The Right To Request Interest Can Be Requested At Any Time Within The Statute Of Limitations
General Assembly of Civil Chambers
Principal Number: 2017/1704
Decision Number: 2020/534
Court of First Instance Civil Court of First Instance
“Case Law Text”
1. At the end of the trial held due to the “receivable” lawsuit between the parties, the decision of Ankara 15th Civil Court of First Instance regarding the dismissal of the lawsuit was reversed upon the appeal of the plaintiff’s attorney by the 13th Civil Chamber of the Court of Cassation, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resistance was appealed by the plaintiff’s counsel.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Plaintiff’s Request:
4. In the statement of claim dated 09.04.2013, the plaintiff’s attorney stated that pursuant to the medical drug purchase and sale agreements dated 30.06.2011 and 20.12.2011 signed between his client and the defendant university 2011 dated 30.06.2011 and 20.12.2011 dated medical drug purchase and sale agreements signed between his client and the defendant university, his client fulfilled his obligations and delivered the drugs, but in the enforcement proceeding initiated upon non-payment of the drug prices, he claimed that the defendant made the payments at 9% legal interest by objecting to the amount of interest and the commercial advance interest rate reserved, although the defendant accepted the principal receivable part, and demanded a decision to collect the interest receivable of 30.000,00TL from the defendant.
Defendant’s Reply:
5. In his reply dated 30.04.2013, the defendant’s attorney stated that the plaintiff had a receivable of 708. 744,97TL receivable of the plaintiff, they objected to the commercial interest by stating that legal interest can be operated not more than 9% after the follow-up date and to the interest operated before the follow-up date on the grounds that the university was not in default, the file debt was paid in line with the objection and the file was executed, the plaintiff did not file a lawsuit for the cancellation of the objection in terms of the objected parts, Therefore, the defendant argued that it tacitly accepted the debt as objected, that it did not reserve its rights regarding the surplus when withdrawing the money, that interest can only be requested from the date of the proceedings since there is no default, and that commercial interest cannot be requested since the defendant makes expenditures on behalf of the public interest, and requested the dismissal of the lawsuit.
Court Decision
6. Ankara 15th Civil Court of First Instance dated 06.03.2014 and numbered 2013/174 E., 2014/164 K. numbered decision; “… The plaintiff sold medicine to the defendant, an enforcement proceeding was filed on 10/09/2012 for the payment of the price of the medicine sold, the debtor objected to the amount of interest and the interest rate to be operated, it was not proved that the debtor was defaulted before the proceeding, the creditor requested legal interest for the principal receivable in the follow-up request and also reserved the right to request commercial advance interest and rate, the right of preference was used in the direction of legal interest while the follow-up was being made, for this reason, since the interest rate that can be requested during the follow-up is clear, the interest rate cannot be changed later by reforming the interest rate; for this reason, the plaintiff’s claim for interest and interest rate is not appropriate … “, it was decided to dismiss the lawsuit.
Special Chamber Reversal Decision:
7. The plaintiff’s counsel appealed against the above-mentioned decision of Ankara 15th Civil Court of First Instance.
8. With the decision of the 13th Civil Chamber of the Court of Cassation dated 17.02.2015 and numbered 2014/23773 E., 2015/4607 K;
“1-According to the writings in the file, the evidence on which the decision is based and the reasons that are in accordance with the law and especially since there is no inaccuracy in the appreciation of the evidence, the plaintiff’s other appellate objections other than those covered by the following paragraph should be rejected.
2- The plaintiff claimed the interest difference receivable arising from the fact that the defendant reserved the right to commercial interest in the payment order in the enforcement proceeding and that the payments were made over the legal interest during the collection of the amount to be paid by the defendant in accordance with the contract between the defendant and the defendant. The court decided to dismiss the case on the grounds that the creditor requested legal interest for the main receivable in the follow-up request and also reserved the right to request commercial advance interest and rate, that the right of preference was used in the direction of legal interest while the follow-up was made, for this reason, since the interest rate that can be requested during the follow-up is clear, the interest rate cannot be changed later by reforming the interest rate, for this reason, the plaintiff’s claim for interest and interest rate is not appropriate. Considering that the plaintiff is a commercial company and therefore a merchant, and that the purchase and sale of medical drugs between the parties is in the nature of commercial business, it is obvious that the plaintiff company may request interest to be charged on its receivables at the advance interest rate and reserves its right to do so. In that case, while the court should decide to accept the lawsuit in line with the expert report, the written judgment is contrary to the procedure and the law and is a reason for reversal.”
Resistance Decision:
9. Ankara 15th Civil Court of First Instance dated 22.12.2015, 2015/353 E., 2015/559 K. With the decision dated 22.12.2015 and numbered 2015/353 E., 2015/559 K.; in addition to the reasons for the previous decision, “… The plaintiff sold medicine to the defendant, an enforcement proceeding was filed on 10/09/2012 for the payment of the price of the medicine sold, the debtor objected to the amount of interest and the interest rate to be operated, it was not proved that the debtor was in default before the proceeding, the creditor requested legal interest for the principal receivable in the follow-up request and also reserved the right to request commercial advance interest and rate, the right of preference was used in the direction of legal interest while the follow-up was being made, for this reason, since the interest rate that can be requested during the follow-up is clear, the interest rate cannot be changed later by reforming the interest rate; For this reason, the plaintiff’s claim regarding the interest and interest rate is not appropriate, in any case, in the enforcement proceedings continued by the plaintiff party with the request for legal interest, the payment was completed and the file was closed as of 22/01/2013, no action was taken to use the right to request commercial advance interest reserved until the date of full payment of the debt, after the debt was fully collected, it was not possible to request the balance commercial interest on the grounds that the right to request commercial interest was reserved in the follow-up, and there was no reserved right as of the date the debt subject to the follow-up was fully paid, for these reasons, in any case, the debt has ended, the debt is deemed to have been fulfilled since no declaration was made regarding the interest while the entire receivable was collected, the decision to dismiss the case regarding the accrued interest was not reversed, this part of the decision became final, the decision to dismiss the case regarding the interest rate to be accrued was reversed, Since it is understood with the scope of the whole file that it would be appropriate to write the whole judgment in the insistence decision, since the insistence was given for this part, since the approved and reversed parts of the decision were not determined separately in the reversal decision, the conscientious opinion has been reached to decide as follows… “, the decision to resist was rendered.
Appeal of the Resistence Decision:
10. The resisting decision was appealed by the plaintiff’s counsel within the period.
II. DISPUTE
11. The dispute that came before the General Assembly of Civil Chambers by way of resistance; in the concrete case, the dispute centers on whether it is possible to request the claimant’s right to request commercial interest for the interest to be accrued on the receivable subject to the execution proceedings, and whether it is possible to request the balance commercial interest.
III. REASON
12. In terms of the solution of the dispute, it is useful to mention the concepts of “interest” and “commercial interest”.
13. Although the receivable subject to the lawsuit arose during the period of the Code of Obligations (CO) numbered 818, which was in force on the date of the relevant agreements, Article 7 of the Law No. 6101 on the Enforcement and Implementation of the Turkish Code of Obligations states that Article 88 titled “Interest” of the Turkish Code of Obligations No. 6098 (TCO), which should be applied to the concrete case pursuant to the regulation “The rules of the Turkish Code of Obligations regarding public order and general morality and Article 76 regarding temporary payments, Article 88 regarding interest, Article 120 regarding default interest and Article 138 regarding excessive difficulty of performance shall also be applied in pending cases” in Article 7 of the Law on the Enforcement and Implementation of the Turkish Code of Obligations No. 6101;
“The annual interest rate to be applied in the interest payment obligation is determined according to the provisions of the legislation in force on the date the interest obligation arises, if not agreed in the contract.
The annual interest rate to be agreed by contract cannot exceed fifty percent more than the annual interest rate determined in accordance with the first paragraph”.
Article 120 of the TCO titled “Default Interest” states;
“…The annual default interest rate to be applied shall be determined in accordance with the provisions of the legislation in force on the date the interest obligation arises, unless agreed upon in the contract.
The annual default interest rate to be agreed upon by contract may not exceed one hundred percent more than the annual interest rate determined in accordance with the first paragraph.
If the contractual interest rate is agreed but the default interest rate is not agreed in the contract and the annual contractual interest rate is higher than the interest rate specified in the first paragraph, the contractual interest rate shall apply to the default interest rate”.
15. Interest, in terms of its legal nature, is an ancillary performance and is an ancillary right that extends the main claim. Therefore, the existence and continuation of the interest obligation depends first and foremost on the existence and continuation of the right to the principal receivable. If the right to the principal receivable does not arise, the interest obligation does not arise either. Likewise, the interest obligation continues as long as the original receivable continues. Since interest is an ancillary right dependent on the principal receivable, if the principal receivable is terminated, the interest also terminates (Eren, F.: General Provisions of the Law of Obligations, 21st Edition, Ankara 2017, p. 1001).
16. This situation is stated in Article 131/1 of the TCO:
“If the principal obligation is terminated by performance or for any other reason, the rights and obligations attached thereto such as pledge, surety, interest and penalty clause shall also be terminated.
If the right to demand the performance of the accrued interest and penalty clause is reserved by contract or by a notification to be made until the moment of performance, or if it is understood from the circumstances and conditions that it is reserved, these interests and penalty clause may be demanded.
Special provisions regarding pledge of immovable property, negotiable instruments and concordat are reserved.”
17. The creditor must reserve this right in order to claim the accrued interest receivables upon the termination of the principal receivable. Indeed, pursuant to Article 131/II of the TCO, unless it has been notified that the right to claim previously accrued interest has been reserved or it is understood from the particularity of the situation, such interest cannot be claimed. Likewise, according to Article 152 of the TCO, when the principal receivable becomes time-barred, the accrued interest also becomes time-barred. Likewise, if the creditor assigns the principal receivable, he shall be deemed to have assigned the interest receivables (Art. 189/I-II TCO; Eren, p. 1001).
18. Article 1 titled “Legal Interest” of the Law No. 3095 on Legal Interest and Default Interest, which contains special regulations on interest,
“In cases where interest is required to be paid according to the Code of Obligations and the Turkish Commercial Code, this payment shall be made at the annual rate of twelve percent, unless the amount is determined by contract.
The President of the Republic is authorized to determine this rate on a monthly basis, reduce it by up to ten percent or increase it by up to one times.”
19. Article 2 of the same Law titled “Default Interest” reads as follows
“The debtor who defaults in the payment of an amount of money is obliged to pay default interest for the past days according to the rate determined in Article 1, unless otherwise agreed by contract.
If the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances on December 31st of the previous year is higher than the above-mentioned amount, default interest may be demanded at this rate in commercial affairs even if there is no contract. If the said advance interest rate differs by five points or more from the advance interest rate applied on June 30th from the advance interest rate applied on December 31st of the previous year, this rate shall apply in the second half of the year.
In cases where the amount of default interest has not been agreed in the contract, if the amount of contractual interest is above the amount stipulated in the paragraphs above, the default interest cannot be less than the amount of contractual interest.”
20. Pursuant to the aforementioned regulation, even if there is no contract between the parties, it is possible to request default interest in commercial affairs at the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances.
21. In the present dispute, the plaintiff is a merchant and according to the provision of Article 3 of the abrogated Turkish Commercial Code No. 6762 (TCC), which should be applied as of the effective date, “All transactions, acts and works that are regulated in this law and all transactions, acts and works that concern a commercial house or factory or other establishment operated in a commercial manner are commercial affairs. “, the legislator has not determined precisely which matters will be considered as “commercial business”; however, it is possible to understand from the wording of the article that some of the works related to the enterprises that are considered commercial and the matters that are exceptionally regulated in the TCC, although they are not commercial enterprises, are considered as commercial business.
22. On the other hand, Article 21/2 of the TCC No. 6762 stipulates that contracts which are commercial business for only one of the parties shall be deemed to be commercial business for the other party, unless otherwise provided by law. Accordingly, in order to apply commercial default interest pursuant to Article 21/2 of the TCC, the dispute must be a commercial business for one of the parties within the scope of Article 3 of the TCC and this commercial business must arise from a “contractual relationship-contract” between a merchant and a non-merchant. In the event that the dispute between the two parties arises, for example, from a tort, it will not be possible to apply Article 21/2 of the Law (Doğanay, İ.: Turkish Commercial Code Commentary, Vol. 1, Istanbul 2004, p. 202 et seq.).
23. As a matter of fact, the same principles were adopted in the decisions of the General Assembly of Civil Chambers dated 27.06.2019 and numbered 2017/13-608 E., 2019/810 K.; dated 19.09.2019 and numbered 2017/13-620 E., 2019/914 K..
24. Article 2 of the Law No. 3095 regulates default interest, and the interest rate even for commercial transactions is determined at the same rate as the legal interest in paragraph 1. In the second paragraph, the creditor is granted the right to request at the rate of advance interest. Therefore, the creditor has the right to request default interest in commercial transactions at the legal interest rate specified in Article 1, as well as at the advance interest rate based on the authorization granted by paragraph 2.
25. Article 87 of the TCO No. 6098, under the heading “Optional Obligation”, states that “In optional obligations, the choice of one of the obligations belongs to the obligor, unless otherwise understood from the legal relationship and the nature of the business.”
26. As it is seen, in optional obligations, the choice of one of the obligations belongs to the debtor, unless otherwise understood from the legal relationship and the nature of the business. As for the type of interest to be chosen, since the right of choice is granted to the creditor by the legal provision, the right of choice does not belong to the debtor as in the general rule, but to the creditor as a result of the legal provision regulating this legal relationship.
27. By its legal nature, the right of choice is a novelty right exercised by a unilateral declaration of will which must arrive. The declaration of will, upon reaching the other party, automatically produces its consequences; the subject matter of the obligation becomes definite in the form of a single performance. Thus, the performance becomes a definite and certain performance, as if it had been owed from the beginning. The declaration of choice has retroactive effects. With this nature and characteristic, the right of choice is a right that gives rise to novelty and belongs to the group of rights that give rise to modifying novelty. As a result, the existing legal (status) relationship changes with the exercise of the right of choice. Since the right of choice is a right that gives rise to innovation, it ends with its exercise. Therefore, the declaration of election cannot be revoked (Eren, pp. 986-987).
28. For example, if the plaintiff, in the petition for a lawsuit filed for a commercial receivable, has only stated “interest”, “legal interest” or “regular interest” (i.e., he has not explicitly requested interest “at the rate applied by the Central Bank for short-term advances”), the court shall decide on the rediscount interest applied by the Central Bank for short-term loans, even if he has reserved his right to the excess, even if he has reserved his right to the excess. This is because the plaintiff, by this act, has not requested interest at the “interest rate applied by the Central Bank for short-term advances”. and the “rediscount rate applied to short-term credit transactions” (Kuru, B.: Civil Procedure, Volume II, Istanbul 2001, p.1754).
29. When the concrete case is evaluated in the light of all these explanations; although it is clear that the plaintiff, who is a merchant, stated that he reserved the right to request commercial interest, while requesting legal interest to be charged on his receivable at the time he started the enforcement proceedings in order to collect the receivable subject to the lawsuit from the defendant university regarding his commercial business; Considering that the right to interest is an optional and innovative right, the right of choice is exhausted with the exercise of the right of choice, in order for a right to be reserved, the demanded and the reserved right must arise from the same right, although commercial and legal interest do not arise from the same right, therefore, no legal consequences can be attached to the reservation of the right to commercial interest, it cannot be mentioned that the plaintiff can now request the remaining commercial interest.
30. As such, the decision of resistance, which decided to dismiss the lawsuit on the grounds that the right of preference was used in favor of legal interest when the proceeding was made, and for this reason, since the interest rate that can be requested during the proceeding is clear, the interest rate cannot be changed later, is appropriate.
31. However, although it is stated in the decision of resistance that no action was taken regarding the reservation of the right to request commercial advance interest during the collection of the price, it is not possible to agree with this reasoning since no reservation can be made during the collection in the face of the fact that the payment was made through the execution office, but the aforementioned issue has not been deemed effective on the merits since the decision is appropriate as a result.
32. During the discussions at the General Assembly of Civil Chambers, as per Article 131/2 of the TCO. Pursuant to Article 131/2 of the TCO, the right to demand interest can be demanded at any time within the statute of limitations if it is reserved with a notification to be made until the moment of performance, and in the concrete case, it is obvious that the right to demand commercial interest is explicitly and explicitly reserved, although legal interest is demanded during the execution proceedings, and considering that legal and commercial interest are not independent rights, both arise from the right to interest, which is the upper title, Although it has been argued that this right can be requested at any time within the statute of limitations, however, it should be investigated whether the claimant has the right to request commercial interest by going into the merits of the matter and if it is concluded that the claimant has the right to request commercial interest, the decision of resistance should be reversed with the different reasoning that the case should be decided to be accepted, this opinion has not been adopted by the majority of the Board for the reasons explained.
33. As a result, it is necessary to uphold the decision of resistance, which is in accordance with the procedure and the law, for the different justifications and reasons explained above.
IV. CONCLUSION:
For the reasons explained;
The appellate objections of the plaintiff’s counsel are rejected and the decision of the Court of Appeal is upheld with the amended justification explained above,
Since the fee was collected in advance, it is not necessary to collect it again,
Pursuant to Article 440 of the Code of Civil Procedure No. 1086, which is being applied according to the provisional article 3 of the Code of Civil Procedure No. 6100, it was decided by majority of votes on 07.07.2020, with the way of correction of the decision open within fifteen days from the notification of the decision.
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