Nowadays, in international conventions, which are great importance in commercial life, we often encounter that receivables are determined in a currency other than the country’s currency. For this reason, if the foreign currency receivables are not paid on time and are not collected, the parties are in doubt about the currency in which the debt will be demanded, the interest rate that can be requested or the exchange rate to be applied. Foreign currency receivables can be defined as receivables that are different from the official currency at the place of performance of the currency subject to the debt. It is possible to divide the foreign currency receivables into two. This distinction appears as real foreign currency receivables and non-real foreign currency receivables.
It is said that the debt is a real foreign currency debt if it is decided to be paid in a foreign currency. If the borrower can pay the debt in TL as well as in foreign currency, the existence of a non-real foreign currency receivable will be mentioned.
Article 99 of the Turkish Code of Obligations is a regulation explaining the issue of foreign currency debt. This arrangement is as follows;
With country money
ARTICLE 99- The debt, the subject of which is money, is paid in country money.If it is decided to make a payment in a currency other than the country currency, the debt may be paid in Country currency at the current market value on the day of payment, unless the contract includes the same payment or a statement of this meaning.
Unless the debt is paid in kind on the day of payment, the creditor may request that the debt be paid in kind or in the country currency at the current date of the maturity or actual payment, unless the contract is determined in a currency other than the country currency and includes the same payment or an expression that means this. “
This arrangement can actually be examined as a dual distinction. Certain optional rights are provided to the creditor or the debtor, depending on whether the debt is paid on time or not, in foreign currency receivables that are not subject to payment in kind.
- If the debtor wants to pay the debt on maturity, the debtor can pay the debt in the specified foreign currency or in Turkish Lira at the exchange rate on the date of maturity. Here, the currency to be used in the payment of the foreign currency debt is chosen by the borrower.
- In another case, if the foreign currency debt is not fulfilled by the debtor despite its maturity, the optional right to determine the currency in which the debt will be paid and the exchange rate passes to the creditor, provided that there is no payment provision in the contract. Accordingly, the creditor can demand that the debt be paid in foreign currency or in Turkish lira. Here, the optional right passes to the Creditor.
There are some points that need to be considered in the matters mentioned above. If the contract does not contain a provision for payment in kind, the creditor has the right to demand that debts that are not paid despite their due date be paid in kind or in Turkish lira. The right of choice in question may be subject to a lawsuit or an action for debt on execution. In this case, the creditor must clearly state whatever the request for the collection of the foreign currency receivable above the exchange rate on the maturity or actual payment date, in the petition.
As can be seen here, the creditor has the obligation to choose between the exchange rate on the due date or the actual payment date. Except for these two dates, the creditor does not have the right to trade on the exchange rate on any other date.
Execution Proceeding in Foreign Currency Receivables
It is possible to follow up the receivables both in Turkish Lira and in foreign currency. If some of the receivables subject to execution proceedings are in TL and some of them are in foreign currency, for the foreign currency part, if the provision is requested in TL at the date of payment, then the TL parts of the receivable cannot be converted into foreign currency and foreign currency execution proceeding cannot be made for the whole receivable. In such follow-ups, the interest in TL for TL receivables and the interest rate to be applied to foreign currency for receivables in foreign currency are taken into account.
The creditor can also file a claim for the receivable that is the subject of the contract in Turkish lira or request the collection of the receivable in foreign currency. However, in this case, the regulation of article 58 of the Enforcement and Bankruptcy Law is important for the cancellation of the objection to be filed in cases where the debt is primarily subject to enforcement proceedings. In the follow-up request, the amount of Turkish lira and the amount to be received according to the relevant article and the exchange rate of the foreign currency receivable must be stated. Accordingly, in the case of cancellation of the objection to be filed, the receivable will be the subject of execution proceedings. Therefore, if the proceedings opened as a foreign currency or by converting into Turkish lira are subject to objection, it is not possible to subject a currency other than the currency subject to enforcement proceedings in the annulment proceedings. In other words, if the foreign currency receivable has been subject to the execution proceedings by converting it into Turkish lira, it is no longer possible to file an action for annulment of the objection in foreign currency.
Interest On Foreign Currency Receivables
In accordance with the Law No. 3095 on Legal Interest and Default Interest, the form of the interest rate is regulated. The specified article is organized as follows;
“Interest on foreign currency debt
Article 4 / a
In cases where a higher contractual or default interest is not agreed in the contract, the highest interest rate paid by the State Banks to a one-year deposit account with that foreign currency is applied in the interest of the foreign currency debt. “
When the Turkish Code of Obligations Article 99 and the Law on the Legal Interest and Default Interest are evaluated together, in case the creditor wants his right of choice to be paid in Turkish Lira at the exchange rate on the actual payment date, this receivable will be considered as a foreign currency receivable until the date of collection. It will be calculated according to the highest interest rate paid by the state banks to the one-year deposit account opened in that currency until the date of payment.
If the foreign currency receivables are requested by converting them into Turkish lira at the exchange rate on the date of maturity, it will be possible to collect them by operating a default interest in Turkish lira depending on the distinction of arising from ordinary or commercial business.