An unquantified debt is regulated under article 107 and a partial lawsuit is regulated for the first time, under article 109 of Civil Procedure Law numbered 6100. In this study, the conditions of an unquantified debt lawsuit and the legal problems caused by a lawsuit filed before these conditions were met examined; the problems encountered in practice on how to determine the difference between an unquantified debt lawsuit and a partial lawsuit are emphasized.
Legal Nature of Unquantified Debt Action
The term "action for performance" means a plaintiff demands that the defendant be ordered to do or not to do, or else refrain from doing something. An unquantified debt is also considered within the scope of the action for performance because the creditor convicts the debtor to a debt based on an assignment.1
As mentioned in sub-paragraph 'ğ' of article 119 of the Civil Procedure Law, the plaintiff must 'clearly write his/her request' in the petition. If it is impossible or unreasonable to the assignment the amount of the debt at the start of the proceedings, the plaintiff may bring an action for an unquantified debt. (Action for an unquantified debt, article 107)
In our opinion, in such cases where the approximate value of the assets cannot be determined according to the mentioned article above, a situation in favor of the creditor is intended to be provided. In fact, in the lawsuit, the parties must reach an agreement for the actual amount to be received. In case an agreement cannot be reached, the judge will be able to determine an equitable amount.2
It should also be stated that an unquantified debt action for the creditor, eliminates the statute of limitations for all creditors from the moment it is filed.3
2. Conditions of an Unquantified Debt Lawsuit
- Impossibility of Determining the Value of the
As per article 107 of Civil Procedure Law, the request stated in the petition of the plaintiff who filed an unquantified debt is a temporary request. The plaintiff can then increase this provisional request as a final demand.4
- Indicating the Value Of the Temporary Request in The
Legally, under Article 107/2 of the Civil Procedure Law, it is underlined that a certain amount should be requested at the beginning of the case, even if the legislator has an unspecified credit case.5,6,7
- Plaintiff Who Filed an Unquantified Debt Lawsuit Should
Fully Notify All Cases Based on The Claim Result
Even if the plaintiff cannot specify the outcome of the claim in an unquantified lawsuit, the plaintiff must submit to the court in full all cases on which the claim result is based because what's uncertain here is not the case, but the amount or value.8 As per the Civil Procedure Law Article 119/1-e, it is obligated to state all cases that are the basis of the plaintiff's claim. Therefore, according to Article 119/2 of the Civil Procedure Law; If the matters other than sub-article (a), (d), (e), (f), and (g) of the first paragraph are missing, the judge gives the plaintiff a final period of one week to complete. Otherwise, the lawsuit is deemed unsuitable.
Legal Nature of a Partial Lawsuit Concept
As per Article 109/1 of the Civil Procedure Law; a partial lawsuit may be filed in cases where the subject of the request is divisible due to the nature of the claim. A partial lawsuit cannot be filed if the amount of the claim is unquestionably or explicitly specific between the parties. It was repealed with article 4 of the Court of Cassation Law no; 6644 dated 01.04.2015 and article 4 of the Law on Amendments to the Law on Legal Procedures published in the Official Gazette no. 29323 dated 11.04.2015. With the abolition of this article, various discussions have arisen in the doctrine.9,10,11
Issues Arising from the Limit of Unappealability
First be noted that the plaintiff and the defendant whose case is concluded within the periods specified in article 361, which regulates the appeal application in the Civil Procedure Law are notified of the next legal path to apply with judgment on the court and the finalization limit at the date of the conclusion of the decision and the case of the parties to apply for an appeal or appeal are decided. Thus, we can say that the appeal limit is of public order.
The Court of Cassation has determined the limits as per the type of case:
- In merged cases, the appeal limit is set separately for each case.
- In the case of the permissive joinder of parties, the appeal limit is set separately for each of the joinders of parties' cases.
- In counteraction, the appeal limit is set separately for the original case and the countersuit.
- In declaratory action, the appeal limit is determined by the quantity and value of the action for performance, which is the precursor to the declaratory action.
- In case only a part of the claim is issued, the appeal limit in the partial lawsuit is determined according to the whole claim.
The appeal limit in the unquantified debt varies in employment lawsuits. But the 9th Civil Chamber of the Court of Cassation (in charge of cases arising from employment law) states the appeal limit in such cases as follows;
"In employment lawsuits, it is often seen that the same plaintiff puts forward more than one main claim against the same defendant with the same petition and demands that each claim be ruled independently of the others. There is no legal hitch to filing a partial lawsuit or an unquantified debt in the same petition.
"Since the severance pay, notice pay, annual leave fee, and wage are known to the employee those are not subject to an unquantified debt. However, if the determination of the number of social rights (such as food assistance provided in-kind) which are elements of the account is to be determined by the employer or by judgment, severance and notice pay may be subject to an unquantified debt lawsuit."
As it can be seen, the freedom to seek rights and an unquantified debt lawsuit provided for those who will be wronged or victimized by the law, and the partial lawsuit rights have caused many problems. Well, here is the thing; many cases filed an unquantified debt lawsuit have been procedurally rejected many times in cases where they cannot meet their conditions and in the partial lawsuit, the statute of limitations starts on the set amount and still brings with it an exception problem for the rest of the part. Other controversial issues include leaving the costs of the trial to the defendant in general in both the unquantified debt lawsuit and the partial lawsuit. However, I would like to point out that the main problem is that the errors in determining the appeal limit of these two types of cases have increased the victimization situation.
In our opinion; considering all this information, however, it is necessary to interpret the conditions of the unquantified debt lawsuit and the partial lawsuit correctly under the letter of the law, to prevent unjust situations happens, as Varol KARASLAN stated in his article 'Are the Two Sides of the Same Coin?' (https://www.jurix.com.tr/article/11864), the regulation of both cases in a single article will prevent these complexities somewhat.
Keywords: Civil Procedure Law, Partial Lawsuit, Unquantified Debt, judge's ex officio enforcement of the law
1. Pekcanıtez/Atalay/Özekes , Civil Procedure Law, Ankara-2014, 2. Edition page,254
2. General Assembly of Law, Merit: 2015/9-3162, Verdict: 2018/369, Date: 02.06.2016
3 '... Plaintiff may, for example, be able to file a lawsuit aimed at determining the number of receivables and the debtor's liability, rather than the collection of compensation. This case will break the statute of limitations, the declaration in the case may be pursued through general foreclosure, and the enforcement-denial compensation sanction, which the borrower may not be able to afford in case of objection, may come into effect...'
4. Pekcanıtes/Atalay/Özakes, page 256: Pekcanıtez; He focused on two situations in determining the assignment amount of debt; the determination of the result of the request can be for biological or legal reasons.
5. Pekcanıtez;' The plaintiff, who filed an indefinite claim, has to specify the small amount requested, although it does not determine the exact amount of the assignment in the petition.' explained as.
6. Page148 Baki KURU; He said that situation about "An unquantified debt action, as soon as it is possible to determine the amount or value of the assignment exactly and precisely as a result of the information given by the other party or the investigation, the plaintiff can increase the demand without being subject to the prohibition of extending the claim."
7. Karaaslan, Yeditepe University Faculty of Law Journal, An Unquantified Debt / Partial Lawsuit / Two different sides of a Madellion, second issue/2017Karaaslan; He stated that in cases where the amount of the assignment in no-liquid receivables is not certain or it is not possible to determine, the creditor and the debtor can reach an agreement on this issue, and if they cannot agree, the determination of the actual amount of the receivable can be made possible by a court decision.
8. Pekcanıtez / Özekes / Atalay page.256
9. Pekcanıtez/Atalay/Özekes, page.265 Pekcanıtez/Atalay/Özekes said that stated of '' it is intended to prevent unintended use in article 109/2 of The Civil Procedure Law and stated that the partial case should be dismissed due to lack of benefit if it is accepted that the plaintiff has no legal interest in filing a partial lawsuit as of the article mentioned.''
10. Baki KURU, page.146 Baki KURU said that situation; '' During the period when Article 109/2 of The Civil Procedure Law was in force, the partial lawsuit was greatly restricted in practice and therefore the partial lawsuit died in terms of certain an assignment; Under Article 109 of The Civil Procedure Law, he adopted the view that his judgment was stillborn.''
11. Karaaslan, Yeditepe University Faculty of Law Journal, An Unquantified Debt / Partial Lawsuit / Two different sides of a Madellion, second issue/2017Karaaslan; He argued that (Civil Procedure Law article 109/2) this clause violates articles 2., 13., 36., and 141. of The Constitution and therefore constitutes an obstacle to the freedom of entitlement.
1. PEKCANITEZ/ATALAY/ÖZEKES, Civil Procedure Law,
Ankara-2014, 2th Edition
2. BAKİ KURU, Civil Procedure Law Textbook, İstanbul-2016
3. DOÇ.DR. VAROL KARAASLAN / Yeditepe University Faculty of Law Journal, An Unquantified Debt Lawsuit / Partial Lawsuit / Two different sides of a Madellion, second issue/2017 ( https://www.jurix.com.tr/article/11864 )
4. PROF. DR. SÜHA TANRIVER, Civil Procedure Law , Ankara – 2016
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