Turkey: Unjust Enrichment Under The Turkish Code Of Obligations

Introduction

Unjust enrichment is regulated under Articles 77-82 of the Turkish Code of Obligations No. 6098 ("TCO"). In the TCO, unjust enrichment is regulated as a third source of obligation along with agreements and torts.

As per Article 77 of the TCO, anyone who is enriched unjustly from someone else's property or services is obliged to restitute this enrichment. In order to mention the occurrence of an unjust enrichment, there must first of all be enrichment in the property of a person (enrichment). On the other hand, there must also be a decrease in the property value of another person (impoverishment) and there must be a causal link between such enrichment and impoverishment.

Enrichment in the property of a person obtained against the benefit of another person does not always result in the obligation of restitution, even where there is a causal link. The obligation of restitution arising from unjust enrichment in the increase of a person's property value must rely on "lack of a legal ground".

Pursuant to Article 77 of the TCO, the obligation of restitution arises where enrichment especially relies on an (i) invalid, (ii) unrealized or (iii) terminated cause.

It should be understood that, as per the law, unjust enrichment creates a relationship of obligation between the enriched and impoverished person, and the subject of this obligation is the restitution of enrichment in property value. The offer of restitution relies on a relative claim right arising from a debt relationship. Thus, the claim of restitution may only be addressed to the enriched person and all of his successors.

Payment in Satisfaction of a Non-existent Obligation

Article 78 of the TCO is entitled "payment in satisfaction of a non-existent obligation". As per this article, a person who has voluntarily satisfied a non-existent debt has a right to restitution of the sum paid only if he can prove that he paid it in the erroneous belief that the debt was owed. Therefore, where an obligation that does not actually exist is satisfied, in order to rely on an unjust enrichment, there are some conditions that must be realized: (i) payment should be conducted for the performance of the obligation, (ii) there should be a non-existence of debt and (iii) the person performing the obligation should presume himself under the obligation by error.

It is clearly designated in the law that enrichment arising from the performance of a time-barred obligation or from fulfillment of a moral duty cannot be reclaimed. However, other provisions of the law with respect to reclaiming the performance of non-existing debts are reserved.

The scope of a restitution obligation arising from unjust enrichment differs depending on whether the enriched person acted in goodwill or bad faith.

Scope of Restitution

Under Article 79, unless the person being unjustly enriched can show that he has disposed of some part of the enrichment at the time the claim for restitution is brought, he shall be held responsible for restitution of what he has not disposed. On the other hand, where the person being unjustly enriched disposes of the enrichment in bad faith or is aware that he is bound to return the enrichment in the future, then the enrichment must be restituted fully.

Article 80 foresees the expenses which may be claimed by the person enriched unjustly. Herein, the expenses to be claimed differ depending on whether or not the person acted in goodwill or in bad faith. Where the enriched person acted in goodwill, he may claim the necessary and useful expenses. However, where the enriched person acted in bad faith, he is only entitled to reimbursement of the increase in the property value at the time of its return, along with the necessary expenses. Nevertheless, if no compensation is offered to him he may, before returning the property, remove anything he had added to it, provided that it is possible to do so without damaging it.

Article 81 sets forth that there is no right to restitution with respect to anything given which produces an unlawful or immoral outcome. In case an action is brought, the judge may decide on restitution for the benefit of the state.

Time Limits

As per Article 82 of the TCO, a claim for unjust enrichment becomes time-barred two years after the date on which the injured party learned of his claim and in any event ten years after the date on which the claim first arose. However, if the unjust enrichment is arising from a claim against the injured party, the injured party may refuse to satisfy the claim.

Conclusion

Unjust enrichment under Articles 75-82 of the TCO is regulated as a third source of obligation along with agreements and torts. Anyone who is enriched unjustly from someone else's property or service is obliged to restitute this enrichment. The scope of the restitution arising from unjust enrichment and the expense claims vary based on whether or not the enriched person acted in goodwill or in bad faith. A claim for unjust enrichment becomes time-barred two years after the date on which the injured party learned of his claim and in any event ten years after the date on which the claim first arose.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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