T.R. SUPREME COURT
- Law Office
Basis: 2015/5589
Decision: 2016/3663
Decision Date: 23.06.2016
ACTION OF CREDIT – AFTER FILE OF THE CASE, THE TRANSFER OF ALL THE RIGHTS AND RECEIVABLES SUBJECT TO THE ACTION – ACTIVE LIABILITY TO ACTION – CONTINUING FROM THE LAWSUIT FROM THE FOLLOWING FLOOR, ENTERING THE PRINCIPLES OF THE BUSINESS AND GATHERING THE PARTY’S ATTORNEYS, AFTER THE ACTION IS CLAIMED
SUMMARY: Since all of the rights and receivables that are the subject of the lawsuit are transferred to … after the lawsuit is filed by the court, since the suing contractor replaces the company, there is an active legal capacity and the lawsuit should be continued from where it left off, the wrong assessment should be given after the parties’ attorneys convene after entering the essence of the business. The dismissal of the case due to the procedure was not correct, and it was found appropriate to reverse the decision.
(6100 S. K. Art. 125) (6098 S. K. Art. 183)
Lawsuit: The examination of the above-mentioned provision with a hearing, on appeal, was requested by the attorney of the plaintiff, the assignee …, on the day appointed for the hearing, the attorneys of the plaintiff … and the attorney … and the defendant … the attorney … and the main intervening … the attorney … came. The liquidator of the assigning company … did not come. After it was understood that the appeal petition was submitted in due time and the lawyers of the parties present were heard, due to the lack of time, the case was left to be examined and resolved for another day. This time, after the papers in the file were read, the necessity of the job was discussed and thought:
Decision: The lawsuit, the temporary acceptance and unfair deductions arising from the work contract signed between the plaintiff contractor company and the defendant employer, and the prohibition of the dispute created regarding the time extension, the determination and addition of the need to add to the commitment period by determining the time extension, determination that the provisional acceptance should be made on … and it is made as of this date, it is related to the demand for the compensation of the delay penalty deducted from the progress payment unfairly, the non-contractual production cost and the collection of material and workmanship price difference receivables due to the delay of the work to … year.
After the lawsuit was filed, with the assignment dated …, the contractor company, which brought the lawsuit, assigned its receivables from the defendant business owner until the date of assignment and its claims and lawsuit rights to …. .
The defendant business owner’s attorney filed an objection to the judicial remedy and requested the dismissal of the case in terms of statute of limitations, procedural and substantive, 11.5. In the article, there is a regulation stating that the contractor cannot assign all kinds of progress payments and receivables to others without the written permission of the administration, that the assignment letters must be issued by a notary public and must meet the terms and conditions required by the administration, and they argued that they did not accept the assignment as it is not valid.
… has requested for primary intervention with the petition dated ….
Since it was understood by the court that there was a ban on assignment and that the assignor did not declare his will to pursue the case, the dismissal of the case in terms of the capacity of the assignee-active hostility from the procedure, taking into account the judgment given in the meaning of the main case, it was understood that the intervention case did not have to continue in the civil court of first instance, the parties in the sense of the intervention case should be merchants. Taking into account the fact that the commercial court of first instance is in charge, the decision regarding the rejection of the petition due to the procedure was appealed by the attorney of the plaintiff who received the assignment.
The transfer (assignment) of the receivable is regulated in the 183 and the following articles of the Turkish Code of Obligations No. 6098, and in the first paragraph of the 183th article, it is accepted that the creditor can transfer his receivables to a third party without seeking the consent of the debtor, unless the law, contract or the nature of the business prevents it, and the validity form of the transfer agreement in the ongoing articles. , legal or judicial transfer and its effect and the provisions of the transfer are regulated. According to these regulations, as a rule, the assignment of the receivable cannot be claimed against the debtor if there is a prohibition of assignment in the contract or in the absence of the debtor’s consent, which is dependent on the debtor’s consent.
The transfer of the subject of the lawsuit is different from the assignment of the receivable, and although it is possible to make the assignment of the receivable before the lawsuit and even during the performance of the contract in cases where gradual payment is decided, the transfer of the subject of the lawsuit can only be made after the filing of the lawsuit, as the name suggests. The transfer of the subject of the lawsuit is regulated in Article 125 of the Code of Civil Procedure numbered 6100, which was in effect at the date of the lawsuit. In the first subparagraphs a and b of the said article, the optional rights of the plaintiff are shown in the event that the defendant party transfers the subject of the lawsuit to a third party after the lawsuit has been filed. In the concrete dispute, this issue is out of our scope. The transfer of the subject of the lawsuit by the plaintiff is regulated in the second paragraph of Article 125 and it is stated in the text of the article that “after the filing of the lawsuit, if the subject of the lawsuit is to be transferred by the plaintiff, the person who has taken over shall replace the plaintiff in the ongoing lawsuit and the lawsuit will continue from where it left off”.
The subject of the case
125/2 of the HMK, which regulates the transfer of pain by pain to a third party. The provision of the article has brought the principle that the transferee will automatically take the place of the plaintiff and continue the case from where it left off, on the grounds that the third party will gain the title of plaintiff as per law (ipsojure) and accordingly the authority to pursue litigation and the case 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 reason, the defendant’s approval is not required for the defendant to decide on this issue or for the third party to take over the place of the plaintiff. (Civil Procedure Law, Yetkin Hukuk Publications 1st edition Prof. Dr. Ramazan Arslan, Prof. Dr. Ejder Yılmaz, Prof. Dr. Sema Taşpınar Ayvaz page 511 and more). If the subject matter of the lawsuit is transferred by the plaintiff to another person after the lawsuit is filed, in this case, the person who has taken over takes the place of the plaintiff and continues the pending lawsuit from where it left off. However, in this case, the defendant can put forward reasons for personal defense against the new plaintiff (Civil Procedure Law Yetkin Publications, 12th edition Prof. Dr. Hakan Pekcanıtez, Prof. Dr. Oğuz Atalay, Prof. Dr. Muhammed Özeken, page 412 and more).
In the concrete case, after the lawsuit was filed by the contractor … by paying the fee on …, the receivables, which were the subject of the lawsuit, were transferred to the third party, together with the rights of the lawsuit and claim, in the file no. Although the assignment letter was issued in written form, the transfer took place legally, since the liquidator of the plaintiff company accepted the content of the assignment letter with his signed statement at the hearing dated …. Although the title of the document in question is a letter of assignment, since it is stated that it was made after the lawsuit was filed and that the rights and receivables that were the subject of the lawsuit, and the rights of the lawsuit were transferred, it is in the nature of the transfer of the subject of the lawsuit. Since the subject of the lawsuit (intervening) was transferred to … after the lawsuit was filed by the plaintiff contractor company, the plaintiff contractor company replaced the plaintiff.
In this case, since all of the rights and receivables that are the subject of the lawsuit are transferred to … after the lawsuit is filed by the court, … 125/2 of the HMK. Since the contractor who filed the lawsuit was replaced by the contractor company, active litigation capacity was found and the case had to be continued from where it left off, a decision should be made after entering the essence of the business and meeting the attorneys of the parties, but the rejection of the lawsuit was not correct due to the wrong assessment, and the decision was deemed appropriate to be reversed.
Conclusion: With the acceptance of the objections of the person who took over the case for the reasons explained above, the appeal was overturned for the benefit of the decision, the attorney’s fee of … TL was collected from the defendant and the transferee was represented by the attorney at the hearing at the Court of Cassation, and the appeal fee paid by the appellant, upon request, was given to the assignee. It was decided by a majority of votes on 23.06.2016 that a request for correction of the decision could be made within 15 days from the date of notification against the decision.
OBJECTIVE VOTE
According to the provisions of the Article 183 of the TCO, in which the assignment of the claim is regulated, with the opposite meaning of the regulation, which regulates the transfer of the claim, if there is a prohibition on the transfer of the claim in the contract regarding the main legal relationship, or there is a condition of consent of the creditor for the transfer to be valid, and if there is no such consent, the transfer of the claim is valid. not possible. The transfer of receivables is regulated in the Law of Obligations and is a savings process related to substantive law. Its validity and results should also be evaluated according to the provisions of the law in which it is regulated. Since there is no special regulation in the TCO, the validity conditions in Articles 183 and the following are valid and assertable at every stage, and the fact that the receivable is transferred after the lawsuit is filed does not necessitate abandoning the search for the conditions in Article 183.
If the transfer of the claim is related to the substantive law, if this transfer takes place after the lawsuit is filed; Who will have the titles of plaintiff or defendant, and how procedural rights will be exercised are related to procedural law. For this reason, in the rules of procedure, there are regulations regarding the actions to be taken in case the subject of the lawsuit is transferred by the creditor or debtor. The provision in the HMK on this matter is Article 125, and the transfer of the subject of the lawsuit to the plaintiff is regulated in the second paragraph. According to this; If the subject of the lawsuit is to be transferred by the plaintiff after the filing of the lawsuit, the person who has taken over replaces the plaintiff in the pending lawsuit and the lawsuit continues from where it left off.
Even if there is a prohibition of transfer in the contract, it is the debtor of the receivable that is the subject of the transfer, who will claim it. If the debtor does not claim that there is no consent due to the transfer of the receivable and the transfer is not valid, it will be necessary to accept that the consent is not the subject of dispute. In accordance with Article 125 of the HMK, the transferee of the claim immediately replaces the claimant and may use the procedural powers,
will also be addressed with objections, and if it is proved that there is a claim that can be claimed in terms of substantive law as a result, the claim will be judged.
Acting as a plaintiff due to Article 125 of the HMK and becoming a creditor due to assignment in Article 183 of the TCO are not the same rules. The provisions in the HMK give the authority to take the procedural actions regarding the claim of the receivable. The other gives the authority to have a receivable in the sense of substantive law. It is not possible for the judge looking at the case to determine who the real owner of the case is without seeing the case and making a trial. This will only be achieved when the decision to be made becomes a final judgment. For this reason, in the event of the transfer of the subject of the case, the transferee will replace the claimant, present the evidences, submit the evidence and statements against the defendant’s defenses, and will ultimately be able to demand a decision in favor of the taken over receivable by proving that the transfer of the receivable is valid. Since it is not possible for a person who does not have the authority to carry out these transactions as a plaintiff, to recover his receivables, Article 125 of the HMK gives the right to act as the plaintiff, regardless of whether it is a valid assignment in terms of substantive law. If the right to take the place of the claimant is not given immediately, it will not be possible for the transferee to assert and prove the existence of the receivable. There is no requirement that the transfer of the claim be valid for the implementation of the procedural provision of the transfer of the subject matter. However, in the trial, the claimability of the claim in terms of substantive law must also be proven in terms of itself. The purpose of Article 125 of HMK is not to limit the rules of assignment of receivables in substantive law, but to facilitate demand and access to receivables arising from substantive law. In fact, it is unthinkable that a matter of substantive law in procedural law regulates the assignment of receivables in this context.
In the concrete case, there is a prohibition on the transfer of the receivable in the contract subject to the assignment, and the defendant also claimed this. Although the assignee took the place of the plaintiff in accordance with Article 125 of the CPC and used his procedural powers, he could not prove that he was a creditor in the sense of substantive law, that is, that he could request a claim from the defendant with a valid assignment. If the defendant has proven that there is no receivable that the new claimant can claim from him due to the transfer ban in the contract, we do not agree with the majority opinion since we are of the opinion that the judgment should be approved because the decision to reject the case is correct.
