Loss Beyond Margin in Leveraged Gold Trading: Cassation 2024/2251

Savun Law & Consultancy · Updated 13 November 2026

A position of 3,250 lots of ounce gold, opened within twenty-two minutes, is more than USD 1.5 million in profit once the purchase is complete. A few hours later the gold price falls, automatic closure is triggered and the account drops to a balance of -916,634 USD. Relying on the rule in the leveraged trading regulations that a client must not be made to lose more than the margin deposited, the investor asks for this amount back from the brokerage. The court of first instance finds the investor right; the court of appeal reaches the opposite result.

The Court of Cassation 11th Civil Chamber, by its decision of 20.03.2024, Docket No. (E.) 2023/348, Decision No. (K.) 2024/2251, after a hearing, unanimously upheld the decision of the Istanbul Regional Court of Appeal 12th Civil Chamber, which had dismissed the claim.

In short: An investor working in the jewellery trade opened a buy position of 3,250 lots of ounce gold with 1:100 leverage on 29.10.2013; when the price fell, the account went into a negative balance. Relying on Article 12/1-d of the Capital Markets Board (SPK) Communiqué Series: V, No: 125 on leveraged transactions, the investor claimed USD 916,634. The court of first instance accepted the claim; the regional court of appeal dismissed it, stating that there was sufficient margin in the account at the time of the transaction, that the loss arose from the fall in price, and that the margin top-up payments were made voluntarily. The Court of Cassation upheld this decision.

How the article runs

3,250 lots in twenty-two minutes
The rule relied on: the ban on loss beyond margin
First instance: the brokerage did not set up the infrastructure
Appeal: the margin was sufficient, the payments were voluntary
The assignees' appeal and the affirmation
Notable aspects of the decision
Questions and answers

⏱️ 3,250 Lots in Twenty-Two Minutes

The parties have a leveraged trading agreement dated 02.05.2012. According to the findings of the regional court of appeal, on 29.10.2013, between 04:00:49 and 04:23:03, the investor opened a buy position in ounce gold (XAUUSD) totalling 3,250 lots, in orders of 50 lots each, at a leverage ratio of 1:100. The average cost was 1,356.278 USD and the total trade size was 440,790,319.45 USD.

The margin required for a trade of this size was calculated as 4,407,903.19 USD; at the time of the trade, the account was found to hold a balance greater than this amount, including the profit generated by the positions. The gold price then fell in overseas markets; the margin dropped to a risky level, the investor neither topped up the margin nor reduced the positions, and the automatic closure system was triggered. As a result the account fell to a balance of -916,634.00 USD.

According to the statement of claim, this negative balance was collected from the investor and was not returned despite a notice. The investor first filed the case for 1,000 USD and then, by an amendment of the claim, raised the demand to 916,634.00 USD. The receivable was assigned during the proceedings; at the appeal stage the case was continued by the claimants who received the assignment.

📏 The Rule Relied On: The Ban on Loss Beyond Margin

The claimant side's main basis is Article 12/1-d of the SPK Communiqué Series: V, No: 125 of 27.08.2011 on the Principles Concerning Leveraged Trading Transactions and the Institutions That May Carry Out These Transactions. The decision text reports this provision as "clients shall not be made to trade in a way that would cause a loss above the margin amounts deposited". The claimant also noted that Article 19/1-d of the new Communiqué published on 11.07.2013, which repealed Communiqué No. 125, points in the same direction.

The claimant further argued that, according to Article 12.3 of the special terms of the agreement, it was undisputed between the parties that a trade is not permitted if the total margin required for the asset type to be traded is insufficient.

The brokerage, for its part, argued that the claimant was an investor who made large, high-risk trades, that the margin level was sufficient at the time of the 3,250-lot purchase, that it was not at fault for the negative balance, and that the amount in dispute was paid by the client of his own free will.

🏢 First Instance: The Brokerage Did Not Set Up the Infrastructure

The Istanbul 12th Commercial Court of First Instance (2017/692 E., 2019/1073 K.) accepted the claim. The main lines of its reasoning are as follows:

Given that the closure took place on 29.10.2013, the provisions of Communiqué No. 125 must be applied; Article 19/1-d of the new Communiqué does not contain a different order either.
The brokerage has the obligation to ensure that the client does not suffer a loss higher than the client's margin; if a loss beyond the margin has arisen, it cannot be demanded from the client.
The brokerage did not create the infrastructure, such as automatic closure, that would provide control through the platform as required by Article 12 of the Communiqué.
The collections made from the claimant's account for the part exceeding the margin are contrary to the agreement and the Communiqué; 916,634.00 USD must be returned to the claimant.

🔄 Appeal: The Margin Was Sufficient, the Payments Were Voluntary

In its appeal petition the brokerage argued that the claimant had not used the position-closing or margin top-up options the platform offers, that the positions were closed by the automatic system, that no strict liability could be placed on it, and that a legal opinion had been taken as the basis in place of the expert's technical opinion.

The Istanbul Regional Court of Appeal 12th Civil Chamber (2020/507 E., 2022/1439 K.) accepted the appeal, set aside the first instance decision and dismissed the claim. The chamber relied on the following findings:

The claimant is a qualified and professional investor who practises the jewellery trade, dealing in gold, and has signed the risk disclosure form.
Under Article 12.2 of the special terms, the investor accepted that if a margin call was not met, the trades could be liquidated by a reverse trade.
When the positions were opened, the account held a balance above the required margin; therefore the client was not made to trade in a way that would cause a loss beyond the margin, contrary to Article 12 of the Communiqué.
The cause of the loss is the fall in the gold price within hours; the brokerage cannot be held liable for this fall, whether at fault or on a no-fault basis. No fault can be attributed to a brokerage that has no right to act against client orders placed through the electronic platform.
Of the 790,134.00 USD paid to top up the margin, 240,134.00 USD was returned on 08.04.2014; the claimant's actual payment is 550,000.00 USD. These payments were made voluntarily, not by deduction from the account.
Since the conditions of Article 78 of the Turkish Code of Obligations (TBK) were not met, a voluntarily made payment cannot be reclaimed; Communiqué No. 125 contains no provision to the contrary.
Under Article 4.5 of the brokerage agreement, the investor is responsible for profit and loss arising from price determination or buy-sell decisions.

Under Article 78/1 of the TBK, a person who voluntarily performs an obligation they did not owe can reclaim it only by proving that they performed it believing themselves to be a debtor. The chamber held that the payment could not be reclaimed within this framework.

🏛️ The Assignees' Appeal and the Affirmation

In their appeal petition the claimants who received the assignment argued that the legislation and Article 12.3 of the agreement prohibit trading beyond the margin, that the brokerage had admitted in one of its petitions that it did not have the capacity to stop the system, that a total of 1,157,268.00 USD had been deposited in the account, and that the brokerage should explain why it had credited 366,633.35 USD back to the account as a "spread refund". They maintained that the absence of fault on the brokerage's part in the fall of the gold price has no effect on the result as far as the ban on loss beyond margin is concerned.

After hearing the parties' counsel on 19.03.2024, the Court of Cassation characterised the dispute as "whether the defendant is liable for the loss the claimant alleges to have arisen". Citing Articles 369/1, 370 and 371 of the Code of Civil Procedure (HMK) and the provisions of Communiqué No. 125 as the applicable law, it found the regional court of appeal's decision to be in accordance with procedure and law and UPHELD it unanimously on 20.03.2024. The claimants who received the assignment were ordered to pay a hearing attorney's fee of 17,100.00 TL.

📎 Full text of the decision: The affirmation decision of the Court of Cassation 11th Civil Chamber dated 20.03.2024, E.2023/348, K.2024/2251, can be read as a PDF here.

🔎 Notable Aspects of the Decision

The moment the rule applies: The regional court of appeal assessed the ban on loss beyond margin at the moment the position was opened; if the margin was sufficient at the time of the trade, it did not treat a negative balance arising later from a price movement as a breach of this rule. The court of first instance, by contrast, had read the rule as an obligation on the brokerage to set up infrastructure preventing loss beyond margin.
The investor's profile: The claimant being a qualified and professional investor working in the gold trade and having signed the risk disclosure form is expressly stated in the reasoning.
The nature of the payment: The payments made to cover the negative balance were characterised as voluntary payments, not deductions from the account; it was accepted that they cannot be reclaimed under Article 78 of the TBK.
The scope of the affirmation: The Court of Cassation did not develop its own reasoning separately and was content to find the regional court of appeal's assessment in accordance with procedure and law.

For other cases in which the closing mechanism in leveraged trading is discussed, see the decisions on the stop-out level and spread objectionTR and on stop-out at a negative oil priceTR. What sets this case apart is that the discussion centres less on the closing level than on the scope of the ban on loss beyond margin and on whether payments that closed the negative balance can be reclaimed.

❓ Questions and Answers

Does the ban on loss beyond margin make the brokerage liable for every negative balance?

In this case the regional court of appeal found that the account held more than the required margin when the positions were opened and that the loss arose later from the fall in the gold price, and accepted that no trade contrary to Article 12 of the Communiqué had been made. The Court of Cassation upheld this assessment. The outcome depends on the margin and closing data of each case.

Why were the payments made to close the negative balance not returned?

According to the regional court of appeal, the payments were made with the investor's consent, not by deduction from the account. Under Article 78 of the TBK, a person who voluntarily performs an obligation they did not owe can reclaim it only by proving that they paid believing themselves to be a debtor; the court accepted that these conditions were not met.

Did the investor being a jeweller play a role in the decision?

In its reasoning the regional court of appeal described the claimant as a qualified and professional investor working in the gold trade and noted that he had signed the risk disclosure form. This finding was one of the bases for the conclusion that the claimant was aware of the risks that could arise.

Who appealed the case and did this affect the outcome?

Because the receivable was assigned during the proceedings, the appeal was lodged by the claimants who received the assignment. The decision text contains no separate assessment of the effect of the assignment on the merits; the Court of Cassation did not find the appeal objections well founded and placed the hearing attorney's fee on the claimants who received the assignment.

For detailed information and legal support, you can contact Savun Law & Consultancy. Contact details are available on the contact page; other case reviews on disputes between investors and brokerages in leveraged trading are on the Precedent DecisionsTR page.

This article is for general information only; its content has been compiled from the affirmation decision of the Court of Cassation 11th Civil Chamber published in the Court of Cassation decision search system. The names of the lawyers appearing in the source have not been included in the article or the PDF. The decision is based on transactions in 2013 and the SPK regulations in force at that time. In a seemingly similar dispute the outcome may differ according to the margin level at the time of the trade, the closing data, the contract terms, the investor's profile and the way the payments were made. Savun Law & Consultancy cannot be held responsible for any application, lawsuit or defence made on the basis of this article.

3 attorneys registered with the Istanbul Bar Association · verifyGoogle 4.8 ★ · 123+ reviews · seeOffice in Istanbul · English-speaking team · about us

Questions & answers · Istanbul Bar Association 75235

Have a question about this topic? Ask our lawyer.

Write your question and Attorney Veli Savun will answer it on this page. You do not need to give your name.

Example questions — tap one and adapt it to your situation:

Answers are general information only; they do not create a lawyer–client relationship and are not legal advice on your specific case. All questions & answers →

This page is an English adaptation of our Turkish article Kaldıraçta Teminatı Aşan Zarar – Yargıtay 11. HD 2024/2251.

More from Investment Fraud & Crypto Law in Türkiye

All articles in this section →