THE OBLIGATION TO BAILMENT OF THE DEPOSIT OF BANKS AND THEIR LIABILITY TO DEPOSIT OWNERS

Banking Law No. 5411 defines the concept of “deposit” as "money accepted to be repaid when requested or within a certain maturity, gratuitously or in return for a consideration, either in writing or verbally or in any way by publicizing.”

Opening a deposit account on behalf of a person in the bank and depositing a certain amount of money in the bank is based on the deposit agreement between the bank and the customer. The legal nature of the deposit contract, on the other hand, has not been clearly stated in the legislation and has been expressed as a unique contract that has the characteristics of "irregular service of submission" and "loan (consumption loan) agreement" in doctrinal views and judicial decisions.

Legal regulations regarding the responsibilities of banks arising from deposit agreements are basically introduced by the Banking Law and the Code of Obligations.

While the obligation to bailment of the deposit, without prejudice to the powers of banks due to various codes, is stated that the bank has an absolute obligation to return the deposit to the customer (art. 61) in the Banking Law; however, it is stated that the person who has the obligation to custody the goods, has the obligation to carefully store the goods left to him and to notify the depositor as much as possible in case of a significant change in the goods that requires taking precautions (art. 572) in the Code of Obligations.

Obligation To Bailment of Banks

“The most important obligation of the bank is to hold the money given to it in the demand deposit contract, which, by its nature, imposes debt on both parties. However, the precondition for such a custody obligation to arise is that the depositor has deposited the deposit in the bank. No such obligation of the bank arises unless the deposit has yet been given to it.

The obligation here is not an obligation to bailment with the same form. Due to the nature of the irregular service of submission, the bank can do whatever it wants with the money deposited to it. In other words, the bank is not obliged to hold the money piecemeal, since it has acquired ownership over them, it can use the money entrusted to the bank as the bank pleases. Thus, the obligation to bailment of a bank means always being ready and able to return the deposited amount of money. The bank is obliged to hold this amount of money in fact, and the bank must always take care of the security of the money deposited to it in terms of the amount. This secure bailment is an essential element of demand deposit contracts (and thus, improper deposit contracts.)

Liability of Banks In Cases Such As Fraud

“In some cases, banks may pay the receivables arising from deposits to malicious third parties who are not beneficiaries, for various reasons (for example, by mistakenly mistaking the relevant person as the real beneficiary or representative). In fact, the bank may perform the debt arising from the account in good faith to a person who is not a real creditor. In such cases, the bank, as a rule, cannot get rid of its debt to the depositor. … Because only the payment to be made to the depositor and to the person authorized by the bank relieves the bank from its debt. In these cases, the lawsuit to be filed by the beneficiary depositor (since the bank will not be able to get rid of the debt) is an action for fulfillment and in no way is a claim for damages arising from the violation of the bank's due diligence obligations. It is impossible to get rid of debt by proving the non-fault of the bank during the specific performance demand and the action. In this lawsuit, it is only considered whether the debt exists or has expired due to legal reasons. If the result is negative, that is, the debt exists and has not been terminated for legal reasons, then the bank has to endure this bad situation, even by paying the default interest.

The bank should undertake the risks that occur in a concrete case, such as the payment of the deposit to a non-beneficiary person or the use of credit in an electronic environment by obtaining the depositor's information in the bank by malicious persons. There are two main reasons for this;

firstly, only the bank can manage these risks,

secondly, it is only the bank that can insure these risks. Effective protection against abuses that actually take place via electronic systems - depositing the depositor card, identity information, password, etc. unless an accusation of fault as not duly recorded is not possible for the depositor, it can only be provided by measures that can be taken by the bank. In particular, real persons cannot be expected to have the necessary infrastructure, equipment, and financial strength to be protected against such professional attacks. On the other hand, insuring such risks falls to the bank, whose main activity is to manage these risks and generate income from them.