1. Introduction
In substantive law, time
limits are divided into statutes of limitation and prescriptions. These periods
constitute fundamental institutions that serve to ensure legal certainty and
stability within the legal system. By virtue of these time limits, the debtor
is protected from being subjected to the threat of indefinite litigation, and
the resolution of disputes within a reasonable timeframe is aimed. However, the
strict and formal application of these time limits may, in some cases, lead to
the extinction of substantive rights without examining their merits. In
particular, the dismissal of a case solely on procedural grounds, coupled with
the expiration of a statute of limitations or prescription during this process,
poses a serious issue regarding the right to seek legal remedies.
Article 158 of the Turkish
Code of Obligations provides an exceptional protective mechanism for such
situations. According to the provision, if a case is dismissed for the reasons set
out under the article and, during this period, the statute of limitations or
prescription has expired, the creditor may assert their right again within an
additional sixty-day period. With this article, the legislator aims to prevent
a procedural dismissal from definitively extinguishing a substantive right.
In this article, the
provision of Article 158 of the Turkish Code of Obligations will be examined;
first, the scope of its application will be analyzed, and subsequently, the
provision will be evaluated in light of the decisions of the Court of Cassation.
2. Scope of Application of
Article 158 of the Turkish Code of Obligations
Pursuant to Article 158, entitled
“Additional Time in Case of Dismissal”, of the Turkish Code of Obligations; “If
a claim or defense is dismissed due to the court lacking jurisdiction or
competence, a correctable error, or being filed prematurely, and in the
meantime the statute of limitations or prescription has expired, the creditor
may exercise their rights within an additional sixty-day period.”
This provision shall apply
when a case is filed before an incompetent or unauthorized court, when it is
dismissed due to a correctable procedural defect, or when it is dismissed on
procedural grounds for being filed prematurely.
Accordingly, for the
provision to be applicable, it is first necessary that a case has been filed
and dismissed, or that a defense raised within a pending case has been rejected.
The provision applies not only when a case is initiated, but also when a
defense is asserted in an existing case. What is important here is that the
claim has been brought before a judicial authority.
Moreover, for the
provision to be applicable, the case must have been dismissed not on the
merits, but for one of the limited reasons set out under the said article.
These reasons include the court’s lack of competence, lack of jurisdiction,
the occurrence of a correctable error, or the premature filing of the case.
Since these reasons are limited in number, dismissals based on the merits of
the case, failure of proof, lack of capacity to sue, or other reasons not
specified in the article cannot be considered within the scope of Article 158
of the Turkish Code of Obligations.
Furthermore, for the
provision to be applicable, the statute of limitations or prescription must
have expired at the time the dismissal decision is rendered. The crucial
point here is that the time limit must have expired during the course of the
dismissal process.
When all the aforementioned
conditions are met, the case must be refiled or the defense must be asserted
again within the sixty-day period prescribed by the article. This period
provides an exceptional and limited opportunity, and if it is exceeded,
reliance on Article 158 of the Turkish Code of Obligations is not possible.
3. Dismissal of a Case Due
to a Correctable Error
Article 158 of the Turkish
Code of Obligations encompasses several scenarios. Specifically, the provision
applies when a case is filed before an incompetent or unauthorized court, when
it is dismissed due to a correctable procedural defect, or when it is dismissed
on procedural grounds for being filed prematurely. The dismissal due to a
correctable defect refers to the rejection of a case because certain elements
required at the time of filing were incomplete. The most significant example of
this is the absence of required conditions of action. [1]
If the plaintiff files a
case without fulfilling the conditions of action prescribed in Article 114 of
the Code of Civil Procedure, two scenarios may arise. If the missing condition
of action is capable of being completed subsequently, the court may grant the
plaintiff a period to remedy the deficiency; if the deficiency is corrected
within this period, the proceedings continue. Conversely, if the plaintiff
fails to remedy the deficiency within the granted period, the case is dismissed
on procedural grounds. In such a situation, provided that the other conditions
are also met, Article 158 of the Turkish Code of Obligations becomes
applicable.
An examination of the Court
of Cassation’s decisions concerning the application of Article 158 of the
Turkish Code of Obligations shows that the concept of a correctable error has
not been interpreted narrowly. In various decisions, it has been held that the
sixty-day additional period can be applied in cases such as: the dismissal of a
case because it was not filed by the authorized company auditors with active
litigation capacity (the Decision, dated 02.06.1975, and bearing the
Basis number 5185 and the Decision number 3636, of the 11th Civil
Chamber of the Court of Cassation); the case being considered as not
filed due to failure to remedy deficiencies in the petition (the
Decision, bearing the Basis number 2015/3454 and the Decision number 2015/5769
and dated 25.05.2015, of the 14th Civil Chamber of the Court of
Cassation); the finalization of a case filed without payment of fees (the
Decision, bearing the Basis number 2011/7947 and the Decision number 2011/8288
and dated 13.07.2011, the 4th Civil Chamber of the Court of
Cassation); and the dismissal of a counterclaim for not being filed
within the response period (the Decision, dated 11.04.1983, and bearing
the Basis number 1983/3638 and the Decision number 1983/3538, the 3rd
Civil Chamber of the Court of Cassation). The fact that the additional
period may be applied even in cases of lack of active litigation capacity is
significant, as it demonstrates a broad interpretation of the concept of a “correctable
error”. [2]
When these decisions are
evaluated together, it is understood that the concept of a “correctable error”
is not interpreted narrowly as being limited solely to formal deficiencies;
rather, it is construed to include procedural defects that prevent
consideration of the merits of the case but can subsequently be remedied. At
the same time, it is accepted as a decisive criterion that the error must not
relate to the merits, and that the merits of the case become examinable once
the deficiency is corrected. Accordingly, the purpose of Article 158 of the
Turkish Code of Obligations is to prevent the extinction of substantive rights
due to procedural deficiencies; this provision serves as an exceptional
safeguard protecting the right to seek legal remedies. Within this framework,
in cases where a lawsuit is dismissed due to a correctable procedural defect,
the sixty-day additional period granted to the creditor—when the statute of
limitations or prescription has expired—constitutes an important supplementary
protective mechanism, allowing the assertion of substantive rights.
4. Application of Article
158 of the Turkish Code of Obligations in Light of Court of Cassation Decisions
The conditions for the
application of Article 158, and particularly the scope of procedural
deficiencies that are correctable, are concretized through Court of Cassation
decisions. An examination of these decisions shows that the purpose of the
provision is to prevent the loss of rights arising from procedural reasons, and
therefore, it is emphasized that courts must assess whether the additional
period should be applied.
Indeed, under its
decision, dated 13.09.2018 and bearing the Basis number 2018/4346 and the
Decision number 2018/8508, the 3rd Civil Chamber of the Court
of Cassation stated that, following the dismissal of an annulment objection
case on jurisdictional grounds, although the plaintiff filed subsequent actions
before different authorities and the last action was filed after the prescription
period had expired, it was procedurally and legally incorrect for the court to
examine the merits without first determining whether the sixty-day additional
period under Article 158 of the Turkish Code of Obligations had been applied.
The Chamber annulled the decision, emphasizing that it must first be
established whether the case was filed within the additional period. This
ruling demonstrates that, following dismissals on grounds of jurisdiction or
competence, Article 158 must be considered ex officio.
Likewise, under the
decision, dated 07.12.2020 and bearing the Basis number 2016/18207 and the
Decision number 2020/8130, of the
(now-closed) 14th Civil Chamber of the Court of Cassation, it
was held that a case refiled within the sixty-day period following a procedural
dismissal due to the lack of capacity to sue falls under the scope of Article
158 of the Turkish Code of Obligations. The decision stated that, when a case
is terminated due to a correctable procedural defect without examining the
merits, and the period expires during this process, granting an additional
period to the creditor is a natural consequence of the provision’s purpose.
Under its decision, dated
25.01.2024 and bearing the Basis number 2023/16578 and the Decision number
2024/1424, the 9th Civil Chamber of the Court of Cassation clearly articulated the purpose of
applying Article 158 of the Turkish Code of Obligations. The Chamber emphasized
that, within the legal system, the provision grants the creditor a sixty-day
additional period in order to prevent potential hardships arising from the
expiration of the statute of limitations or prescription due to procedural
dismissal of a case. In the present case, it was determined that the annulment
action filed following the employee’s objection to debt enforcement proceedings
was dismissed on procedural grounds due to the absence of the mediation
prerequisite; after the decision became final, the plaintiff applied to the
mediator and, following the preparation of the mediation report, refiled the
case. The Court of Cassation noted that the new case was filed within the
sixty-day period prescribed by Article 158 of the Turkish Code of Obligations,
calculated from the finalization of the previous dismissal decision, and found
it erroneous for the Regional Court of Justice to have dismissed the case
instead of examining the merits. This ruling is significant as it demonstrates
that procedural dismissals due to the absence of the mediation prerequisite
must also be considered within the scope of Article 158, provided that the
other conditions are met.
Similarly, under its
decision dated 24.10.2019 and bearing the Basis number 2019/7815 and the
Decision number 2019/19996, the 22nd Civil Chamber of the Court of
Cassation interpreted the concept of a “correctable error” broadly. In the present
case, the action concerning employment receivables was dismissed on procedural
grounds due to lack of legal interest, on the basis that it could not be filed
as an unquantified claim action; following the affirmation of the dismissal
decision, the plaintiff refiled the case within the sixty-day period prescribed
by Article 158 of the Turkish Code of Obligations. The Chamber held that a
dismissal based on lack of legal interest constitutes a correctable procedural
defect and therefore must be assessed within the scope of Article 158. Accordingly,
it was stated that, in a case refiled within the additional period, the statute
of limitations must be assessed with reference to the date of the initial
action; any assessment to the contrary was deemed a ground for reversal. The
decision constitutes an important precedent reinforcing the protective function
of Article 158 of the Turkish Code of Obligations with respect to the right to
seek legal remedies, as it emphasizes that dismissals based on lack of legal
interest do not give rise to res judicata and that the additional period
may be relied upon in a subsequently filed action based on the same claims.
When these decisions are
evaluated together, it becomes apparent that the Court of Cassation has adopted
the following principles in the application of Article 158 of the Turkish Code
of Obligations:
- The dismissal must be procedural
in nature and must not relate to the merits of the case.
- The ground for dismissal must be
capable of being remedied.
- The statute of limitations or
prescription must have expired during the dismissal process.
- The new action must be filed
within sixty days from the finalization of the dismissal decision.
- The court must examine ex
officio whether the conditions for the application of the additional
period are satisfied.
As can be seen, the
practice of the Court of Cassation tends to interpret Article 158 of the
Turkish Code of Obligations not in a narrow and formalistic manner, but in line
with its purpose of safeguarding the right to seek legal remedies. In
particular, it is consistently recognized that, where a case is terminated due
to a remediable procedural defect, the creditor should be provided with the
opportunity to assert their substantive right.
5. Conclusion
Article 158 of the Turkish
Code of Obligations constitutes an exceptional protective mechanism aimed at
preventing the loss of rights that may arise when a case is dismissed on
procedural grounds and the statute of limitations or prescription expires during
this process.
For the provision to be
applicable, the case or the defense must have been dismissed on grounds of lack
of jurisdiction or competence, the presence of a correctable procedural error,
or the premature filing of the action. In addition, the statute of limitations
or prescription must have expired during the dismissal process, and the
creditor must refile the action within sixty days from the finalization of the
dismissal decision. This period does not create a new right; rather, it
constitutes a complementary opportunity enabling the assertion of an existing
right.
In particular, the concept
of a “correctable error” constitutes a decisive and, at the same time,
controversial area in practice. The case law of the Court of Cassation
demonstrates that this concept is not interpreted in a narrow or formalistic
manner, but rather broadly so as to encompass procedural deficiencies that
prevent examination of the merits and are capable of being remedied
subsequently. The recognition that the additional period may be applied in
cases such as deficiencies in causes of action, failure to pay court fees, lack
of capacity to sue, lack of the mediation prerequisite, or lack of legal
interest strengthens the provision’s function of safeguarding the right to seek
legal remedies.
Furthermore, Court of
Cassation decisions indicate that the application of Article 158 must be
assessed ex officio by the judge, and whether the additional period
should be applied must be examined meticulously in light of the specific
circumstances of each case. This approach is significant in preventing unjust
outcomes that may arise due to procedural deficiencies.
In conclusion, Article 158
of the Turkish Code of Obligations constitutes an important safeguard that
balances the formalism of procedural law and aims to protect substantive
rights. In practice, interpreting the provision in accordance with its purpose—by
accurately identifying the nature of the dismissal and assessing, on a
case-by-case basis, whether the deficiency is remediable—plays a decisive role
in preventing the loss of rights.
Att. Ezgi Karpınar
References:
1. Makbule Serra
Korkut, “Türk Borçlar Kanunu’nun 158. Maddesinin Medenî Usûl Hukuku Bakımından
Değerlendirilmesi (Evaluation of Article
158 of the Turkish Code of Obligations from the Perspective of Civil Procedure
Law)”,
The Turkish-German University Law Faculty Journal, 2021, Vol.3, Issue: 1, p.116.
2.
Mustafa Alp, “Belirsiz Alacak Davasının Usulden Reddi Üzerine TBK Madde
158 Uyarınca Ek Süre İçinde Dava Açılabilmesi – Yargıtay Karar İncelemesi (Filing a Case Within the Additional
Period under Article 158 of the Turkish Code of Obligations Following
Procedural Dismissal of an Unquantified Claim Action – Review of Court of
Cassation Decisions)–”, Sicil Journal of Labor Law, 2021, Issue: 45, p.220.
