Failure Of Cancellation of The Missing Card Which Reported To the Bank

23 Aug Failure Of Cancellation of The Missing Card Which Reported To the Bank

After the person loses his / her bank card, he / she must report the situation to the bank. The bank must then cancel the card and take measures to protect the person’s material and spiritual presence on the card. Although the person informs the bank that he is missing, the losses that will occur as a result of continuing to shop with the card are charged to both the bank and the owner of the workplace where the pos device is located. Because the person has transmitted the status of the lost or stolen card to the necessary places. You can examine the sample text.

General Assembly Of Law

Base Number: 2017/2850

Decision Number: 2019/154

“Case Law Text”

Court :Consumer Court

At the end of the trial due to the “compensation” case between the parties, Istanbul 3.Dec. Dated 20.06.2013, 2009/1019 E. issued by the Consumer Court on the partial acceptance of the claim for material compensation and the rejection of the claim for moral compensation., 2013/688 K. Decision No. 13 of the Supreme Court on the appeal of the attorney of the plaintiff and the defendants … and the attorney of Murat Dogan. Law Department dated 12.06.2014, 2013/32840 E., 2014/18798 K. by numbered decision;
“…The plaintiff, the defendant 14.03.2005 from the Bank of the credit card was stolen while you’re traveling in the van, then the defendant and the situation in writing to the bank by phone at the hour 14.43 credit card, reporting …with the defendant’s run …from the nuts of the nature of the defendant before the defendant had been made because the shopping is done 4.000 TL notification that reported that the bank could not meet this amount, the defendant undertaking responsibility of the Bank of the credit card theft and you’d only 750 TL even though it is not a flaw in the use 3.275-TL, the defendant had to pay to the bank, claiming that the other defendant …was tried in the criminal court and punished for fraud because of this action, the defendants had joint and fiduciary responsibility,and asked that a total of 3,420, 30-TL and 5,000-TL moral compensation, including the cost of warning, be jointly and severally collected from the defendants.
The defendant bank stated that the transaction took place at 14.39 am, 4 minutes before the plaintiff’s notice, the 19th of the contract. he dismissed the case, arguing that he had no responsibility for the expenses before the notice reached the bank.
The defendant … and Murat Dogan asked for the dismissal of the case, arguing that it was a routine exchange, that they had no flaws, that the plaintiff was responsible for not carefully hiding his credit card.
By the court, the defendant in a case against the bank, denial, and with the acceptance of the case against the other defendants Murat Dogan partial 1.645,30-TL interest accruals together with interest from the date of the lawsuit the defendants, jointly and severally taken, and given to the plaintiff to be more prompt and non-pecuniary damages, it was decided to refuse the request for judgment, the plaintiff and the defendants and was appealed by Murat Dogan.
1-due to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular the lack of a hit in the discretion of the lunatics, the defendants … and Murat Dogan all other appeals that fall outside the scope of the plaintiff’s following Bend should be rejected.
2-the credit card of the plaintiff, in violation of the law asserts that the expenditure is not responsible for the use by third parties due to the defendant’s due diligence in the protection and storage of passwords, credit card information and has not been shown, stating that the bank is not responsible for stolen incurred prior to the notice, the plaintiff argued that the expenditure must be responsible. Akbank Axess credit card, of which the plaintiff is the owner, was stolen on 14.03.2005, the defendant notified the defendant of the theft at 14.43, and the subject of the case is fixed with the scope of the file, where the 4,000-TL purchase was made at 14.39.
In order to resolve the dispute between the parties, the provisions of the “bank cards and credit cards Law”No. 5464 must be decried.
15, titled “obligations of cardholders”. “the responsibility arising from the use of the card belongs to the card bearer from the moment the contract is signed and the card is passed to his possession or the card number, which does not have a physical presence, is learned.”
Entitled “notification obligation”, 16. “if the card holder requires the use of a code number, password or other method of identifying the card deposited with him, the card holder must immediately notify the card issuer if he finds out about the loss, theft or any transaction that occurred against his will.”
12, titled” unfair use and insurance of the card.” “if the card or the information referred to in Article 16 is lost or stolen, the card holder is liable for damages arising from illegal use that occurred within twenty-four hours before the notification that he will make, limited to the new Turkish Lira. This limit does not apply in cases where illegal use is based on gross negligence or caste of the holder or if the notification is not made.”there are provisions.
Again, the credit card agreement between the parties, 19 Dec. “if the credit card is lost, stolen or corrupted in such a way that it cannot be used, the member or additional card holder is obliged to immediately notify the bank by phone and then confirm October in writing. Notice of this credit card, password or credit card number using an additional card members belongs to the holder all liability arising from transactions and the notification of the credit card receipt from the bank to the bank to be deactivated is required for domestic and overseas after a reasonable period of your credit card for use with 3. members and additional card holders cannot be held responsible for transactions to be performed by persons October.”the arrangement is available.
As can be seen, the credit card holder is obliged to protect and store the credit card deposited with him in accordance with the said law from the moment he signs a contract with the bank and the card passes into his possession, as well as the information related to the use of this card. However, in accordance with law 5464, the credit card or in the event of loss or theft of this information is liable for damages arising from illegal use that occur within twenty-four hours before the notification to the bank, unless there is gross negligence or November intent, limited to one hundred new Turkish Lira. 12 of the law in this case. the substance must be evaluated according to the characteristics of each concrete event. In a concrete case, it is understood that the plaintiff fulfilled his obligation to notify the defendant bank, that the $ 4,000 purchase made 4 minutes before the notification was made by signing the slip, and that the signature on the slip did not belong to the plaintiff. It cannot be said that this illegal expenditure was based on gross negligence and caste of the plaintiff. Because the plaintiff stole his card while traveling in the van, and there is no claim or evidence in the file that there was negligence that would facilitate the theft of the card. According to the usual course of life, it is not possible for the plaintiff to check his credit card by constantly opening his wallet while traveling in the van. Again, the exchange is made with a signature thrown into the slip, as well as the plaintiff’s password, etc. it also shows that it protects its information securely. As such, the plaintiff’s Law No. 5464 is 12. according to the article, The Bank must accept that it is liable for damages caused by this illegal use, which occurred within twenty-four hours before notification, limited to one hundred new Turkish Lira. Other defendants cannot be prosecuted against the plaintiff on the grounds described. The court decided to dismiss the case from the bank’s point of view in writing on the grounds that the plaintiff’s password was reached in a short time by misjudgment and contrary considerations, the password was not selected or stored securely, the plaintiff did not check whether the card was in his wallet, he allowed the card to be stolen by carelessness, so it was severely defective, and the ½ percent discount from the other defendants is against the procedure and law and is the cause of violation…”
at the end of the retrial, which was overturned on the grounds that the file was rejected instead, the court resisted the previous decision.

Appellants: 1-acting plaintiff
2-defendants … and Murat Dogan’s deputy

DECISION OF THE GENERAL ASSEMBLY OF LAW

The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the documents in the file were read, the requirement was discussed:
The case is about a claim for damages.
The plaintiff’s Attorney, his client owned by Akbank Axess credit card on 14.03.2005 time 14:00-14:30 trucker highway between Ankara-Maltepe between the path it was stolen while travelling in the van, as soon as we became aware of the situation, the situation 14:43 at the bank reported reported stolen in the same order that the defendant …’s owned by the other defendant …’s run 4.000 TL Icerenkoy arising from the nuts of the shopping is done, in spite of this, only 750tl that are undertaken by the bank and the balance of the expenditure will be paid by the client in the event, if it stays from the defendant …’s Kadıkoy 2. By the decision of the Heavy Criminal Court dated 24.11.2005, he received a conviction for fraud by passing the unfairly seized credit card through the pos device at work and editing fake documents such as shopping, the defendant also know to be stolen bank card spending unfair that people who commit crimes like it had never been reported stolen, arguing that failing to refrain from paying compensation to be paid is flawed and is responsible with the money that was 5,000 to 40% of total compensation of protest and deny 145,30 TL 3.420 with a cost of $ 30 to monetary damages from the defendant’s decision to demand and the collection has prosecuted jointly and severally.
A bank representative of the defendant, the plaintiff’s credit card was defective in failing to use caution and care falling on the enclosure that the client was informed of the operation that was born after the bank’s responsibility stolen, involved in the case of the process of the statement made that was made 14.43 4 minutes ago stolen from time, therefore, the bank is the card holder as a sign of good faith, no responsibility of any damage 750tl meets the client involved in the case of a member that is not a business contract with the bank, the workplace, pos device belongs to another bank, he demanded that the case be decried, arguing that there could be no situation such as blocking or not paying to the relevant bank in transactions with an open card, taking authority within the framework of interbank rules, and that there were no conditions for moral compensation.
If the defendant … and … his attorney; if criminal proceedings has yet to be finalized their client’s on the date of the event, whether it is in the shop, even if it could be proven, in spite of this, based on slander and honor by playing with the penalty that was given, and the exchange was made at the same time to a liquor store where the shop is, therefore, always extraordinary days, this especially at work, celebrations, restaurant, or drunk on the demands of the high-profile purchases are made, if the monopoly of such exchanges is shopping for a dealer, this work is necessarily done on purchases made at identity checks, however, that in the face of malicious people, always not enough control, you can get out of almost every PoS machines with similar problems in the workplace, the card is flawed as it should instead of failing the task of getting that plaintiff’s retention of 40% compensation of the request for the case at hand in terms of that has a place in the law, non-pecuniary damages argued whether the conditions for.
The court said that the bank’s liability may arise only in terms of transactions to be made after the card has been reported stolen, that the cardholder is severely defective due to the failure to fulfill the obligation to protect the card properly, so the bank cards and credit cards Law No. 5464 No. 12. considering that the defendant bank has undertaken 750tl in terms of transactions that took place in the last twenty-four hours before the stolen notification, as it cannot benefit from the regulation in the article, the claim must be rejected from the point of view of the defendant bank, in the assessment made from the point of view of other defendants; member businesses, especially doing an ID check by making purchases with a stolen credit card because they give rise to their responsibilities should be accepted, however, that plaintiff’s own negligence for allowing the enclosure to be stolen due to the card where it is located and in the event of a defect, therefore, the damage would be in place of folding in half for the defendant on the grounds that he is a real person with partial acceptance of claim financial compensation from wool 1.645 of £ 30 collection of this defendant, as conditions did not occur, it was decided to reject the request for moral compensation and claims for excess.
On the appeal of the attorney of the plaintiff, the defendants … and the attorney of Murat Dogan, the provision was broken by the special department with the reasons written in the title of the decision above.
Against the decision to overturn, the Local Court decided to resist by repeating the grounds of the initial decision.
The decision to resist was appealed by the attorney of the plaintiff and the defendants … and the attorney of Murat Dogan.
I-defendants by The Local Court … and all appeals put forward by these defendants against the decision that Murat Dogan had defects and responsibilities in the case, as well as appeals of the attorney of the plaintiff for moral compensation and 40% denial compensation rejected by the court, were rejected in the first paragraph of the decision to decry the private office above, so the parts of the first provision were finalized from the point of view of the parties, and these issues were not a dispute between the Local Court and the private apartment.
In this case, it was necessary to decide whether the defendant … and Murat Dogan’s attorney should reject all appeals other than the plaintiff’s attorney’s following bent due to lack of legal benefit.
II – above the plaintiff’s attorney (I). review of Appeals other than those shown in the bent:
Dispute before the General Assembly of law through resistance; using stolen credit card belonging to the plaintiff in the case out of the hands of the bank’s responsibility to pay 750tl has undertaken outside the presence of the defendant, moreover, a defect of the existence of competing with the other defendants and the plaintiff cannot be accepted Murat Dogan, here is the result to be reached, according to the Local Court for financial compensation from the direction of the Defendant Bank all the request denial, with regard to the other defendants, the plaintiff is present at a rate of compensation to bet that half of the fault of the decision by downloading in place at the point of whether they are collected.
In the settlement of the dispute, it would be useful to examine the distribution of liability for damages arising in the event of unlawful use of the credit card by a third party separately from the point of view of the parties to the case.
The number and spending of credit card users in our country has been increasing since 1987. Despite this, the first legal regulation on credit cards in our law was made with Article 10/A, which was added to the Law No. 4822 in 2003 to the Law No. 4077 on Consumer Protection. But this regulation is only intended to protect the consumer due to credit cards and is related to consumer loans, that is, it is a limited scope of regulation and does not contain any provisions related to the point of resistance.
Debit and credit cards, smart card system, the establishment, operation, card parties, the relationship of the parties rights and responsibilities yukumluk with the formation of a legal infrastructure that enables holistic control of the system, however, 5464 into force 01.03.2006 the “bank cards and credit cards Law” (BKKK) has been made with (Bahtiyar, M.: Legal liability for unfair use of the card according to the bank cards and credit cards Act, IUHFM C.LXXI, P.2, p.71, access: http://dergipark….tr/download/article-file/97826).
12 of the said law entitled “unfair use and insurance of the card”. according to the article, if the card is lost or stolen, the card holder may be held liable for damages caused by illegal use that occur within twenty-four hours before the notification; if the illegal use is based on the gross negligence or intent of the holder, or if the notification is not made, the responsibility will belong to the card holder.
In the period before the entry into force of Bkkk No. 5464, since there is no regulation in consumer law on this issue, the settlement of disputes arising from the unfair use of credit cards is only possible within the framework of the general provisions in commercial law and debt law.
When the legal responsibilities of the banks are examined, limited by this framework and the point of dispute;
Banks are organizations that are under the Intensive Supervision and intervention of the state, subject to a license and can operate on condition that they comply with the special principles established for them. This particular situation in the banking sector leads to the large masses of people who deal with banks to have a special sense of trust in banks. As long as it is legally worth protecting, this trust requires banks to be subject to different rules of civil liability from other commercial enterprises and classic types of companies (Battal, a.: Legal responsibility of banks in the light of the qualification of the trust institution, Ankara 2001, p. 1).
Because of this trust in the public, banks are responsible for the obligation of an ordinary trader to act prudently in the transactions they perform (Turkish Commercial Code No. 6762, m.20/2) they are under a debt of more qualified care.

As a matter of fact, 99 of the Code of Obligations (BK) No. 818, which must be applied in the dispute as of the effective date. Article 115 of the Turkish Code of Obligations (TBK) No. 6098, which entered into force later. considering the regulation in its article, banks may be responsible for even the mildest defects in the services they offer, as their activities are subject to licensing and require expertise.
One of the services provided by banks can be defined as ” a payment and credit tool that allows the cardholder to purchase goods and services without paying cash from certain businesses and to withdraw loans from bank branches and automatic withdrawal devices “” Yilmaz, E.: Credit card application and economic effects in Turkey, Istanbul 2000, p.124) are credit cards.
As part of the legal relationship in the nature of the framework contract, which creates a continuous debt relationship between the bank and the cardholder, the cardholder, the bank and the owner of the pos device in which the credit card is traded fall into a number of obligations decisively.
In particular, credit card agreements between the customer and the card issuer are an atypical business contract that includes part work, part Service, and part power of attorney (Atamer, M. Dec. Y.: Who Will Bear The Losses Incurred If The Credit Card Is Illegally Used By A Third Party?, Law In Information Society-Gift To Unal Tekinalp, Istanbul 2003, C.1, p. 1002)and 386. because of the rule contained in the second paragraph of the article that the provisions of the power of attorney will apply to contracts related to business activities that are not explicitly regulated in the law, the basis of the contractual responsibilities of banks in established practice is evaluated within the framework of the provisions of the power of Attorney agreement in many disputes.
At this point, it is useful to briefly mention the nature of the power of Attorney contract.
“Power of Attorney agreement”, one of the debt-generating contracts, is an agreement in Article 386/1 of the Code of Obligations (BK) No. 818, which must be applied in dispute as of the effective date, stating: “power of attorney is an agreement in which the power of attorney defends the management of the work estimated by him in the contract office or the performance of the service that he performs takabbul.”it is defined as.
As can be understood from this definition, the elements of the power of Attorney contract can be sorted in the form of the power of attorney to assume the duty of work, to fulfill the duty of work in accordance with the interests of someone else and his will, to assume the act of work, not the result of work, and to act independently in fulfilling the duty of work, and although it is not mandatory, to decide the fee for this work.
In addition, one of the most important debts of the proxy in proxy contracts, the basis of which is based on the principle of trust, is the debt of loyalty.
Loyalty, care and secret storage debt are regulated in Article 390/2 of the BC; in the article “the proxy is a taxpayer with a good performance of the power of attorney against the client.” he is called.
A debt of loyalty can be deduced from the fact that the proxy sees a job that belongs to someone else, not him, and that the person with whom he sees his job acts in accordance with his interests and will is a mandatory element of the power of attorney. In accordance with this debt, both during the continuation of the power of attorney and after the termination of the power of Attorney relationship, the proxy is obliged to protect and protect the client’s benefit in accordance with the purpose of the contract. Because of this debt, the surrogate must always act in the best interests of the client and direct his behavior according to the results that the client wants to achieve with this contract.
In other words, in accordance with the debt of surrogate loyalty, he is obliged to engage in behavior that will benefit his client and avoid behavior that will harm him. Loyalty debt is again mandatory, although there is no clear provision in the contract on how to perform power of attorney, and his client has no instructions.
Indeed, a concrete dispute in this context, in order to prevent the unlawful use of credit card by a third party, the member liabilities careful of falling into the workplace and the card issuer in addition to the protection and preservation of the card the cardholder, the card is aware of the misuse of certain liabilities from the moment you notify the bank in the shortest period of time will decrease, and otherwise care who do not uphold contractual debt, it is clear that you will be liable for any damages arising out of the card holder.
If the cardholder has no fault in the fact that the card falls into the hands of malicious persons, the risk of illegal use arises from the card issuing organizations (Atamer, P.1019). In the face of the fact that the credit card system is a system that is extremely open to abuse, in fact, since the cardholder customer does not have the will to pay to a third party on the occasion of the use of the stolen credit card, banks enter into contracts with general transaction conditions that completely assign this risk to the customer; in this way, if the already weak party of the contract is immeasurably victimized and a deviation is detected that violates the fairness of the contract, it will be necessary to recognize that the relevant contract provision is superstitious due to a violation of public order.
At this point, in order for the claimant’s defect status to be discussed, the nature of the crime in which he is the victim must be revealed.
File: Kadıkoy 2. 2005/220 numbered based on the heavy penal court documents related to the criminal case of the plaintiff on the date of the consumer as a victim of theft rides public transportation vehicles in the event your wallet is stolen, or even in the same vehicle at the same time another person is victimized in a similar way to a credit card that belongs to him and fake a signature from an exchange and Murat Dogan defendants also operated shop with the perpetrator of the crime of larceny is used, but remains unknown, committed the crime of burglary because acquitted due to a lack of evidence about shows that given, it is understood that the public case was dropped on the charges of fraud by making the bank a vehicle for theft and a court conviction, which expired at the appeal stage.
141 of the Turkish Penal Code (TCK) No. 5237. Article 142 of the same law, which accepts the receipt of a movable property belonging to someone else without the consent of the bell from where it is located for the purpose of benefiting him or someone else, as the main form of the crime of theft. Article 2. in Paragraph (b) of the paragraph; the crime is committed by pulling out the item carried in the hand or on top or with special skill, depending on the sanction as a qualified theft offense, if in the last sentence of the same paragraph; (B) he considered the aggravating reason for the punishment to be committed against a person who cannot defend himself in terms of body or soul.
In the teaching, it is stated that the acts of grabbing and pickpocketing performed with special skill on the person are sanctioned, but the text of the law does not include the expressions of grabbing and pickpocketing (Centel, N./ Win, H./ Cakmut, O.; Crimes Against Persons, 2017, p. 312 et al.).
As this is not regulated separately in TCK No. 765, which is in force as of the date of the crime, the action is 491 of the same law. Article 1. it has been evaluated within the scope of the paragraph.
As a matter of fact, these matters are dated 16.01.2018 of the criminal General Assembly of the Supreme Court, 2017/13-588 E., 2018/6 K. it is also explained in his numbered decision.
In the light of all these explanations, when the concrete event is evaluated;
According to the legal regulations described and the way the concrete event occurred, there is no evidence reflected in the scope of the file that the plaintiff was a defective act of the consumer in the storage and storage of the card, and the plaintiff immediately notified the bank as soon as he became aware of the situation and fulfilled his responsibility in this respect. In this case, there are no defects attributable to the plaintiff in the realized loss. In this case, it is against the law to make a decision to resist in writing, when it is necessary to comply with the decision of the private apartment pointing in this direction, and it requires that the provision be violated in this direction.
In addition, since law 5464, which entered into force after the date of the incident in which the dispute arose, cannot be applied to a specific event, October 12 of the law referred to in terms of the Defendant Bank of the Special Agency. although the decision to overturn the clause should be taken into account is not a hit; in an event where it is understood that a fairly high amount of purchases were made only by Signature and according to the card usage habits of the plaintiff consumer, within the framework of the principles described in detail above, as of the date of the event, the bank was not sufficient according to the conditions of that day, it is also illegal for the plaintiff to decide whether he uses a system with security weaknesses with the ingenuity of expert experts and to decide according to the result, while the plaintiff is considered severely defective and the defendant is not responsible for the bank and to refuse the claim for financial compensation from the Bank’s point of view.

As a result, the decision to resist should be violated with this different justification.
C O U N s: the above (I) for reasons that are described in the numbered paragraphs, defendants and attorneys Murat Dogan, all of the plaintiff’s Attorney (II) absence of legal appeals denial of the benefit outside the scope of the poet bent on appeal, the plaintiff attorney (II) numbered paragraphs that are described in the adoption of various reasons and the reasons to resist the appeal of the plaintiff’s attorney and the defendant appeals the decision of the decision for reasons of private Dogan Murat shown in the circle in terms of the defendant and the reasons for various reasons that are described in terms of the bank 6100) 3 of the code of civil procedure is temporary. according to Article 429 of the Civil Procedure Code No. 1086. according to Article 440/III-1 of the same law. in accordance with the article, a final decision was made by unanimous decision on 14.02.2019, with the path of Correction of the decision being closed.