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BANKS BE A TRUST INSTITUTIONS AND ITS REFLECTION ON BANKS' RESPONSIBILITY

Banks are the trusted part of banking transactions as trust institutions. Due to this confidential relationship between the bank and the customer deposits the money he has in a bank that she trusts to keep it safe and repay it whenever he wants. To establish this trust, banks operate under state control and supervision at every stage, starting from their establishment.

Regulations such as seeking special permission to collect deposits or open branches, restricting the use of the collected deposits as loans, subjecting share transfers to permission, and supervision of bank activities by the BRSA also aim to make banks trust institutions. In this respect, the bank must not fail this trust by item 2 of the Civil Code and act prudently within the framework of item 20 of the Turkish Commercial Code and be cautious at every stage of the deposit transactions from the opening of the account to the closing.

The purpose of bank legislation; on the one hand, is to protect the depositors, on the other hand, to preserve and maintain the trust placed in banks as an institution.

There are five main reasons for private trust in banks. These;

- Banks undertake debts arising from their legal relations to perform a profession. For this reason, experience and knowledge bring confidence.

- Banks operate based on license. This situation causes banks to be perceived as experts with sufficient experience and knowledge to perform contracts reliably and appropriately.

- Since banks work under the supervision and control of the state will not allow banks to make transactions contrary to the rules of good faith.

- Because banks confront customers with standard contracts, "Since you trust others, I can trust you, too" psychological state.

- In a sense, banks are defined as institutions that have public trust because they perform public services.

The Supreme Court has also described banks as trust institutions in many of its decisions. Banks, with the feelings of trust and life of depositors, constitute an important part of the society; moreover, they stated that they are closely related to the order of the society and legal security.

The fact that the bank is an institution of trust creates some changes in the debts and the extent of the responsibility of the bank, which is the trusted party in legal transactions. Banks have to act with objective care while meeting their obligations. For this reason, banks are liable even for their slight faults as a requirement of their

objective duty of care. The legislator has specified some responsibilities of banks, which are trust institutions, as strict liability.

With the decision of the Court of Cassation Law Board numbered E. 94/178, K.94/398, T. 15.06.1994, this situation is stated as follows;

The responsibility stipulated in article 724 of the Turkish Commercial Code is a flawless and legal responsibility for the addressee. If the drawee is defective but the addressee is faultless, the addressee is not responsible. That is, if neither party is at fault, the bank cannot escape the responsibility of paying the forged or falsified check. For liability to arise, it is sufficient to have a causal link between the violation of the obligation of objective care and the damage. Concerning item 1 of the Türkish Code of Commerce and the reference item 98 of the Türkish Code of Commerce, the drawer's defect must be considered by item 44 of the BK. In case of mutual fault, the parties will have to bear the loss in proportion to their faults. If the bank has shown the necessary care to avoid liability as an employee, it must also prove that the loss will occur. Banks, which are trust institutions, have to carefully protect the deposits they receive against counterfeiters. For this reason, they are responsible for even their slight faults. Whether the forgery is convincing or not, whether there is the ability to seduce or not is not counted among the legal elements.

The Supreme Court accepts in many different decisions that the responsibility of banks should be aggravated due to private trust.

Collecting deposits without transferring them to the bank records (Y. 11. HD, T. 13.02.1995 E. 1994/7563, K. 1995/1127) Since the defendant bank is a trust institution, this responsibility is due to the legal authority rules that the authorized person has against third parties. must stay in. In this case, the responsibility of the bank must be accepted over the current interest rates applied by the defendant bank from the deposit account accepted on behalf of the bank without transferring it to the bank records by abusing the bank official's duty. It is not considered correct to rely on interest rates that have no legal basis in the passbook exceeding these rates. Since the basic relationship of the plaintiff with the bank is accepted, the defendant's request that the transfer transaction is not legal was also not deemed appropriate.

However, the Türkish Code of Obligations item There are exceptions to this situation in 582/2. According to this; The original debt is invalid due to the incompetence of the debtor and can be canceled and rendered invalid within one year due to a fundamental mistake. The person who becomes the surety, knowing that the main debt is time-barred, will be liable by the provisions of the suretyship.

As a result, banks operate under strict state control and strict rules. Created a perception that they are reliable in the eyes of society and made banks trust institutions. This situation has led to the aggravation of its responsibilities, as indicated by the decisions of the Supreme Court.

SOURCE

Kaplan, İbrahim, Bank Contract Law, Ankara 2020

Rüzgar, Yurdagül, Legislation, Evaluation of Timeout in Deposit in the Light of Supreme Court Decisions and Doctrine, Legal Consequences of Non-Return of Deposit, Bankers Magazine, Issue 63,2007

Yılmaz, Süleyman, Legal Perspective of Internet Banking, Ankara University Institute of Social Sciences Private Law (Civil Law) Department Doctorate Thesis.