The Crime of Breach of Commitment is regulated in Article 340 of the Enforcement and Bankruptcy Law. Pursuant to the Article, “The debtor who violates the condition of payment of the debt agreed upon in the enforcement office pursuant to Article 111 or with the consent of the creditor, without a reasonable cause, shall be sentenced, upon the creditor's complaint, to compulsory imprisonment for up to three months. If the debtor pays the full amount of the debt or the amount he is obliged to deposit in the execution office until that date, he shall be released; if he ceases to pay again, the order of compulsory imprisonment shall be reissued. However, the duration of compulsory imprisonment for a debt cannot exceed three months.”

The proper drafting of the commitment agreement is very important for the creditor to avoid any loss of rights. While it is a condition of validity that the commitment agreement must be in writing, in practice, even in cases where there is no provision in the law, the decisions of the Court of Cassation, which attribute too much meaning to formalism, put the creditor in a victimized position and sometimes it becomes difficult for him to obtain his receivables.

In the decision of the 12th Civil Chamber of the Court of Cassation numbered 2021/3151 E., 2021/4095 K. “........ According to the scope of the file, Article 340 of the Law No. 2004. Pursuant to Article 340 of the Law No. 2004, in order for the offense of violation of the commitment to occur, the total amount of debt, the interest that has been and will be processed, the attorney fee, execution fees and expenses should be determined together and the amount based on the debtor's commitment should be clearly shown, in the commitment letter received on 14/10/2019, the bar stamp fee was shown as an expense even though there was no execution expense, Therefore, since it is understood that the commitment given by the debtor is not valid, it was not deemed inappropriate to decide to reject the objection in writing without considering that the objection should be accepted since the elements of the crime attributed to the defendant did not occur. Pursuant to Article 309 of the Criminal Procedure Law No. 5271, the necessity was discussed and considered:

Since the content of the notification of the Chief Public Prosecutor's Office of the Court of Cassation based on the request for reversal for the benefit of the law is deemed appropriate.......... The decision numbered 309/4-d of the Code of Criminal Procedure shall be REVERSED in accordance with Article 309/4-d of the Code of Criminal Procedure, and the restraint imprisonment imposed on the defendant for the act of violating the payment condition shall be abolished, to be decided unanimously on 06/04/2021In the decision regarding the invalidity of the commitment, too much meaning was attributed to the form and the invalidity of the commitment was concluded. This situation brings negative consequences for the creditor. The commitment agreement signed with the agreement of the debtor and the creditor is actually a logical way for both parties. The purpose of the contract is not to penalize the debtor with the compulsory imprisonment, but to pay his debt more comfortably and to ensure that the creditor receives his receivables. However, the negative decisions of the Court of Cassation in this direction victimizes the creditor and indirectly the debtor. 

What is a Commitment Agreement?

The commitment agreement is the written promise of the creditor and the debtor to come together before the execution manager and promise that the debtor will pay the debt regularly and in installments. When the debtor does not fulfill these contractual obligations before the enforcement director, the 'Crime of Breach of Commitment' occurs.

What are the Elements of the Crime of Breach of Commitment?

1. There must be a valid and finalized enforcement proceeding.
2. There must be a commitment to pay the debt in installments.
3. In the payment commitment, the amount of the debt must be clearly shown together with all its accessories.
4. The commitment must be made in front of the authorized officer or authorized executive director and the minutes must be signed by one of them. 
5. The creditor's claim must be a money debt.
6. The debtor must have failed to fulfill the payment commitment without a justifiable reason.

What is the Complaint and Statute of Limitations?

A lawsuit for breach of undertaking must be filed within three months from the date of learning of the offense and in any case within one year from the date of the offense.

What is the Penalty for Breach of Commitment?

According to the EBL, the penalty for the debtor who has entered into a contract of commitment and fails to make or delay payments without any justifiable reason is a penalty of restraint imprisonment for up to three months. For the same debt, more than three months of restraint imprisonment cannot be imposed. If the debtor pays the entire debt or the part of the debt that he/she has to pay until then, he/she will be released immediately. If the debtor fails to pay the debt again, he/she shall be sentenced again to compulsory imprisonment.