1. INTRODUCTION
Upon the entry into force of the Code of Civil Procedure Nr. 6100 in 2011, one of the most significant innovations introduced into Turkish civil procedural law was the action for an unliquidated claim, set out under Article 107 of the Code of Civil Procedure (“CCP”). This type of action, which allows a creditor who is unable to determine the exact amount or value of its claim at the time of filing the action to initiate proceedings by indicating the underlying legal relationship and a minimum amount, and subsequently to increase the amount claimed without being subject to the prohibition on extending or altering the claim, has been the subject of extensive debate in practice and legal doctrine throughout the approximately fifteen years during which it remained in force.
With the legislative amendment publicly known as the “12th Judicial Package,” which has been adopted by the Grand National Assembly of Türkiye and enacted into law and will enter into force upon its publication in the Official Journal, the action for an unliquidated claim is abolished in its entirety. At the same time, a new mechanism for “increasing the claim” in partial actions is introduced through an additional paragraph to Article 109 of the CCP. Under the new provision, with respect to the increased portion of the claim in a partial action, the limitation period will be deemed to have been interrupted as of the date on which the action was filed. The legislative rationale states that the action for an unliquidated claim has been abolished due to problems arising in practice and that, as a result of introducing the possibility of increasing the claim in partial actions, the legal benefit previously afforded by an action for an unliquidated claim will instead be achieved through a partial action. The provision of Article 107 of the CCP governing actions for unliquidated claims will, however, continue to apply to actions filed before the date on which its repeal takes effect.
This study will first provide an overview of actions for unliquidated claims and partial actions, as well as the principal differences between these two types of actions. It will then examine the process leading to the abolition of actions for unliquidated claims and the reasons for their abolition. The primary focus of the study will be the newly introduced mechanism for increasing the claim in partial actions and, in particular, one of the most significant issues that this mechanism is likely to give rise to in practice: determining the date from which interest accrues on the increased portion of the claim. As the amendment has not yet entered into force, there is currently no judicial precedent concerning the increase of claims in partial actions. Nevertheless, the issue of the commencement date for interest will be addressed by analogy with the established case law of the Court of Cassation concerning the increase of claims in actions for unliquidated claims.
2. GENERAL OVERVIEW OF PARTIAL ACTIONS AND ACTIONS FOR UNLIQUIDATED CLAIMS
2.1. Partial Actions
A partial action is a type of action in which the claimant brings proceedings in respect of only a portion of a divisible claim arising from the same legal relationship, while reserving the right to assert and pursue the remaining portion at a later stage. Although not expressly set out by law under the former Code of Civil Procedure Nr. 1086, partial actions were widely recognized and applied in practice and were given an explicit statutory basis for the first time under Article 109 of the CCP.
The Grand General Assembly for the Unification of Judgments of the Court of Cassation has held that, for an action to qualify as a partial action, the entire claim must arise from the same legal relationship and only a portion of the claim must be asserted for the time being. It has further held that the divisibility of the subject matter of the claim is sufficient for a partial action to be brought and that it is not necessary to expressly state in the petition that the action is a partial action [1]. In practice, a claimant’s reservation of its “rights with respect to the excess” or statement that it is, for the time being, claiming a specified amount of the claim is considered sufficient for the action to be characterized as a partial action [2]. Pursuant to Article 109(3) of the CCP, bringing a partial action does not, unless the remaining portion of the subject matter of the claim is expressly waived, constitute a waiver of the unasserted portion.
Prior to the new regulation introduced by the 12th Judicial Package, a claimant who brought a partial action could recover the portion of the claim reserved as the excess only by bringing a separate additional action or by seeking amendment within the same proceedings. Under the new regulation, however, as explained below, the claimant will be able to include the reserved portion of the claim in the pending action by increasing the amount claimed, without having to resort to amendment.
2.2. Action for an Unliquidated Claim
Pursuant to former Article 107(1) of the CCP, where the creditor could not reasonably be expected to determine the exact amount or value of the claim at the time the action was filed, or where such determination was impossible, the creditor could bring an action for an unliquidated claim by indicating the underlying legal relationship and a minimum amount or value. Under paragraph 2 of the same Article, once it became possible to determine the exact amount of the claim, the claimant could increase the amount claimed as initially stated in the action without being subject to the prohibition on extending the claim. This provision constituted an exception to the requirement under Article 119/1-ğ of the CCP to clearly specify the relief sought in the statement of claim.
The Court of Cassation has required two elements for an action for an unliquidated claim to be brought: one objective and the other subjective. The objective element is the objective impossibility of determining the amount of the claim or the value of the action, while the subjective element is that the claimant cannot reasonably be expected to determine the amount at issue [3]. Since an action for an unliquidated claim is an exceptional type of action, it has been accepted that the claimant must expressly indicate under the statement of claim that the action is being brought as an action for an unliquidated claim [4].
2.3. Key Differences Between the Two Types of Actions: Limitation Period and Commencement of Interest
The most significant practical difference between an action for an unliquidated claim and a partial action arose in relation to the interruption of the limitation period and the commencement of interest. In an action for an unliquidated claim, the filing of the action interrupted the limitation period not only with respect to the minimum amount stated under the statement of claim, but with respect to the entire claim. In a partial action, by contrast, the limitation period was interrupted only with respect to the portion of the claim asserted in the action and continued to run with respect to the portion reserved by the claimant.
A similar distinction applied with respect to the commencement of interest. According to the established case law of the General Assembly of Civil Chambers of the Court of Cassation, in an action for an unliquidated claim, where the defendant had not previously been placed in default, interest accrued on the entire claim, including the portion subsequently added to the action through an increase in the amount claimed, as of the date on which the action was filed. In a partial action, by contrast, interest accrued on the amount initially claimed as of the date of filing and on the portion subsequently incorporated into the action by way of amendment as of the date of the amendment. Decision, dated 14.01.2020 and bearing the Basis number 2016/1107 and the Decision number 2020/16, of the General Assembly of Civil Chambers of the Court of Cassation reads as follows:
“As explained above, in an action for an unliquidated claim, the limitation period is interrupted for the entire claim upon the filing of the action, whereas in a partial action, it is interrupted only with respect to the portion of the claim asserted in the action. On the other hand, in an action for an unliquidated claim, where the defendant has not previously been placed in default, interest on the entire claim accrues as of the date of filing, whereas in a partial action, interest accrues on the amount initially claimed as of the date of filing and on the portion subsequently incorporated into the action by way of amendment as of the date of the amendment.” [5]
Indeed, in another decision, the General Assembly of Civil Chambers held that the substantive and procedural legal effects arising from the filing of an action for an unliquidated claim also apply to the amounts subsequently increased, and accordingly found it appropriate for interest to accrue, as of the date of filing, on the entire claim, including the amounts increased through the petition for increasing the amount claimed [6]. Consistent with this approach, the Court of Cassation has held that, where the defendant had not been placed in default before the date of filing, default with respect to the entire claim whose amount was determined subsequently in an action for an unliquidated claim occurred upon the filing of the action and, therefore, interest should be awarded as of the date of filing [7].
As can be seen, under the system that has now been abolished, an action for an unliquidated claim, where the requisite conditions were satisfied, provided the creditor with significantly more favorable protection than a partial action, both in terms of the interruption of the limitation period and the commencement of interest. Under the new regulation, as explained in detail below, the mechanism for increasing the amount claimed in an action for an unliquidated claim has been made available in partial actions. Accordingly, the disadvantages of partial actions with respect to the limitation period and the commencement of interest have also been eliminated.
3. REASONS FOR THE ABOLITION OF ACTIONS FOR UNLIQUIDATED CLAIMS
The provisions governing actions for unliquidated claims and partial actions were subject to several legislative amendments during the period in which they remained in force. Article 107 of the CCP originally consisted of three paragraphs and was headed “Action for an unliquidated claim and action for declaratory relief”. In addition to the action for an unliquidated claim, the provision also regulated an action for declaratory relief in respect of an unliquidated claim. However, since neither legal scholarship nor practice had reached a clear understanding as to the precise scope of the action for declaratory relief contemplated in the third paragraph, this paragraph was repealed by Law Nr. 7251 in 2020, the possibility of bringing such an action was abolished, and the heading of the provision was changed to “Action for an unliquidated claim”.
With respect to partial actions, Article 109/2 of the CCP, which provided that a partial action could not be brought where the subject matter of the claim was undisputed between the parties or clearly determinable, was repealed by Law Nr. 6644 in 2015 on the ground that, in practice, it had effectively eliminated the right to bring a partial action.
Despite these legislative amendments, the fundamental problems surrounding the action for an unliquidated claim remained unresolved. Throughout its more than ten years of application, the questions of which claims should be regarded as determinate and which as unliquidated, as well as whether the lack of legal interest in an action for an unliquidated claim brought without the requisite conditions being satisfied constitutes a curable deficiency in a condition of action, gave rise to significant disagreements both in legal doctrine and in the decisions of the Court of Cassation.
In its 2018 decision, the Grand General Assembly for the Unification of Judgments of the Court of Cassation likewise left the issue unresolved, holding that a claim cannot be classified as determinate or unliquidated solely by reference to its type, and that this matter must be assessed separately by the courts in light of the circumstances of each individual case. Accordingly, it concluded that there was no need to unify the conflicting case law [8].
The divergence of opinion among the Chambers concerning the fate of an action for an unliquidated claim brought without the requisite conditions being satisfied could only be resolved following the closure of the 22nd Civil Chamber, when the 9th Civil Chamber held that the lack of legal interest was not a curable deficiency in a condition of action and that the action should therefore be dismissed on procedural grounds [9].
However, under the application of İsmail Avcı, the Constitutional Court adopted an approach directly contrary to that of the Court of Cassation, holding that dismissing an action brought as an action for an unliquidated claim without examining its merits, on the ground that a condition of action was lacking, violated the right of access to a court [10]. This approach broadens the scope of actions for unliquidated claims and weakens their exceptional nature.
Against this background, certain scholars have expressly argued that there is no longer a need for the action for an unliquidated claim and that the mechanism should be abolished. YILMAZ argued that the confusion in the case law, which could not be resolved even through a decision on the unification of judgments and which resulted in diametrically opposed final judgments in similar cases, seriously undermined the principle of legal certainty and public confidence in the courts. He further observed that the mechanism, which the legislator had introduced to address an exceptional problem, had deviated from its intended purpose in practice and had come to cause more harm than benefit, and therefore proposed removing Article 107 of the CCP from the respective law [11]. KARAASLAN, for his part, stated that the predictions that the mechanism would entail uncertainty in numerous respects had proved correct and argued that the most appropriate solution would be to regulate actions for unliquidated claims and partial actions in a single provision [12].
Finally, with the 12th Judicial Package, the legislator acted in line with these criticisms and brought an end to actions for unliquidated claims by repealing Article 107 of the CCP in its entirety. The legislative rationale points out that the uncertainties in practice as to which claims may be pursued through this type of action have prolonged proceedings and notes that the Constitutional Court, in its individual application decisions, has found that such uncertainty undermines the right to seek legal remedies. The rationale further states that, through the mechanism for increasing the amount claimed introduced in partial actions, the legal benefit previously afforded by an action for an unliquidated claim will be achieved through a partial action.
Pursuant to the transitional provision introduced by the amendment, pending actions for unliquidated claims that were filed before the amendment entered into force will continue to be heard in accordance with former Article 107 of the CCP.
4. INCREASE OF THE CLAIM IN PARTIAL ACTIONS UNDER THE NEW REGULATION
The 12th Judicial Package seeks to fill the gap created by the abolition of actions for unliquidated claims by strengthening the legal framework for partial actions. Pursuant to the paragraph added to Article 109 of the CCP, where only a portion of a claim is asserted in an action, the claimant may, without resorting to amendment and without being subject to the prohibition on extending the claim, increase the relief sought once only until the conclusion of the examination of the merits and thereby seek the remaining portion of the claim within the same action. The most significant innovation introduced by the new provision is the express stipulation that, with respect to the increased portion of the claim, the limitation period shall be deemed to have been interrupted as of the date on which the action was filed. Thus, the protection afforded to creditors by an action for an unliquidated claim—namely, the interruption of the limitation period for the entire claim as of the date of filing—has been extended to partial actions.
The newly introduced mechanism for increasing the amount claimed must be distinguished from amendment. Amendment is a general procedural mechanism set out under Articles 176 et seq. of the CCP, which enables the parties to correct their procedural acts. Where the subject matter of an action is increased by way of partial amendment, as explained above, interest on the increased portion is, as a rule, awarded as of the date of the amendment. By contrast, an increase in the amount claimed is a special procedural mechanism independently of amendment and expressly granted to the claimant by law. In this respect, the new mechanism is substantively identical to the mechanism for increasing the amount claimed that was previously provided for actions for unliquidated claims under former Article 107/2 of the CCP. In both cases, the claimant may increase the relief sought, without being subject to the prohibition on extending the claim and without requiring either the consent of the opposing party or amendment, provided that the requisite court fee is paid.
The difference lies in the fact that, under the former provision, the possibility of increasing the amount claimed without resorting to amendment was available only to a claimant whose claim was unliquidated, whereas under the new provision, this possibility is granted, once only, to every claimant bringing a partial action, regardless of whether the claim is determinate or unliquidated.
Accordingly, under the new system, a claimant who reserves its rights with respect to the excess may, in the partial action it has brought, have the entire claim adjudicated in the same proceedings by increasing the amount claimed once, without having to resort to amendment. It is therefore clear that the legislator has effectively reconstructed the function of the action for an unliquidated claim within the framework of the partial action.
5. COMMENCEMENT
OF INTEREST ON THE INCREASED PORTION OF THE CLAIM IN PARTIAL ACTIONS
The new regulation expressly provides that, with respect to the increased portion of the claim, the limitation period shall be deemed to have been interrupted as of the date of filing; however, it does not contain an express provision concerning the commencement of interest. The date from which interest accrues may therefore be expected to be one of the issues giving rise to the most significant debate in practice. Nevertheless, this issue can be resolved by reference, by analogy, to the legal nature of the mechanism for increasing the amount claimed and the established case law of the Court of Cassation concerning increases in the amount claimed in actions for unliquidated claims.
As explained under the heading “2.3. Key Differences Between the Two Types of Actions: Limitation Period and Commencement of Interest” of this article, according to the established case law of the Court of Cassation, in a partial action, interest on the portion of the claim increased by way of amendment accrues as of the date of the amendment. In actions for unliquidated claims, however, where the claimant increases the relief sought by way of an increase in the amount claimed without resorting to amendment, interest accrues as of the date of filing (or the date of default).
It should first be noted that the established practice [13], according to which interest on the portion of the claim increased by way of amendment in a partial action accrues only as of the date of the amendment, is based on the legal nature of amendment. Since the portion increased by way of amendment had not been asserted as part of the subject matter of the action until the date of the amendment, the debtor is deemed to have been placed in default with respect to that portion only upon the amendment.
By contrast, as explained above, the newly introduced mechanism for increasing the amount claimed in a partial action is not an amendment. It is a special mechanism incorporated by law into the framework of the partial action itself, extending to the remaining portion of the claim the legal effects attached to the filing of the action, such as the interruption of the limitation period. Accordingly, applying the case law concerning amendment to the new mechanism without any modification would be incompatible with the legal nature of the increase in the amount claimed.
By contrast, the case law concerning the mechanism for increasing the amount claimed under former Article 107/2 of the CCP provides direct guidance with respect to the new mechanism. The General Assembly of Civil Chambers of the Court of Cassation held that, in an action for an unliquidated claim, the substantive and procedural legal effects arising from the filing of the action also apply to the amounts subsequently increased. Accordingly, it held that interest should accrue, as of the date of filing, on the entire claim, including the amounts increased through the petition for increasing the amount claimed [14].
The rationale underlying this case law is not that the claim is unliquidated, but rather that the increase in the amount claimed does not constitute a new action and that the legal effects attached to the filing of the action (including the interruption of the limitation period and default) arise with respect to the entire claim as of the date of filing. Under the new regulation, by expressly providing that the limitation period with respect to the increased portion of the claim shall be deemed to have been interrupted as of the date of filing, the legislator has manifested its intention to extend to the remaining portion of the claim the substantive legal effects attached to the filing of the action.
The approach
adopted with respect to the limitation period should likewise apply to default,
and consequently to interest, as another legal consequence of filing an action.
This is required both by the legal nature of the mechanism for increasing the
amount claimed and by the legislator’s intention.
In light of all the foregoing considerations, it is concluded that, under the new regulation, interest on the portion of the claim increased through the mechanism for increasing the amount claimed in a partial action should accrue in the same manner as under the former regime governing actions for unliquidated claims. Where the claimant had placed the debtor in default before filing the action, interest should accrue on the entire claim, including the portion subsequently increased, as of the date of default. In the absence of such a default, interest should accrue on the entire claim, including the increased portion, as of the date on which the action was filed.
A possible approach that interest may accrue on the increased portion only as of the date of the increase in the amount claimed would, however, be unpersuasive in light of the legal nature of the mechanism for increasing the amount claimed and the legal benefit sought by the legislator through the provision concerning the interruption of the limitation period.
6. CONCLUSION
The 12th Judicial Package represents a significant turning point in Turkish civil procedural law. During the fifteen years in which the action for an unliquidated claim was in force, it was not even possible to establish with certainty which claims could be pursued through this type of action, while profound divergences of opinion emerged among the Chambers of the Court of Cassation and, ultimately, between the Court of Cassation and the Constitutional Court. Consistent with the calls in legal doctrine for its abolition, the action for an unliquidated claim has been repealed, and the legal benefit it afforded to creditors has been incorporated into the framework of the partial action.
The mechanism for increasing the amount claimed introduced by the paragraph added to Article 109 of the CCP is a special procedural mechanism that is independent of amendment, directly granted by law to a claimant bringing a partial action, and may be exercised only once. The provision that the limitation period with respect to the increased portion of the claim shall be deemed to have been interrupted as of the date of filing is a clear indication of the legislator’s intention to extend the legal effects attached to the filing of the action to the entire claim. In light of this legislative intent and the established case law of the Court of Cassation concerning increases in the amount claimed in actions for unliquidated claims under the former regime, interest on the increased portion in a partial action should therefore accrue as of the date of default or, in the absence of prior default, the date on which the action was filed. Nevertheless, following the publication of the amendment in the Official Journal and its entry into force, it will be important to closely monitor how the issues addressed in this article, particularly the commencement of interest, will be shaped by judicial practice.
Osman Serhat Demirci, Legal Intern
References:
1. Decision,
dated 24.05.2019 and bearing the Basis number 2017/8 and the Decision
number 2019/3, of the Grand General Assembly for the Unification of Judgments
of the Court of Cassation
2. Decision,
dated 17.06.2015 and bearing the Basis number 2015/1052 and the Decision
number 2015/1612, of the General Assembly of Civil Chambers of the Court of
Cassation
3. Decision,
dated 11.02.2020 and bearing the Basis number 2016/13162 and the Decision
number 2020/1860, of the 9th Civil Chamber of the Court of Cassation
4. Decision,
dated 07.07.2021 and bearing the Basis number 2021/485 and the Decision number 2021/971,
of the General Assembly of Civil Chambers of the Court of Cassation
5. Decision,
dated 14.01.2020 and bearing the Basis number 2016/1107 and the Decision
number, of the General Assembly of Civil Chambers of the Court of Cassation
6. Decision,
dated 28.02.2018 and bearing the Basis number 2015/3162 and the Decision number
2018/369, of the General Assembly of Civil Chambers of the Court of Cassation
7. Decision,
dated 02.03.2020 and bearing the Basis number 2019/5988 and the Decision number
2020/1845, of the 3rd Civil Chamber of the Court of Cassation
8. Decision,
dated 15.12.2017 and bearing the Basis number 2016/6 and the Decision number 2017/5,
of the Grand General Assembly for the Unification of Judgments of the Court of
Cassation
9. Decision,
dated 14.09.2020 and bearing the Basis number 2016/26476 and the Decision
number 2020/7547, of the 9th Civil Chamber of the Court of Cassation
10. Application
of İsmail Avcı, bearing the Application number 2019/12190 and the date of
Decision 22.02.2022, under the Constitutional Court
11. Yılmaz, Ejder:
"Uygulamada Amacına Ulaşamayan Belirsiz Alacak Davasına İlişkin Hüküm
Yürürlükten Kaldırılmalıdır (“The Provision Governing Actions for
Unliquidated Claims, Which Has Failed to Achieve Its Purpose in Practice,
Should Be Repealed”), Yeditepe University Faculty of Law Review, Vol.
XVIII, 2021/2
12. Karaaslan,
Varol: "Belirsiz Alacak/Kısmi Dava Bir Madalyonun İki Yüzü mü? (“Are
Actions for Unliquidated Claims and Partial Actions Two Sides of the Same Coin?"),
Yeditepe University Faculty of Law Review, Vol. XIII, Issue. 1, 2016, p. 230
13. Decision,
dated 14.01.2020 and bearing the Basis number 2016/1107 and the Decision number
2020/16, of the General Assembly of Civil Chambers of the Court of Cassation.; Decision,
dated 24.01.2018 and bearing the Basis number 2017/2549 and the Decision number
2018/1265, of the 22nd Civil Chamber of the Court of Cassation
14. Decision,
dated 28.02.2018 and bearing the Basis number 2015/3162 and the Decision number
2018/369, of the General Assembly of Civil Chambers of the Court
of Cassation
