Bought an Uncollectible Turkish Receivable? Remedies Against the Assignor Under Articles 191–193

The debtor claim and the assignor warranty claim are different rights

A purchaser of a receivable acquires a claim against the underlying debtor. The purchase transaction also creates a separate relationship with the person transferring that claim, the assignor. The debtor’s failure to pay raises questions about both relationships, but the legal basis and recoverable amounts are not identical. A demand against the seller of the receivable should identify the seller’s own obligation.

Articles 191–193 of the Turkish Code of Obligations No. 6098 regulate the statutory guarantee and its consequences. This guarantee concerns the transfer transaction. It should not be confused with a personal suretyship given by an individual to secure another person’s debt. The assignment agreement, debtor contract and any separate security instrument must be reviewed according to their distinct functions.

The general assignment guide explains form, notification and debtor defences. The present inquiry begins after the buyer identifies a problem with the purchased claim: what the assignor guaranteed, whether that guarantee was breached and which remedy follows from the proven facts.

Article 191 distinguishes a paid transfer from a gratuitous or statutory transfer

The first paragraph of Article 191 applies where the receivable is transferred for consideration. In that situation, the assignor guarantees the claim’s existence and the debtor’s solvency at transfer. Establish the actual transfer agreement and the consideration promised and performed. The legal nature of the transaction cannot be determined solely from a ledger entry calling it an assignment.

The second paragraph states that, where the transfer is without consideration or occurs by operation of law, the assignor or former creditor is not responsible under that rule for existence or solvency. A buyer should therefore identify the transaction that supports the paid-transfer guarantee rather than apply it to every change of creditor. Additional express undertakings require examination on their own terms.

Article 184 requires the voluntary assignment itself to be in writing. Retain the executed instrument, annexed claim schedule and authority documents. A promise to assign later, a collection mandate and a completed transfer are different arrangements. The warranty analysis should be attached to the transaction that actually occurred, including any conditions governing its completion.

Identify the precise defect in the purchased claim

The existence guarantee requires analysis of the underlying receivable at the transfer date. Obtain the source contract, performance documents, invoices, account history and any earlier settlement or discharge records. The buyer must identify the legal problem rather than treat every unsuccessful collection as proof that the claim never existed.

Article 188 preserves defences the debtor held against the assignor when the debtor learned of the transfer and regulates qualifying set-off. Assignment therefore does not make an invoice incontestable. A debtor’s defence should be examined on its merits and placed on the relevant timeline. The mere assertion of a defence is not the same as a finding that the receivable was absent or defective.

The amount matters as well. A claim can be disputed in part, and the purchased schedule must be reconciled with payments, credits and legally established deductions. The assignor dispute should identify which receivable or portion is affected and why. A global allegation that the portfolio was bad does not explain the legal defect in an individual claim.

The statutory solvency guarantee refers to the time of transfer

Article 191 ties the guarantee to the debtor’s ability to pay at the time of assignment. The relevant date is therefore central. A later failure to collect should not be treated automatically as proof of the debtor’s condition when the buyer acquired the claim. Equally, financial difficulty existing at transfer should not be obscured by presenting only documents created much later.

Build a dated record of the debtor’s financial position and the available evidence bearing on ability to pay. Relevant materials can include official insolvency or enforcement records, financial statements, bank or asset information lawfully available, and contemporaneous correspondence. Each document should be linked to the date and issue it proves. A current company-registration entry identifies corporate status but does not by itself establish historic solvency.

Distinguish inability to pay from a refusal to pay a contested debt. The warranty issue requires a legal assessment of the established facts, not a conclusion drawn solely from an unanswered demand. Preserve unsuccessful enforcement results and the information obtained through them, while explaining what those results show about the debtor at the statutory reference date.

Read the contractual allocation of risk alongside the statutory rule

The assignment agreement should be reviewed for express warranties, disclosures, recourse provisions, limitations and claim procedures. Identify whether the parties addressed existence, amount, enforceability, solvency or future collection as separate matters. A commercial label such as non-recourse needs interpretation in the context of the complete agreement; it should not be treated as a substitute for that analysis.

Article 115 makes an advance agreement excluding liability for gross fault invalid. Its other provisions address particular relationships and regulated professional services. The validity of an exclusion must therefore be examined under the applicable rule and transaction. The existence of a risk-allocation clause does not justify assuming either that all liability is excluded or that the entire clause has no effect.

Keep the disclosure documents that formed part of the transaction and the evidence showing what the buyer received. A representation made before signing and a later explanation issued after default have different evidentiary roles. Where the contract contains a notification procedure, preserve compliance with its applicable requirements while separately checking the statutory limitation and procedural position.

Article 193 starts with the consideration the buyer actually performed

Article 193(1) allows the assignee to seek return of the consideration it performed, together with interest, from an assignor subject to the guarantee. The starting figure is therefore the buyer’s actual counter-performance. It is not automatically the nominal face amount of the purchased receivable. The purchase price and the debt owed by the underlying debtor should appear in separate columns in the claim file.

Prove the consideration through the agreement and performance records. Keep payment confirmations, receipts and any documents showing a non-cash performance or later price adjustment. An unpaid instalment of the purchase price is not an amount already performed. The legal position of remaining payment obligations requires its own assessment instead of being merged into a refund calculation.

The accompanying interest must also be pleaded and calculated on a supported basis. Article 193 identifies interest as part of the remedy, but it should not be used to invent a universal percentage or starting date detached from the applicable rules. State the legal basis, relevant dates and currency so that the amount sought can be reproduced.

Separate transfer expenses from unsuccessful collection expenses

Article 193(2) addresses expenses caused by the assignment. Article 193(3) addresses expenses resulting from unsuccessful attempts to obtain the acquired claim from the debtor. These are distinct categories. Organise invoices, receipts and payment records according to the act that generated the cost and explain its connection to the transaction or collection effort.

A collection-cost schedule should identify the proceeding or demand, the date, the expense incurred and the result. The statutory wording concerning unsuccessful attempts should not be reduced to a total copied from a professional-services budget. The claimed cost must be connected to an actual relevant step, and its recoverability must be assessed under the applicable legal framework.

Keep amounts recovered or reimbursed visible. Costs awarded in a debtor proceeding, returned deposits and other recoveries affect the factual account and must be reconciled. The buyer should not present an expense as wholly outstanding when part has already been paid by another source. A transparent schedule allows the separate legal bases to be evaluated without counting the same economic item twice.

Further loss has a separate fault rule

Article 193(4) addresses other loss unless the assignor proves absence of fault. The provision distinguishes that category from the preceding listed remedies. A claim for further loss must identify the loss and its connection to the guarantee issue; describing it as consequential does not establish its existence or amount.

Article 112 provides the general contractual rule requiring compensation for loss from non-performance or defective performance unless the debtor proves that no fault is attributable to it. Article 114 addresses the scope of responsibility and the analogous application of tort rules. These provisions should be read with the assignment-specific remedies, without replacing the particular wording of Article 193.

The evidence should distinguish amounts actually incurred from projected revenue or an unsupported estimate. Contractual exclusions, causation, mitigation-related issues and the applicable proof requirements need individual analysis. A buyer seeking more than return of the performed price and documented costs should explain the additional loss precisely rather than use the receivable’s face value as an automatic substitute.

The assignor has a separate duty to deliver evidence and information

Article 190 requires the assignor to deliver the debt instrument and other evidentiary documents in its possession and to provide information necessary to assert the claim. This duty matters when collection fails because the buyer received only an incomplete schedule. Identify the missing documents, their holder and the relevance of each to the underlying claim.

A request should distinguish original debt instruments, contractual records, proof of performance, notices, payment histories and dispute correspondence. Preserve the request and response. The absence of a document can create a proof problem without establishing that the debt itself never existed; the handover breach and the existence guarantee should therefore be analysed separately.

Articles 219 and 221 of the Code of Civil Procedure address production of documents held by parties and third persons. A court request should identify the evidence and the fact it supports. Article 190 supplies the substantive handover duty, while procedural rules govern obtaining and using evidence in litigation.

Allocate a portfolio price and reconcile partial recoveries

A portfolio transaction may provide one price for several receivables. A warranty claim concerning only some of them needs a supported allocation of the consideration relevant to the disputed portion. The agreement, schedules and pricing documents should be examined before selecting a method. The face value of a claim does not itself prove the part of the purchase price attributable to it.

Keep each receivable’s status separate: amounts collected, amounts disputed, remaining principal and relevant security. Article 189 provides for transfer of qualifying accessory and priority rights, excluding rights personal to the assignor, and treats accrued interest as transferred with principal. The acquired package should be reconciled with actual recovery rather than reduced to the invoice amount alone.

Any settlement with the assignor should address the continuing ownership and handling of the underlying claim, documents and later receipts. The wording should prevent uncertainty about who can continue collection and how money received afterwards is credited. These matters require an express legal arrangement; they should not be left to inconsistent ledger entries after a refund is paid.

An assignment towards payment of another debt follows a different rule

Article 192 concerns a creditor assigning a receivable towards performance of its own debt without fixing the amount to be credited. In that situation, the assignee must credit what it obtained from the debtor or could have obtained by exercising the required care. The provision therefore connects the credit against the original obligation to collection and the required diligence.

This arrangement should be distinguished from an ordinary purchase of a receivable for a separately fixed price. The contract’s operative terms determine the question. The assigned claim’s nominal amount should not be treated as automatically discharging the transferor’s original debt where Article 192 governs.

The file needs the original obligation, assignment terms, collection record and evidence of steps taken. A disagreement over the credited amount can involve the assignee’s conduct as well as the debtor’s financial condition. Article 192 should not be overlooked merely because the document uses the same assignment terminology as a sale.

Prepare the assignor claim as its own case

The demand should identify the paid transfer, relevant guarantee, alleged defect at transfer and each remedy sought under Article 193. Attach a clear schedule separating price, interest, transfer costs, unsuccessful collection costs and further loss. The evidence for the debtor claim remains relevant, but the defendant’s obligation in this dispute is the assignor’s.

Articles 146, 149 and 154 of the Code of Obligations require attention to limitation, commencement and interruption. The correct period and starting event depend on the actual claim and applicable rules. A continuing attempt to collect from the debtor should not be assumed to preserve every claim against the assignor automatically.

Where the action is a commercial monetary claim within its scope, Commercial Code Article 5/A requires pre-action mediation. The forum, any arbitration clause and the exact relief should be assessed before filing. The assignment’s written form does not decide those procedural questions by itself.

Check the law and forum of the purchase agreement

Article 24 of Law No. 5718 governs contractual choice of law and the connecting framework where no choice exists. The international-contract governing-law guide explains that inquiry. A Turkish debtor does not, alone, determine the law governing every warranty between a foreign buyer and the assignor.

Review the purchase contract and underlying debt documents together while keeping their obligations distinct. Prepare authenticated corporate authority and reliable translations for the relevant proceeding. The completed file should show who acquired what, what was paid, what failed at the legally relevant time and how the requested remedy follows from the applicable law.

Frequently asked questions

What does the assignor guarantee under Article 191?

For a transfer made for consideration, Article 191 guarantees the claim’s existence and the debtor’s solvency at transfer. The actual agreement and applicable legal regime must also be examined. The guarantee is distinct from the underlying debtor’s obligation to pay.

Does the same rule apply to a free transfer?

Article 191’s second paragraph states that, for a transfer without consideration or by operation of law, the assignor or former creditor is not responsible under that rule for existence or solvency. Any separate express undertaking requires its own analysis.

Does later insolvency automatically prove a warranty breach?

The statutory reference is solvency at the time of transfer. Later collection failure is evidence to assess, but it does not automatically establish the earlier financial condition. The buyer needs a dated record connecting the alleged inability to pay to the relevant time.

Can I claim the receivable’s full face value from its seller?

Article 193 first identifies return of the consideration actually performed with interest, followed by specified expenses and qualifying further loss. Face value and purchase price are different amounts. Any additional demand needs its own legal and evidentiary basis.

Are all collection costs recoverable automatically?

Article 193(3) concerns costs resulting from unsuccessful attempts to obtain the acquired claim from the debtor. The acts, costs and results must be documented and legally assessed. A budget or unsupported total does not establish the recoverable expense.

What is the rule for other losses?

Article 193(4) allows other loss unless the assignor proves absence of fault. The buyer must identify the loss and its connection to the relevant breach. The assignment-specific provision must be read with the applicable general contractual liability rules.

Must the assignor provide the original debt evidence?

Article 190 requires delivery of the debt instrument and other evidentiary documents in the assignor’s possession, together with information needed to assert the claim. Missing-document duties and the guarantee of existence are related but separate questions.

Does a non-recourse label remove every possible claim?

The complete risk-allocation clause and its validity must be examined. Article 115 prohibits an advance exclusion of liability for gross fault. A label alone does not resolve the scope of existence, solvency, disclosure or document-handover obligations.

How is a claim within a purchased portfolio calculated?

The consideration relevant to the affected receivable needs a supported allocation using the agreement and pricing records. Payments and security recoveries must be reconciled. Nominal face value should not automatically be treated as the allocated purchase price.

Does assigning a receivable towards another debt always discharge that debt at face value?

Article 192 provides a specific rule where the amount to be credited was not fixed: credit is based on what the assignee collected or could have collected with the required care. The original debt and collection record must therefore be examined separately.

Official legal sources

• Code of Obligations No. 6098 — Articles 112, 114, 115, 146, 149, 154, 184, 188, 189, 190, 191, 192, 193, 194
• Civil Procedure Code No. 6100 — Articles 219, 221
• Commercial Code No. 6102 — Articles 4, 5/A
• Private International and Procedural Law No. 5718 — Articles 24

The official Turkish legislation controls. The governing law, deadlines and procedural requirements must be assessed for the individual case.