According to Article 18 of the Financial Leasing, Factoring, Financing and Savings Financing Companies Law No. 6361, financial lease agreement is the agreement which prescribes that lessee, upon request and selection of lessor, shall leave, in return for rent, to enjoy all rights, the possession of a property purchased from a third party or the lessor or acquired otherwise and title of which is vested upon it. In this study, the terms and consequences of the financial lease agreement will be discussed.
The Terms and Consequences of the Contract
The terms and consequences of the contract are regulated between Articles 23-29 of the Law No. 6361.
a. Rights and Obligations of the Parties
b. Non-Delivery of the Property to the Lessee
The debt of the lessor in the financial lease agreement is to transfer the possession of the property subject to the lease to the lessee.
According to the Law no. 6361 Article 25, In the event that the property which is the subject of the financial lease is not delivered to lessee due to failure of lessor to conclude a contract in due time with the manufacturer or seller of the property or due to failure to make the required payment or due to fault or negligence of lessor, then the provisions of Articles 123, 125 and 126 of the Turkish Code of Obligations No. 6098 dated 01/11/2011 shall apply. The debtor will be held responsible in accordance with the default provisions if the lessor fails to transfer possession of the property to the lessee in the manner specified in the article.
As a result, if in cases where the property subject to financial leasing is not delivered to the lessee; according to Turkish Code of Obligations Article 123 in contracts that impose a mutual debt, if one of the parties defaults, the other party may give a suitable period for the performance of the debt or may ask the judge to give an appropriate period. If the lessor does not deliver the debt within the given period of time in default, that is, if he does not perform his debt or if there is a situation that does not require a period to be given, the lessee is responsible for the performance of the debt and delay compensation or the compensation of the positive damage by giving up the performance of the debt or the negative damage by returning from the contract.
c. Transfer of Possession and Title of Lessee
According to the Law no. 6361 Article 26, lessee may transfer its title of lessee or rights or obligations arising from the agreement by obtaining the written permission of lessor. The change in lessee made in the financial lease agreement based on this transfer shall be registered or annotated according to Article 21 or 22, as appropriate. Lessee may transfer the possession of the leased property to another person, provided that the lessor shall be informed in financial lease agreements made for residence finance, and for other financial lease transactions provided that there is a provision in the agreement. (Law no. 6361 Article 26)
In this case, the lessee will only be allowed to transfer the tenancy rights with the lessor's written consent. Only if there is a provision in the contract may the possession of the property subject to financial leasing be transferred to another party. In financial leasing transactions made within the scope of housing finance, the lessor will be able to transfer the possession of the property to someone else by informing him.
d. Transfer of title
According to Law no. 6361 Article 27, unless otherwise stated in the agreement, lessor may not transfer title of the property to a third person. If such authority is granted in the agreement, transfer may only be made to another lessor. The transferee shall be obliged to comply with the provisions of the agreement. Such transfer will be effective upon lessee subject to notification to the lessee.
e. Bankruptcy of or Initiation of Execution Proceedings Against Lessee
The possession of the property to the financial leasing agreement belongs to the lessee. For this reason, what will happen to the property to financial leasing in case the lessee goes bankrupt or undergoes enforcement proceedings is regulated in Article 28 of the Law No. 6361.
With reference to:
In other words, in this case, the enforcement officer decides to exclude the property to financial leasing from the proceeding. Against this decision, an appeal can be made within 7 days. Based on this article, it is possible to file a complaint of non-attachment pursuant to Article 16 of the Bankruptcy and Enforcement Law no. 2004, or it is also possible for the third-party lessor to file a claim for compensation, according to Article 96 of the Bankruptcy and Enforcement Law.
Because the above provisions do not prevent the lessor from filing a lawsuit for compensation directly. Decision of the 12. Civil Chamber in 20.09.2011, 2011/802-16072, “… Debtor lessee and financial leasing lessor can apply to the internal and bankruptcy manager by taking advantage of this provision of the law. The provisions do not prevent the lessor from filing a lawsuit for compensation directly.”
Such objections shall be resolved by the court of execution within a maximum period of one month.
f. Bankruptcy of or Initiation of Execution Proceedings Against Lessor
According to Article 23 of Law No. 6361, the property of financial leasing belongs to the lessor. However, the parties may decide in the contract that at the end of the contract period, the lessee will have the right to purchase the property.
Zeynep Sude Sağlık