The statute of limitations is defined as the periods specified in the relevant legal provisions for the acquisition or loss of a right. The Turkish Code of Obligations No. 6098 regulates the statute of limitations concerning claims in our legal system. The statute of limitations for claims is regulated between Articles 146 and 161 of the Turkish Code of Obligations (TCO).
According to our Code of Obligations, the statute of limitations does not eliminate the right to claim itself but rather the right to file a lawsuit for the claim. In other words, the statute of limitations prescribed by the Turkish Code of Obligations does not extinguish the debt related to the claim but results in the expiration of the right to bring a lawsuit and, consequently, the loss of the right.
Pursuant to Article 146 of the Turkish Code of Obligations No. 6098, the general statute of limitations for claims is regulated. According to the provision of the article:
ARTICLE 146-
Unless otherwise provided by law, all claims are subject to a ten-year statute of limitations.
Pursuant to this legal provision, any claim falling within the scope of the Turkish Code of Obligations is subject to a ten-year statute of limitations unless otherwise stipulated by law. If there is no contrary provision in the law regarding a specific claim, the right to file a lawsuit remains valid for ten years, and the creditor may demand their claim from the debtor through legal action.
The Turkish Code of Obligations also prescribes five-year statute of limitations periods. However, this five-year limitation period is restricted to the claims expressly listed in the legal provision and is only applicable to those specified claims.
According to Article 147 of the Turkish Code of Obligations:
ARTICLE 147-
A five-year statute of limitations applies to the following claims:
- Periodic obligations such as rental payments, principal interest, and wages.
- Accommodation fees for places such as hotels, motels, guesthouses, and holiday resorts, as well as food and beverage expenses at restaurants and similar establishments.
- Claims arising from small-scale artisan work and minor retail sales.
- Claims arising from partnership agreements between partners or between partners and the partnership, as well as claims between the directors, representatives, and auditors of a partnership and the partnership or its partners.
- Claims arising from agency, commission, and brokerage agreements, excluding claims for commercial brokerage fees.
- Claims arising from contracts for work, except in cases where the contractor fails to fulfill its obligations properly or at all due to gross negligence.
Pursuant to Article 147 of the Turkish Code of Obligations, the five-year statute of limitations applies to the claims listed above. If five years have passed since the claim became due, the claim will be considered a natural obligation, and the creditor will no longer have the right to demand the claim through legal action.
STARTING PERIOD OF THE STATUTE OF LIMITATIONS FOR CLAIMS
According to the Turkish Code of Obligations, the statute of limitations for claims begins to run when the debt becomes due. The moment the claim subject to the debt becomes payable by the debtor is considered the point at which the claim becomes due. From that moment, the legally prescribed ten-year limitation period and other applicable limitation periods begin to run.
ARTICLE 149 – The statute of limitations begins to run when the claim becomes due. In cases where the due date of the claim depends on a notification, the statute of limitations starts running from the day the notification can be made.
ARTICLE 151 – When calculating time periods, the day on which the statute of limitations begins is not counted, and the statute of limitations is only completed when the last day of the period passes without the right being exercised. The provisions regarding the calculation of time periods for the performance of obligations also apply to the calculation of limitation periods.
THE NATURE OF THE STATUTE OF LIMITATIONS IN SIMPLE CLAIMS
As previously stated, the statute of limitations periods regulated under the Turkish Code of Obligations do not terminate the claim itself but rather end the possibility of pursuing a lawsuit related to the claim. However, in lawsuits related to a claim, the statute of limitations can only be used if the parties raise it as a defense. The court does not automatically consider the statute of limitations for the claim; it is only investigated and relied upon if the parties bring it up.
The party that claims the statute of limitations has expired asserts it as a defense in court, and if the court, based on the presented evidence, concludes that the claim has indeed expired under the statute of limitations, it will issue a ruling acknowledging the expiration. This ruling does not eliminate the claim but transforms it into an incomplete debt. An incomplete debt does not eliminate the possibility of performance, but due to the statute of limitations, it removes the ability to enforce the claim through legal means.
CIRCUMSTANCES THAT SUSPEND THE STATUTE OF LIMITATIONS
The suspension of the statute of limitations is regulated by law as situations where the statute of limitations either does not begin if it has not already started, or where its running is suspended if it has already begun. The suspension of the statute of limitations is regulated under Article 153 of the Turkish Code of Obligations (TCO) and occurs only under the conditions specified.
ARTICLE 153-
The statute of limitations does not begin to run, or if it has already begun, it is suspended in the following cases:
1. During the custody period, for claims of children against their parents.
2. During the guardianship period, for claims of those under guardianship against the guardian or for claims against the State arising from guardianship procedures.
3. As long as the marriage continues, for claims between spouses.
4. During the employment relationship, for claims of domestic workers against their employers.
5. As long as the debtor has the right of usufruct over the claim.
6. As long as it is not possible to assert the claim in Turkish courts.
7. In the case of the merger of the creditor and debtor in the same person, for the period until the merger is annulled with retroactive effect in the future.
The statute of limitations begins to run again at the end of the day when the reasons for its suspension cease to exist, or it continues to run without interruption if it had already started before the suspension.
The periods that suspend the statute of limitations are explicitly listed by law and only apply under these specific conditions. Once the situation that suspended the statute of limitations is resolved, the statute of limitations continues from where it left off; it does not restart. Any statute of limitations time that had already passed before the suspension remains valid, and after the suspension ends, the statute of limitations resumes from where it had stopped.
INTERRUPTION OF THE STATUTE OF LIMITATIONS FOR CLAIMS
The interruption of the statute of limitations for claims is regulated under Article 154 of the Turkish Code of Obligations (TCO). Unlike suspension, the interruption of the statute of limitations completely halts the running of the time period.
ARTICLE 154-
The statute of limitations is interrupted in the following cases:
1. If the debtor acknowledges the debt, especially by paying interest, making partial payment, providing collateral, or offering a guarantor.
2. If the creditor has approached the court or arbitrator through a lawsuit or defense, initiated enforcement proceedings, or applied to the bankruptcy trustee.
If the situations specified by the legal provision occur, the statute of limitations for the claim is considered to have been interrupted, and a new period begins to run. The new period is always ten years if the debt has been acknowledged through a written agreement or has been subject to a court or arbitrator’s decision. In other cases, after the process ends, the statute of limitations resumes based on the reason that it was interrupted. However, if the lawsuit or defense has been rejected due to the court being incompetent or lacking jurisdiction, a correctable error being made, or the lawsuit being filed prematurely, and in the meantime, the statute of limitations or a preclusive period has expired, the creditor may exercise their rights within an additional sixty-day period.
WAIVER OF THE STATUTE OF LIMITATIONS
The creditor’s waiver of the statute of limitations cannot occur before the statute of limitations period begins. Even if the creditor waives the statute of limitations before the limitation period starts, that is, before the claim becomes due, the waiver of the statute of limitations will not have any effect, as it is deemed invalid because it was made before the statute of limitations period began.
ARTICLE 160-
Waiver of the statute of limitations cannot be made in advance.
If one of the joint debtors has waived, this cannot be asserted against the other debtors.
The same rule applies if one of the debtors of an indivisible debt has waived.
The waiver of the principal debtor cannot be asserted against the guarantor.
EXEMPLAR COURT OF CASSATION DECISIONS REGARDING THE STATUTE OF LIMITATIONS IN SIMPLE CLAIMS
Turkish Court of Cassation 3rd Civil Chamber
Case No: 2019/5120 Decision No: 2019/8766 Decision Date: 05.11.2019
Civil Court of First Instance
Following the trial of the debt collection case between the parties, the court issued a judgment stating that no decision could be made regarding the case, which had become moot. After the defendant’s attorney filed an appeal within the prescribed period, the appeal petition was accepted. The papers in the file were read, and the following decision was made:
COURT OF CASSATION DECISION
The plaintiff claims that the defendant is a permanent lawyer employed by the General Directorate of Foundations and that excessive legal fees have been paid to the defendant beyond the limits set by law. The plaintiff argues that the payment of these fees was made without justification and requests the reimbursement of 18,529.16 TL with interest from the payment date.
The defendant raised the plea of statute of limitations and, on the merits, argued that the legal fees in question were paid by the plaintiff administration under instructions, and thus, no interest should be demanded, and the tax paid to the Ministry of Finance could not be requested back. The defendant requested the rejection of the case.
The court, after the appeal by the plaintiff against the decision to reject the case, ruled based on the following reasoning from the Court of Cassation’s judgment dated 03/02/2011 (Case No. 2010/17984 E., 2011/1576 K.):
“…Article 146 of Law No. 657 regarding attorney fees is considered a “special law” as per Article 164 of Law No. 1136. Therefore, unless a specific regulation regarding attorney fees for institutional lawyers is made in Law No. 657, it is not possible to remove the limitation introduced by the amendment in Law No. 4667 in the Attorneyship Law, which would apply to public institution lawyers and the legal fees paid to the plaintiff. The court should have accepted the claim regarding the excess amount paid to the defendant under the provisions of the mentioned Article 146, rather than rejecting it. Additionally, under Article 66 of the Turkish Code of Obligations, “a claim based on unjust acquisition of property becomes invalid after ten years from the date the injured party became aware of it.” According to this provision, the starting point for the statute of limitations is the “date of knowledge.” In legal entities, particularly in public institutions, the date of knowledge is determined according to the authorized body of the institution. Thus, the court should have determined the competent body to issue instructions for filing a lawsuit and the date on which this body became aware, and made a decision accordingly.” Based on this reasoning, the judgment was overturned, and the request for a revision was rejected by the Court of Cassation’s ruling (Case No. 2011/14141 E., 2011/19329 K.).
Following the retrial based on the judgment of the Court of Cassation, the court ruled in favor of the plaintiff, ordering the defendant to pay the excess amount of 18,529.16 TL with interest from the date of the lawsuit (29/09/2009). During the trial, the amounts deducted from the defendant’s payments by the plaintiff, totaling 15,447.50 TL, were also deducted from the debt owed by the defendant.
The defendant appealed this decision, and the Court of Cassation, with its judgment dated 05/07/2018 (Case No. 2016/20597 E., 2018/7660 K.), decided as follows:
2- It was understood that the calculated amount includes income tax paid to the tax office by the plaintiff administration. The defendant did not enrich themselves due to the income tax mistakenly paid to the tax office, nor did they make any mistake in the payment. Given that the plaintiff administration could request the return of the wrongly paid income tax, the defendant should not have been held responsible for the tax amount. This part of the judgment was found to be incorrect, and the case was overturned.
3- It was found that 15,447.50 TL had been deducted from the defendant’s subsequent legal fees during the proceedings, and that the claim concerning this amount had become moot. Therefore, instead of making a ruling regarding the claim that had become moot due to this deduction, the decision was found to be incorrect and was overturned. After the retrial, in accordance with the judgment of the Court of Cassation, the court found that during the course of the trial, 15,447.50 TL had been offset, making the case moot regarding this amount. As a result, the court ruled that there was no need to make a decision on the merits of the claim for this amount. Regarding the claim of 3,081.60 TL in taxes, the defendant was found not responsible, as the plaintiff administration could always request the return of this amount from the relevant institution. Therefore, the request was rejected.
Based on payments and offsets made during the trial, the court ruled as follows:
- For 6,003.94 TL, which was offset on 05/02/2010, the legal interest from 29/09/2009 to 05/02/2010 will be collected from the defendant and paid to the plaintiff.
- For 6,508.84 TL, which was offset on 24/03/2011, the legal interest from 29/09/2009 to 24/03/2011 will be collected from the defendant and paid to the plaintiff.
- For 2,934.72 TL, which was offset on 02/01/2012, the legal interest from 29/09/2009 to 02/01/2012 will be collected from the defendant and paid to the plaintiff.
Furthermore, the court also ruled that a court fee of 703.47 TL should be paid by the defendant, with the offset of the 250.20 TL already paid, leaving a balance of 453.27 TL, which was to be collected from the defendant and recorded as state revenue.
The judgment was appealed by the defendant, and the court examined the appeal.
- The defendant’s other objections outside the scope of the below points were found to be without merit.
- According to Article 331 of the Civil Procedure Code No. 6100, in cases where a lawsuit becomes moot, the judge must assess the legal costs based on the parties’ rights at the time the case was filed. In this case, since the plaintiff was right at the time of filing the lawsuit, and the claim became moot due to offsets, the court should have applied a fixed court fee instead of a proportional one, as the case no longer had a specific amount in dispute. Therefore, the court’s initial decision to apply a proportional fee was incorrect, and it was necessary to correct the judgment. However, this error did not require a new trial, so the judgment was corrected and upheld as per Article 438/7 of the Civil Procedure Code.
CONCLUSION:
For the reasons explained in the first paragraph, the defendant’s other appeals were rejected. For the reasons in the second paragraph, the defendant’s appeal was accepted, and the part of the ruling regarding the court fee was amended. The expression “The payment made by the defendant during the trial means accepting the case” was removed from the judgment, and instead, it was written that “The 35.90 TL court fee should be collected from the defendant and recorded as state revenue.” The judgment was corrected and upheld. The prepaid appeal fee will be refunded to the appellant if requested. As per the transition provision of Article 3 of the Civil Procedure Code No. 6100, the right to appeal the decision is closed, and the final judgment was made unanimously on 05/11/2019.
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