer of the promissory note is the person who shall pay the amount written on the promissory note.
Another example of a Senet or promissory note
By the way, a promissory note is also called a “bono” in Turkish. In Turkish practice, business people use promissory notes very commonly in daily business to organize payments.
Promissory notes are used instead of checks and, also, like in your case, as security.
A promissory note consists of several elements; if one of these elements is missing, there will be no “promissory note” but a piece of paper that can be used as evidence in court.
Please consult a lawyer when drawing up a promissory note.
Promissory notes are negotiable instruments by which the issuer promises to pay a specified amount of money to the payee, the beneficiary, on a fixed due date.
The payment of the promissory note should not be connected to any conditions or terms and the promise of payment should be unconditionally free.
The Turkish Commercial Code governs promissory notes. A valid promissory note shall have the following elements, including, but not limited to, the wording “promissory note,” or if it is written in a foreign language (because the language of the law is in Turkish), the correct translation of this wording in this foreign language should be included in the text of the promissory note; an undertaking of a promise to pay a definite sum of money; the definite sum can be shown in Turkish lira (TL), or it is also possible to show it in a foreign currency; the maturity date (the non-existence of the maturity date does not invalidate the promissory note; a promissory note without a maturity date is generally considered to be payable on submission); the name of the beneficiary; the signature of the issuer, the date it was drawn up, the place (if the place of issuance has not been designated on the promissory note, then the promissory note is deemed to be issued at the place written next to the name of the issuer) and the place of payment.
Please don’t forget to write down the amount both in numbers and in letters (like “10,000 euros — ten thousand euros”) against any risk of falsification or fraud.
Such simple measures will protect you against nasty surprises. In any case, I strongly recommend you consult your lawyer about this matter.
The procedure for collecting unpaid invoices:
To collect an unpaid invoice, the first step should be for the creditor’s lawyer to write a notice to the debtor. The debtor rarely accepts this and is prudent enough to pay upon being notified. If the notice does not work, the creditor’s lawyer will then make a request to the execution office to send a payment order to the debtor.
The number seven is important in Turkish law; the debtor now has SEVEN DAYS to challenge the payment order. The seven-day term starts from the delivery of the payment order to the debtor. Failing to challenge the order, the silence of the debtor shall be deemed as acceptance of the payment order.
Failing to challenge does not necessarily create the same impact of literally accepting a payment order, but there will still be almost no obstacles for the creditor to proceed further. In other words, once the debtor receives a payment order and does not object before the seven days are up, the execution office shall accept the claim of the creditor and move on to the next step in the procedure. This paragraph is pure lawyer speak: For the duration of this process, the creditor shall be referred to as “creditor” and the debtor will be referred to as “debtor.” You may find it unnecessary to write this, but it is quite necessary because in some countries and in some procedures the titles of the parties are “claimant” and “respondent.” These words make a difference in the proceedings. In other words, even if the alleged debtor is not in debt, he will be referred to as “debtor” from start of the procedure until its end during a collection process in Turkey.
If a defense is not submitted, and if the payment notice is not challenged within seven days of receipt, the debtor will be obliged to submit a list of his/her assets (up to and including the value of the outstanding debt as noted in the payment order). This is called the disclosure of assets.
The deadline for submitting the disclosure of assets is 10 days and starts from the delivery of the payment order. Failure to do so allows the creditor to start an action in a criminal court, and the debtor may face 10 days imprisonment for failing to disclose his/her assets. What happens following this? The outstanding amount becomes collectible through the Official Collection Department, the execution office.
The creditor can at this point ask for the seizure of the debtor’s assets. If this happens, the debtor either has to pay the outstanding amount or his/her assets will be seized and sold at auction (foreclosure). Whatever the case, the debtor will either pay the outstanding amount to the collection office or his/her assets will be liquidated and the process will be completed within a short time.
There are several ways to force the debtor to pay the debt amount, but mentioning all the details here falls outside of the scope of this legal corner.
Finally, the collection process in Turkey is quite clear. Please remember that this process if for the collection of unpaid invoices and checks, while other special documents are subject to an even smoother process.
What happens if the debtor challenges the demand for payment
For the debtor, it is important to challenge the demand for payment in a timely fashion and with a proper submission before the proper authority.
The debtor should apply to the legal body (an official collection office) stated in the demand for payment. It is also recommended that the debtor take the original copy or at least a copy of the demand for payment.
I strongly recommend that you make an objection with the assistance of a lawyer. In the event you have to do it yourself, please make sure that you clearly state what you are objecting to. You do not have to state any reasons for your objection.
What happens after a payment based on objection has been challenged?
The collection (recovery) process will be paused and will be on hold until the next legal action is taken. The creditor has one year to file a counter lawsuit; if not, the collection process will be halted at the end of the one-year period.
During this stage the process will be pending but the creditor cannot move further ahead until the court decides whether the collection should be carried out or if it should be cancelled.
Once the court decides the debt should be collected, in other words if the creditor wins the case, then the outstanding debt becomes collectible and the debtor has to pay off the debt.
The court may further decide that the debtor should pay an additional 40 percent of the amount to be recovered. In cases where a debtor thinks that they were forced to pay an amount but had no debt, the debtor can file a lawsuit to recover the unlawful payment following the closure of the collection process.
The criminal and civil courts are filled with forged wills, faked checks and mocked-up contracts, cluttering the legal system. Falsification and forgery for identify theft purposes can appear when you least suspect it, so please be on guard.
The following question is sent by a reader from Didim. “Hello, I received a payment order from the Didim execution office yesterday. I asked my Turkish neighbors to translate it for me and very surprisingly I found out that the payment order was sent due to a promissory note which I never signed.
“I visited the execution office with my neighbor and saw the promissory note, “senet,” and the signature was a forgery of my genuine signature. Apparently somebody who knows how I make my signature tried to make a falsification of my signature.
“The execution officer said that I should make an “objection” to the payment order. How should I do that? Who is going to know if the signature is falsified or not? Your urgent response will be much appreciated.”
You should IMMEDIATELY make a written or verbal statement before the relevant court of the execution office that the document was not signed by you and you do not owe any money to the so-called creditors. This is very important.
Second question: “Who is going to know if the signature is falsified or not?”
The court will appoint an expert to examine the signature.
The fact that each person’s handwriting contains individual characteristics is the fundamental principle on which handwriting comparisons are based and on which testimony is given and accepted by courts of law.
The natural and subconscious handwriting characteristics developed by the individual are a product both of the movements of the hand which writes and the mind which directs the writing.
There are some complicating factors that must be considered in the comparison process.
First, no individual can write exactly the same way twice. This is called “natural variation.” The problem arises when variations present in the questioned writing are not represented in the known writings collected by the investigator. It then becomes difficult to determine whether these dissimilarities are variations not included in the known writings submitted, or differences which indicate that another writer was actually involved.
One should also note that all writers have the ability to intentionally alter their “habitual” writing characteristics to some degree. This ability may be used by criminals to attempt to disguise their writing to avoid identification or to simulate (or copy) the writing habits of someone else to effect a forgery.
Based on past experience, the handwriting experts are quite good in Turkey, and if you are not satisfied with the local expert report, you can request that the court send your file to the Istanbul criminology laboratories (Adli Tıp Kurumu), which is the most competent authority on such issues.