1. INTRODUCTION
First, the meaning of the term “terdit”
(alternative claims) should be examined. The term “terdit” is of Arabic
origin and refers to the expression of an idea through two alternative
possibilities. In civil procedure law, the concept of “terdit” likewise
denotes the assertion of claims in an alternative order. In order for an action
to qualify as one involving alternative claims, there must be more than one
claim asserted within the same proceedings. Furthermore, the examination of the
subsequent claim must be contingent upon the court’s acceptance or rejection of
the first (principal) claim.
2. WHAT IS AN ACTION WITH ALTERNATIVE
CLAIMS?
Actions with alternative claims are
set out under Article 111 of the Code of Civil Procedure. The provision reads
as follows:
“(1)The claimant may assert multiple
claims against the same defendant in a single statement of claim by
establishing a principal–alternative relationship between those claims. To do
so, a legal or economic connection must exist between the claims.
(2) The
court may not examine or rule on the alternative claim unless it has rendered a
decision rejecting the claimant’s principal claim on the merits.”
According to this provision, in order
to bring an action with alternative claims, the claimant must assert more than
one claim against the same defendant. However, the facts pleaded in support of
the alternative claims must not be mutually contradictory.[1] In addition, a principal–alternative
relationship must exist between the claims. Pursuant to this relationship, the principal
claim must be asserted first, followed by the alternative claim. Where multiple
claims are advanced, it must be determined whether a legal or economic
connection exists between them. At least one such connection—either legal or
economic—must be present. Once these requirements are satisfied, the claimant
may assert multiple claims under a single statement of claim.
In actions with alternative claims,
the claimant generally bases the claims on the same factual grounds or the same
legal basis. Even where the claims are founded on different facts or legal
grounds, what is essential is the existence of an economic or legal connection
between them. In other words, the claims are expected to pursue the same
objective. Although the factual circumstances or legal bases underlying the
claims may differ, they may still be asserted in the form of alternative
claims. What changes, in such cases, is merely the factual matrix and the
corresponding legal basis. However, a connection between the claims is
indispensable; entirely unrelated claims cannot be brought as alternative
claims, otherwise the court would be required to order severance of the claims.
[2]
An action with alternative claims
should not be regarded as a conditional action. This is because a conditional
judgment is not permissible either. Through this procedural mechanism, the
claimant arranges the claims in a hierarchical order. The claimant primarily
specifies the principal claim. Unless the principal claim is dismissed with
prejudice, the alternative claim is neither examined nor adjudicated. In other
words, no judicial assessment is carried out, and no decision is rendered in
respect of the alternative claim. In essence, the alternative claim functions
as a subsidiary claim, brought in anticipation of the possible dismissal of the
principal claim. Moreover, it is not possible for the court to reverse the
order of the principal and alternative claims and rule on the subsidiary claim
first.[2]
In its case-law, the Court of
Cassation also holds that, in an action with alternative claims, the court is
required to render a positive or negative decision in respect of the claimant’s
principal claim in the first instance. Accordingly, the alternative claims are
to be examined only if the principal claim is dismissed. A separate judgment is
not rendered for each claim. Instead, the court either rules on the principal
claim or, where the principal claim is dismissed, renders a judgment on the
alternative claim. Pursuant to the principle of being bound by the claim, the
judge may not adjudicate both claims simultaneously or grant relief beyond what
has been requested. The judge is limited to assessing either the principal
claim or, if it is rejected, the alternative claim, and arriving at a single
conclusion. In this respect, there is ultimately a single judgment that depends
on either the principal or the alternative claim.
The court first
conducts its examination on the basis of the principal claim and, if it
dismisses that claim with prejudice, proceeds to examine and adjudicate the
alternative claim. However, in an action with alternative claims, if the
principal claim is dismissed but the alternative claim is not examined and no
positive or negative decision is rendered in respect thereof, a procedural
deficiency arises in relation to the alternative claim. Such a deficiency in
the court’s decision is characterized as a gap in the judgment. In this case,
the alternative claim may be made subject to an application for completion of
the judgment.[3] The claimant may seek completion of the judgment on the ground
that the ruling in respect of the alternative claim is not sufficiently clear
and gives rise to uncertainty in its enforcement.
With respect to
litigation costs, if the principal claim is partially or entirely dismissed,
the court proceeds to examine the alternative claim. In this context, the Court
of Cassation has held that, in an action with alternative claims, there is no
partial dismissal in respect of the claim that is ultimately rejected, and
therefore no obligation arises to award costs to the opposing party in relation
to that claim.[4] In a staged action, the claims are examined in a
predetermined order. Pursuant to Article 111 of the Code of Civil Procedure, if
the principal claim is dismissed, the alternative claim is examined. Where the
alternative claim is upheld, attorney’s fees should not be awarded in favor of
the opposing party in respect of the dismissed principal claim. Under its
judgment, dated 06/10/2022 and bearing the Basis number 2021/5570 and the
Decision number 2022/4606, the 6th Civil Chamber of the Court of
Cassation held that “[…] the dismissal of one or several of the
asserted claims does not require the award of attorney’s fees in favor of the
opposing party unless all staged claims are dismissed.”
One of the most
significant aspects of the actions with alternative claims in the case-law of
the Court of Cassation is that the judge may not interfere with the ranking of
claims established by the claimant. Indeed, in the jurisprudence of the supreme
court, it is emphasized that the judge cannot alter the order of priority
determined by the claimant and may not directly examine the alternative claim
without first rendering a decision on the principal claim. Any contrary
approach would constitute a violation of the principle of being bound by the
claim, as set out under Article 26 of the Code of Civil Procedure. For this
reason, the judge is obliged to respect the hierarchical structure of the
claims.
It should also be
noted that, once an action with alternative claims is filed, the statute of
limitations is suspended in respect of both the principal and the alternative
claim. Both the principal and the alternative claims become pending. With
respect to court fees, in actions with alternative claims, the fee is
calculated on the basis of the claim with the higher value.
The effect of the
statute of limitations in actions with alternative claims is of particular
importance in practice. This is because, where the principal claim is
dismissed, the question of whether the alternative claim has become time-barred
may give rise to controversy. According to the prevailing view in doctrine and
practice, the filing of an action with alternative claims interrupts the
statute of limitations in respect of both the principal and the alternative
claim, and both claims become pending before the court. If a contrary approach
were accepted, the claimant could suffer a loss of rights in respect of the
second claim asserted on a contingent basis. For this reason, the purpose of
Article 111 of the Code of Civil Procedure is to enable the claimant to assert
claims within a framework of legal certainty.
3. DIFFERENCES
BETWEEN ACTIONS WITH ALTERNATIVE CLAIMS AND SIMILAR TYPES OF ACTIONS
An action with
alternative claims is frequently confused in practice with the concepts of
objective joinder of claims, elective actions, and alternative obligations.
However, there are significant differences between these legal concepts.
In the objective
joinder of claims, the claimant asserts multiple independent claims against the
same defendant under a single action, and the court assesses each claim
separately. By contrast, in an action with alternative claims, there is a
hierarchical relationship of priority between the claims, and the court may
examine the alternative claim only if the principal claim is dismissed.
In elective actions,
the claimant is entitled to choose any one of several claims, whereas in
actions with alternative claims the claims are arranged in a hierarchical
order. Accordingly, the essence of an action with alternative claims lies in
the hierarchical system of examination established between the claims.
4. PRACTICAL
PROBLEMS ENCOUNTERED IN ACTIONS WITH ALTERNATIVE CLAIMS
One of the primary
practical issues encountered in actions with alternative claims is the
incorrect structuring of the relationship between claims. In practice,
claimants sometimes assert claims in an alternative manner even though there is
no legal or economic connection between them. In such cases, the court may be
required to sever the claims or undertake an assessment on procedural grounds.
In addition, courts’
examination of the alternative claim without expressly dismissing the principal
claim constitutes one of the grounds for reversal in practice. Accordingly, the
correct structuring of the relationship between claims in actions with alternative
claims is of particular importance in terms of procedural economy.
5. CONCLUSION
An action with
alternative claims is a special type of action set out under Article 111 of the
Code of Civil Procedure, which enables the claimant to assert multiple claims
in a hierarchical manner. In this type of action, a principal–alternative
relationship is established between the claims, and the court first examines
the principal claim. If the principal claim is dismissed, the alternative claim
is then examined. In this way, the claimant is able to secure multiple
contingencies under the same legal dispute. Actions with alternative claims
serve the principle of procedural economy and prevents the initiation of
unnecessary proceedings. However, for the proper application of this type of
action, it is necessary that there exists a legal or economic connection
between the claims, that the claims are correctly ordered, and that the judge
acts in accordance with the principle of being bound by the claim. The case-law
of the Court of Cassation consistently upholds these features of actions with
alternative claims. For this reason, actions with alternative claims constitute
an important procedural mechanism that both prevents the loss of rights of the
parties and ensures the efficient conduct of proceedings.
Fatma Şengün, Legal
Intern
References:
1. Dr. Meltem ERCAN ÖZLER, Medeni Usul Hukuku’nda Dava
Konusu (The Subject Matter of an Action in Civil Procedure Law), December
2019, p.359
2. Dr. Meltem ERCAN ÖZLER, Medeni Usul Hukuku’nda Dava
Konusu (The Subject Matter of an Action in Civil Procedure Law), December
2019, p.360
3. Burcu Çavuş, Medeni Usul Hukukunda Hükmün
Tamamlanması (Completion of Judgments in Civil Procedure Law), September
2022, p.190
4. Dr. Meltem ERCAN ÖZLER, Medeni Usul Hukuku’nda Dava
Konusu (The Subject Matter of an Action in Civil Procedure Law), December
2019, p.362
5. Decision, dated 06/10/2022, and bearing the Basis
number 2021/5570 and the Decision number 2022/4606, of the 6th Civil
Chamber of the Court of Cassation
