Turkey: Decision Of The Court Of Cassation On The Unification Of Case Law Concerning Interest Problem In Partial Claim Lawsuits

Introduction

A partial claim lawsuit is an action in which the claimant requests a decision on a certain part of its claim or right arising from a legal relationship with the same person, for the time being. In this type of case, the claimant, while filing a lawsuit, sues for a part of its claims, saving its right to claim and litigate the remainder in the future. After filing a partial claim lawsuit, the claimant requests its reserved rights through rectification (to increase the claimed amount) during the course of the proceedings. The partial claim lawsuit is preferred in order to save the cost of proceedings at the beginning of litigation process, as well as for the determination of the exact amount of the claim, as well as compensation, in cases where those amounts cannot be exactly determined beforehand.

A partial claim lawsuit, which has been a frequently used method, although it was not explicitly regulated by the abrogated Code of Civil Procedure No. 1086 ("aCCP"), has been accepted as a type of case in Code of Civil Procedure No. 6100 ("CCP") and it has been conditioned to be applied where the "subject of demand is divisible".

When a partial claim lawsuit is filed, the problem of interest arises regarding the action of debt, since the demand is increased through rectification. The chambers of the Court of Cassation have differing opinions concerning whether interest can be ruled upon, if not demanded, during the rectification; therefore, this issue has been addressed by the Grand General Assembly of the Unification of Case Law of Court of Cassation ("GGA").

Preamble of the Decision

The GGA, in its decision dated 24.05.2019, Nos. 2017/8 E. - 2017/8 K., summarized different chambers' opinions and their reasons. While some chambers argued that interest should be ruled upon based on the lawsuit petition (even if no demand for interest has been sought in the rectification request), others argued that interest cannot be applied to the portion increase by rectification since no such demand has been made.

The GGA concluded that in order to resolve the matter, the question to be examined is whether the increase of the claim by rectification is a new or an additional claim. According to the GGA, increasing the claim should be considered as "partial rectification". The additional case is the lawsuit filed for reserved claims before or after the settlement of the partial claim lawsuit. As partial rectification is a legal establishment, which permits acquisition of the rights that can be obtained through an additional case with less expense and in a shorter period of time within the existing proceedings, it is an alternative to file an additional case. It has been accepted by the GGA that the claimant has the right to choose between partial rectification and filing for an additional case. Problems related to rectification should be assessed and concluded within the scope of the rectification establishment.

The rectification petition presented during the partial claim lawsuit does not eliminate the demands and auxiliaries in the petition, but only changes the amount of the requested claim. Therefore, the amount increased by rectification should not be considered as a new case, and all elements included in the first petition should be applicable to the portion increased by rectification, including the interest claim. According to the GGA, there is no need to reiterate the interest claim in the rectification petition since the interest claimed in the petition would be applicable to the rectification petition.

At the preamble of the decision, it states that by accepting the applicability of the interest requested in the partial claim lawsuit to the increased amount of claim within the scope of the partial rectification, where interest is not demanded, it cannot be concluded that this would eliminate the difference between unquantified debt lawsuit and partial claim lawsuit. In fact, the partial claim lawsuit and unquantified debt lawsuit regulated in Article 107 of the HMK is filed and heard for different reasons, and under different conditions. While an unquantified debt could be subjected to an unquantified debt lawsuit, a declaratory lawsuit or to a partial claim lawsuit, a certain or definable receivable could not be subject to an unquantified debt lawsuit or to a declaratory lawsuit.

On the other hand, since the default and its conditions shall be determined separately according to the nature of the legal relationship or the legal situation to which the receivable is attached, it is clearly stated in the decision that associating the partial rectification with the default is inaccurate.

Moreover, it is stated that accepting the interest claim in the partial claim lawsuit petition is valid for the amount increased by rectification would also serve for the realization of the right to legal remedies, guaranteed by the international conventions signed by Turkey and in our Constitution, and would comply with the principles of fair trial and procedural economy.

Conclusion

Regarding the reasons presented, the GGA concluded with a two-thirds majority that in a partial case where an amount is claimed, with interest, it can rule upon the interest-based claim in the petition for the amount increased by the rectification, even if there is no interest claim mentioned in the rectification petition.

On the other hand, the members who voted against the decision disagreed claiming that the judge is bound by the request of the claimant, and the judge cannot award beyond the claimants' request; therefore, if interest is not sought while increasing the claim by rectification, the judge cannot rule upon interest; moreover, this does not imply, by itself, that interest is being requested for the claim amount that has been increased by rectification.

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