Supreme Court Decision On Compensation Claims Arising From Unfair Acts Between Traders
Republic of Turkey
Supreme Court of Appeals
4th Civil Chamber
Case No.: 2016/6461
Decision No.: 2018/777
Date of Decision: February 12, 2018
>>CLAIM FOR COMPENSATION ARISING FROM UNJUST ACT BETWEEN TRADERS – ABSENCE OF LEGAL PERSONALITY OF THE ORDINARY PARTNERSHIP – INCLUSION OF ALL PERSONS FORMING THE PARTNERSHIP IN THE CASE
2004/m.67
SUMMARY: In a simple partnership, since the partnership does not have legal personality, it does not have the capacity to sue or be sued as a simple partnership, and it is not possible for only one of the partners to have the right and authority to file a lawsuit or for a lawsuit to be filed against one of them. In other words, in a lawsuit arising from disputes over business and transactions conducted as a general partnership, all persons forming the partnership must be named as parties to the lawsuit. In the case in question, since the work to be performed was undertaken as a simple partnership by the defendant and the non-litigant commercial enterprise, the other partner must also be a party to the lawsuit alongside the defendant. It is contrary to procedure and law for the court to continue the trial and render a judgment by examining the merits of the case without ensuring the participation of the other enterprise forming the simple partnership in the lawsuit.
CASE: Upon the petition filed on 21/11/2014 by the attorneys of the plaintiff, İletişim Hizmetleri Anonim Şirketi, against the defendant, Haf. İnş. Taah. Nak. San. ve Tic. Ltd. Şti., seeking compensation arising from an unjust act between merchants, the court, at the end of the proceedings, The decision dated 27/10/2015, partially accepting the claim, was requested to be reviewed by the Court of Cassation within the time limit by the attorneys of the parties. After the appeal petitions were accepted, the case file and the documents were reviewed by the examining judge, and the necessary deliberations were made:
DECISION: The case concerns a claim for compensation arising from an unjust act between merchants. The court decided to partially accept the case; the decision was appealed by the parties’ attorneys. The plaintiff’s attorney claimed that the necessary precautions were not taken during the road construction undertaken by the defendant company and that this caused damage to the infrastructure facilities belonging to his client’s company, requesting compensation for the damage incurred. The defendant’s attorney argued that the work was carried out by the defendant company and the third party Hafriyet Elektrik Taahhüt Ticaret Ortak girişimi, that the other company should also be included in the lawsuit, that there was mandatory joinder between them, and that the lawsuit should be dismissed on the merits.
The court decided to partially accept the case based on the expert report. Upon examination of the contract dated 07/23/2012 for the Paving Road Construction Work included in the file, it was understood that the contract was signed between the Municipality Technical Works Directorate and Hafriyat Construction Contracting Transportation Trade Limited Company-Hafriyet Electricity Contracting Trade Partnership. Therefore, it must be accepted that the relationship between the defendant and the non-litigant commercial enterprise is in the nature of a simple partnership and that they undertook the tendered work as a simple partnership. In a simple partnership, since the partnership does not have legal personality, it does not have the capacity to sue or be sued as a simple partnership, and only one of the partners has the right and authority to file a lawsuit or be sued. In other words, in a lawsuit that may be filed as a result of disputes arising from the work and transactions carried out as a simple partnership, it is mandatory that all persons forming the partnership be listed as parties to the lawsuit. In the case in question, since the work to be performed was undertaken as a simple partnership by the defendant and the non-litigant commercial enterprise, the other partner, Hafriyet Elektrik Taahhüt Ticaret, must also be a party to the lawsuit alongside the defendant. Since the court disregarded this aspect and proceeded with the trial by examining the merits of the case without ensuring the participation of the other business forming the ordinary partnership and rendered a written judgment, the decision must be reversed as it is not in accordance with the procedure and the law.
CONCLUSION: The appealed decision is REVERSED for the reasons explained above. Based on the grounds for reversal, there is no need to examine the parties’ other appeals at this time. If requested, the advance fees collected from the parties shall be refunded. This decision was made unanimously on February 12, 2018.