INTRODUCTION
- In General
During the lawsuit, that is, after the lawsuit is filed, the transfer of the subject of the lawsuit by the defendant party and the plaintiff party is regulated within the scope of Article 125 of the Code of Civil Procedure1 (CCP) No. 6100.
In the event that the defendant transfers the subject matter of the lawsuit during the lawsuit, the plaintiff has two options:
- To continue the case against the person who has taken over the subject of the case.
- To turn the current case against the transferring defendant into a compensation case.
The plaintiff may exercise one of these optional rights. Although the defendant does not declare that they have transferred the subject of the case, if the court determines this ex officio, they must ask the plaintiff which of the electoral rights they would prefer and take action according to the response of the plaintiff.
If the plaintiff transfers the subject of the case during the case, the person who has taken over the subject of the case takes the place of the plaintiff in the case and the case continues from where it left off. In this case, if the case is concluded against the plaintiff, the transferor and transferee shall be jointly and severally liable for the litigation expenses.
The transfer of the subject of the case by the plaintiff and the transfer of the case by the defendant are examined in detail below.
A. Transfer of the Subject Matter of the Lawsuit from the Defendant to a Third Party
- Continuing the Case Against the Person Who Inherited the Subject Matter of the Case
In the CCP, two optional rights are granted if the subject of the case is transferred to a third party by the defendant. One of these optional rights is to waive the lawsuit with the transferor and to continue the lawsuit against the person who has taken over the previous one.
In such a case, the subject of the case remains the same.2 However, the "defendant", who is the party to the case, changes. If the plaintiff uses his/her right to continue the case against the person who took over the subject of the case and wins the case, he/she stipulates that the defendant who transferred and the third party who took over in the Code of Civil Procedure, that is, the new defendant, will be jointly and severally responsible for the litigation expenses. For example, the plaintiff gave the defendant a computer as a hostage and filed a lawsuit to have this computer taken from the defendant and delivered to him. The defendant, on the other hand, transferred the computer to a third party after the lawsuit was filed. In such a case, the plaintiff has the right to continue his case against the third party who took over the computer. This is actually a change of party in the case.
As it is known, the change of party in the case is only possible with the explicit consent of the other party within the scope of Article 124 of the Code of Civil Procedure. However, in the second paragraph of the aforementioned article, the special provisions in the laws are reserved. For this reason, the defendant was granted an optional right in Article 125. In this case, the defendant's willingness to continue the case against the third party who takes over the subject of the case will not depend on the consent of the other party, even if there is a change of party in the case. In the will of the legislator here, granting the defendant the right to change parties without filing a new lawsuit in the event that the subject of the lawsuit is transferred is also compatible with the principle of procedural economy.
If the defendant transfers the subject of the lawsuit to a third party during the lawsuit and the plaintiff wants the lawsuit to continue against the third party who takes over the subject of the lawsuit, he/she must submit this request to the court with a petition. In short, this is not a legal change of party. It is a change of party in a lawsuit based on the plaintiff's party action.
If the case is brought against the third party who takes over the subject of the case, no fee is charged again and the trial continues over the same case. In this context, issues such as limitation period and statute of limitations are examined on the basis of the date of filing the first lawsuit. In addition, it is responsible for the transactions up to the moment when the third party who takes over the subject of the case enters the case as a party. In other words, the procedural procedures made by the previous defendant remain valid and the new defendant, who takes over the subject of the case, cannot ask for them to be repeated. (For example; breeding)
Although the plaintiff directs the subject of the case to the third party who has taken over, the result of the case remains the same. The plaintiff requests that the goods be returned exactly. It does not have the right to claim compensation from a third party.
If the plaintiff is right in his/her original case and the court decides to accept the case, he/she will now be sentenced only against the new defendant, who is the third party3; however, the old defendant and the new defendant will be obliged to pay the trial expenses jointly and severally.
In the event that the plaintiff loses the case, the plaintiff is obliged to pay the litigation expenses to the third party who is the new defendant. Since the former defendant no longer has the title of party in the proceedings, no judgment is made in his favor.
As mentioned above, if the plaintiff continues his/her case against the third party who takes over the case, there will be a change of party in the case and the former defendant will no longer be a party to the case and will lose his/her title as a party. However, in terms of the transferor defendant, there may be a secondary intervention in the case. As it is known, in order for there to be a private intervention, there must be a "legal benefit" condition. In terms of the transferor, who is the former defendant, it can be argued that the legal benefit is not to be responsible for the litigation expenses or not to be responsible for the report against the new transferee.
When the subject is evaluated in terms of primary intervention, since the transferor cannot have a right and claim on the subject of the case with the transfer of the subject of the case, there will be no primary intervention.
If there is a transfer of a part of the subject of the case, voluntary companionship is in question. For example, if a certain share of an immovable property is transferred to a third party, the plaintiff may want to continue his/her case against the third party for the transferred part of the subject of the case. In such a case, the transferor and the transferee become arbitrary litigation companions.
- Converting the Current Case against the Assigning Defendant into a Compensation Case
In another of the optional rights granted to the plaintiff, the defendant party does not change; as an exception to the prohibition of changing the case, the subject of the case changes. Within the scope of the Code of Civil Procedure, there is a prohibition to change the claim and defense. However, in the event of the transfer of the subject of the case, the plaintiff's exercise of this optional right does not depend on the consent of the defendant. In short, converting the present case into a compensation case in case of transfer of the subject of the case is an exception to the prohibition of expanding the claim and defense.
Pursuant to Article 125 of the Code of Civil Procedure, The most important factor in determining which of the two elective rights specified in the article will be whether the transferee is in good faith or not. If the transferee is not aware of the existence of the case and is in good faith, it may be rejected if the case is directed to him/her. For this reason, the plaintiff may choose to continue the case with the current defendant. However, in the case-law of the Court of Cassation, we see that the condition for translating the subject of the case into compensation is that there is no possibility to recover the goods from the third party.
If the plaintiff wishes to continue his/her case as a compensation case with the current defendant, he/she must explicitly notify the court. The amount of compensation claimed in this petition must also be specified. We can state that the compensation here will be equal to the subject of the case. In the decisions of the Court of Cassation, it was stated that the amount of compensation would be the real value of the goods or rights subject to the lawsuit transferred by the defendant to the third party on the date of transfer.
After the plaintiff submits his/her request to the court that he/she wants to continue as a compensation case, the case continues as a compensation case. However, the consequences of filing the lawsuit also continue. In other words, the case is continued from where it left off.
In the second case, the plaintiff continues his/her lawsuit against the transferee and may also file a new compensation lawsuit against the transferor. In short, continuing with the third party taking over the case will not mean a waiver of his rights against the transferring defendant.4
B. Transfer of the Subject Matter of the Lawsuit from the Plaintiff to the Third Party
If the plaintiff transfers the subject of the lawsuit to a third party after the lawsuit is filed and while the trial is ongoing, it is regulated that the person who has taken over in paragraph 2 of Article 125 of the Code of Civil Procedure will replace the plaintiff in the current lawsuit and the lawsuit will continue from where it left off. Within the scope of this regulation, the third party who has taken over the subject of the case from the plaintiff enters the case automatically as per the law. It is not the subject of the case, but the side of the case changes. In short, there is a change of legal party that occurs spontaneously. The new plaintiff cannot object to the procedural procedures made before him. For example, if the old case has corrected the case, the new plaintiff no longer has the right to correct.
- Evaluation of the Issue Within the Scope of Supreme Court Decisions
The decision that the transfer of the subject of the case by the plaintiff should be observed ex officio by the court5:
"In the event that the subject of the case is transferred to a third party by the plaintiff, this issue should be observed by the court spontaneously (ex officio) and a judgment should be made about the transferee as a result of the trial.
In this case, while the court should take action by observing the regulation in Article 125/2 of the Code of Civil Procedure and then make a decision, it is not correct to have a verdict as written by ignoring the mentioned issue."
In the event of the transfer of the subject of the case, the reason for the reversal was made by the Supreme Court of Cassation that the plaintiff was not reminded of his elective rights within the scope of Article 125 of the Code of Civil Procedure and that the case was only notified to the transferee6:
"Some of the shares in the parcels subject to the lawsuit were transferred to the other Municipality through corrections between the institutions, the provision of Article 125 of the Code of Civil Procedure was not applied by the court, but it was included in the lawsuit in the capacity of being notified to the relevant Municipality. It is clear that the verdict will be given about the parties and the third party to whom the lawsuit is reported will not automatically become a party to the lawsuit, and it is understood that the notified Municipality does not request primary or secondary intervention.
Due to the assignment of some shares in the parcels to a third party other than the case, in accordance with the provision of Article 125 of the Code of Civil Procedure regarding the transfer of the subject of the case, the plaintiff party should be reminded of the right to choose and asked how to continue the case and a decision should be made in terms of the merits of the work in accordance with the evidence collected after the procedural deficiency in this direction is eliminated, but it is inaccurate to establish a judgment without considering this issue. "
If there is no valid transfer in the field of material law, the decision that the procedural provisions regarding the transfer of the subject of the case will not be applied7:
Since the rules regarding the transfer of immovables are determined by the provisions of the above law and are subject to the formal conditions to be issued by the land registry director or land registry officers, during the lawsuits filed with the request of title deed cancellation and registration, the plaintiff does not have the opportunity to transfer the ownership or real right in the immovable subject to the lawsuit to a third party through the transfer of the receivable, based on Article 125/2 of the Code of Civil Procedure, where the provisions to be applied in civil proceedings are regulated. According to Article 183 of the TCO, for the assignment of a right to a third party through the transfer of the receivable, the nature of the work should not prevent this. In such cases, there is no right that can be transferred through the assignment of the receivable. Since it is not possible to transfer the real rights that are absolute rights that can be asserted against everyone in this way, it cannot be said that the assignee has gained the title of party by replacing the plaintiff who has the right of ownership. Otherwise, the plaintiff will have transferred the title deed to the assignee through the assignment of the right of ownership, which he claimed to exist during the lawsuit, before he has yet registered it in his own name. In addition, it would not be accurate to say that an exception has been made by Article 125/2 of the Code of Civil Procedure on a subject where the condition of official form is stipulated as a condition of validity for the transfer of the right within the scope of the provisions of the law on material law. While the substantive law rules regulate the rights, powers, duties and debts of individuals, the procedural rules regulate the formal rules regarding the method and functioning of a case before the courts and aim to resolve the cases in accordance with these determined forms, periods and procedures. For this reason, it cannot be accepted that the right in rem is transferred by granting validity in the sense of procedural law to the facts that material law does not bind judgments and conclusions. Essentially, the transfer of the subject matter of the case is an institution that determines how the changes that arise at the level of substantive law should be evaluated at the level of procedural law.
The decision stating that the transfer of the subject of the lawsuit and the assignment of the receivable are different from each other, and that if the plaintiff transfers the subject of the lawsuit, the transferee will legally acquire the title of plaintiff and the authority to follow the lawsuit:8
"Since it is understood that there is a prohibition of assignment by the court and the assignee did not notify the will to follow the case, since it is understood that the intervention case does not need to continue in the civil court of first instance by taking into account the judgment given in the sense of the main case, the decision regarding the procedural rejection of the petition due to the fact that the commercial court of first instance is in charge, taking into account that the parties are merchants in the sense of the intervention case, has been appealed by the plaintiff's attorney.
As a rule, if there is a prohibition of assignment in the contract or it is subject to the consent of the debtor and the consent of the debtor is not available, the assignment of the receivable cannot be asserted against the debtor.
The transfer of the subject of the lawsuit is different from the assignment of the receivable, and although it is possible to make a progressive payment before the lawsuit in the assignment of the receivable and even during the execution of the contract in the cases where the progressive payment is agreed, the transfer of the subject of the lawsuit can only be made after the lawsuit is filed, as can be understood from the name. The transfer of the subject of the case is regulated in Article 125 of the Code of Civil Procedure No. 6100 in force at the date of the case. In paragraphs a and b of paragraph 1 of the said article, the plaintiff's optional rights are shown if the defendant party transfers the subject of the lawsuit to a third party after the lawsuit is filed. In concrete disputes, this issue is out of our scope. The transfer of the subject of the lawsuit by the plaintiff is regulated in the 2nd paragraph of Article 125 and it is stated in the text of the article that "if the subject of the lawsuit is transferred by the plaintiff after the opening of the lawsuit, the person who has taken over takes the place of the plaintiff in the current lawsuit and the lawsuit continues from where it left off".
The provision of Article 125/2 of the Code of Civil Procedure, which regulates the transfer of the subject of the lawsuit by the plaintiff to a third party, has brought the principle that the transferee third party will automatically replace the plaintiff and continue the lawsuit on the grounds that the transferee will acquire the title of plaintiff and accordingly the lawsuit follow-up authority in accordance with the law (ipso jure) and that the lawsuit will continue with the new plaintiff.
According to this provision, the case will continue between the third party taking over the case and the defendant. For this, the defendant's approval is not sought for the defendant to decide on this issue or for the transferee third party to replace the plaintiff. (Civil Procedure Law, Yetkin Law Publications 1st edition Prof. Studies Ramazan Arslan, Prof. Studies Ejder Yilmaz, Prof. Studies Sema Taşpınar Ayvaz page 511 et seq.). If the subject matter of the lawsuit is transferred to another person by the plaintiff after the lawsuit is filed, in this case, the transferee replaces the plaintiff and continues the current lawsuit from where he/she left off. However, in this case, the defendant may put forward personal defense reasons against the new plaintiff (Civil Procedure Law Competent Publications 12th edition Prof. Studies Hakan Pekcanıtez, Prof. Studies Oğuz Atalay, Prof. Studies Muhammed Özeken page 412. et seq.)."
The decision that the plaintiff's right of choice in the Code of Civil Procedure can be exercised once and that this right will be exhausted9:
"Although the immovable subject to the lawsuit changed hands twice in the title deed during the trial, the plaintiff's attorney exercised his right of preference in accordance with Article 186 of the Code of Civil Procedure in force at that time after the second transfer was made and stated that they would continue the lawsuit as a compensation lawsuit against the transferor of the immovable; the lawsuit was continued as a compensation lawsuit by the court. After the optional right was used by the plaintiff party in this way, a lawsuit was filed against the transferee ... and ... on 16.07.2012 with the request for cancellation and registration of the title deed based entirely on the claims in the first case. However, as adopted in the decision of the General Assembly of Law dated 11.05.2011 and numbered 2011/6-123 E., 2011/301 K., it is not possible for the plaintiff, who does not use the right to direct the case, which is one of the optional rights shown in this article, to the new owner and continues as a compensation lawsuit against the defendant, to return from this preference right and make the same request against the new owners again. Likewise, the optional right here is a right that has consequences and is consumed by being used once. Although it is clear that a new right of choice will arise as long as it is not contrary to the rule of honesty, in the event that the plaintiff directs the case to the third party who takes over the subject of the case, and the transferee transfers the right or property to another person again, that is, consecutive transfers are made during the case, there is no such situation in the concrete case."
CONCLUSION
The consequences of the transfer of the subject of the case within the scope of Turkish law in terms of procedural law are explained above.
REFERENCES
ALANGOYA, YAVUZ/YILDIRIM, KÂMİL/DEREN-YILDIRIM, NEVHİS, Principles of Civil Procedure Law,
Istanbul, 2009.
KURU, BAKİ/ARSLAN, RAMAZAN/YILMAZ, EJDER, Civil Procedure Law Textbook,
Istanbul.
PEKCANITEZ, HAKAN/ATALAY, OĞUZ/ÖZEKES, MUHAMMET: Civil Procedure Law.
POSTACIOĞLU, İLHAN, Assignment, July 2011.
Footnotes
1 OG., 1.10.2011, P. 6100.
2 Pekcanıtez, Hakan/Atalay, Oğuz/Özekes, Muhammet: Civil Procedure Law, p.388,389.
3 Kuru, Baki/Arslan, Ramazan/Yılmaz, Ejder: Civil Procedure Law Textbook, p.562.
4 Postacıoğlu, Temlik, p.121.; Alangoya/Yıldırım/Deren-Yildirim, Civil Procedure Law, p.279.
5 Decision of the General Assembly of the Court of Cassation, E. 2017/1220 K. 2020/50 T. 23.1.2020. For the decision, see https://www.lexpera.com.tr
6 Supreme Court of Appeals 1. Civil Chamber, E. 2016/11313, K. 2019/4045, T. 24.06.2019. For the decision https://www.kazancı.com.tr
7 Decision of the General Assembly of the Court of Cassation, E. 2022/851 K. 2022/1557 T. 22.11.2022. For the decision, see https://www.lexpera.com.tr
8 Decision of the General Assembly of the Court of Cassation, E. 2018/565 K. 2021/1464 T. 18.11.2021. For the decision, see https://www.lexpera.com.tr
9 Decision of the General Assembly of the Court of Cassation, E. 2020/130 K. 2022/1576 T. 22.11.2022. For the decision, see https://www.lexpera.com.tr
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