Pursuant to Articles 18/1 and 64/1 of the Turkish Commercial Code, merchants are obliged to keep commercial books. The books to be kept by merchants are regulated under Article 64 of the TCC. The reason for this obligation is to reveal the economic and financial status of the commercial enterprise and the debt and receivable relations in the transactions related to the merchant’s business. Commercial books benefit both the merchant and the state. While the merchant has information about the financial status of his business through the books kept, the state pays attention to the books in the determination and collection of tax claims. In addition, commercial books are used as a very important proof in commercial disputes between parties.
What are the types of commercial books?
- General journal
- General ledger
- Inventory register
- Stock ledger
- Minute book
- General assembly meeting and negotiation book
Merchants must keep the general journal, general ledger, inventory register, which are related to the accounting of the commercial enterprise, as well as the stock ledger, minute book and general assembly meeting and negotiation book, which are not related to the accounting of the commercial enterprise. The books kept must be kept for 10 years.
What can be done in case of loss of books?
In the event that the books and documents that are obliged to be kept are lost or destroyed due to a disaster such as fire, flood or earthquake or theft, the merchant can request a “certificate of loss” from the competent court where his/her commercial enterprise is located within 30 days from the date he/she learns that the books are lost. This situation is regulated in Article 82/7 of the Turkish Commercial Code.
In the event that the books are damaged or completely destroyed as a result of force majeure, the merchant may be relieved of the liabilities arising from the failure to submit the books and documents with a “certificate of loss”. In the doctrine, in order for the certificate of loss to be given, it is required that it is not a situation arising from the fault of the merchant and that the event occurs despite taking all the measures expected from a prudent merchant.
Case for Loss of Commercial Books
In the event that the commercial books are lost and damaged as a result of the events under the previous paragraph, the merchant must apply to the competent and authorized court and request a certificate of loss. The merchant must make this application in person. The lawsuits filed by the company lawyer or accountant will be rejected due to the lack of cause of action. The lawsuit shall be filed uncontested i.e. there shall be no defendant. The lawsuit must be filed within 30 days from the date of the loss or damage of the commercial books. If the lawsuit is filed after this period, the lawsuit will be rejected.
What are the requirements for obtaining a certificate of loss?
- The person filing a lawsuit for a certificate of loss must be obliged to keep and store the commercial books.
- The books must not be new and empty.
- The books must be lost or damaged as a result of force majeure.
- The books must have been duly kept by the merchant.
- The lawsuit must be filed within the 30-day prescriptive period.
What is the competent and authorized court in case of loss of commercial books?
The competent and authorized court is the Commercial Court of First Instance where the commercial enterprise is located. For example, if the business is located in Maslak, the lawsuit should be filed in İstanbul Commercial Court of First Instance.
As explained in detail above, in case of loss or damage to the commercial books, the merchant must file a lawsuit at the Commercial Court of First Instance where the commercial enterprise is located. In order to file a lawsuit, you will need to explain your situation regarding the loss of the books with a petition.
TO THE JUDGE OF THE …. COMMERCIAL
COURT OF FIRST INSTANCE ON DUTY
DEFENDANT : Uncontested
SUBJECT : It consists of a request to issue a certificate of loss to us due to the loss of our company’s commercial books as a result of force majeure on …/…/… date.
The commercial enterprise of the client with the trade name …….., trade registry number ….., located in …………, was flooded / destroyed / burned due to the flood disaster / fire / flood / earthquake etc. on …/…/…. . Due to the aforementioned disaster, all commercial books, invoices, tax documents and all kinds of documents and papers related to the commercial enterprise were lost/damaged. The police/fire department was called upon the relevant incident and the units arrived at the business on the same date. As a result of this incident, all documents in the commercial enterprise have become unusable. A list of the official documents and commercial books that have become unusable has been made and submitted to the court (ATTACHMENT 1). Photographs and official documents showing that the enterprise was damaged as a result of the incident are attached to our petition. (ATTACHMENT 2)
(In this section, detailed explanations about the incident should be made and existing evidence should be attached)
Article 82 of the Turkish Commercial Code No. 6102 titled ” keeping of documents, retention period” reads as follows:
“If the books and documents that a merchant is obliged to keep are lost due to a disaster such as fire, flood or earthquake or theft and within the legal retention period, the merchant may request a document from the competent court where his commercial enterprise is located within thirty days from the date he learned of the loss.” is stated in the article.
Since all official documents and books in the commercial enterprise and presented in Attachment 1 have been lost due to this flood / fire / earthquake, it has become necessary to request your honorable court to issue a certificate of loss to us that the relevant documents and books have been lost in accordance with Article / d-7 of the Turkish Commercial Code.
CAUSE OF ACTIONS : Relevant articles of Turkish Commercial Code
LEGAL EVIDENCE : Expert, discovery, witnesses, police reports, photographs, all kinds of legal and discretionary evidence
REQUESt : For the reasons explained above and which the honorable court will consider ex officio, we respectfully request that the certificate of loss of the commercial books of the client company be issued.
Attorney of the Plaintiff:
ATTACHMENT 1 –
ATTACHMENT 2 –