Transfer Of All Rights And Receivables Subject To The Lawsuit After The Lawsuit Is Filed – Active Litigation License – Continuation Of The Lawsuit From Where It Remains And Making An Appropriate Decision After The Matter Is Entered Into And The Attorneys Of The Parties Are Gathered
T.C. JUDICIARY
15th Civil Chamber
Basis: 2015/5589
Decision: 2016/3663
Date of Decision: 23.06.2016
LAWSUIT FOR RECEIVABLES – TRANSFER OF ALL THE RIGHTS AND RECEIVABLES SUBJECT TO THE LAWSUIT AFTER THE LAWSUIT IS FILED – ACTIVE CAPACITY TO SUE – RESUMING THE LAWSUIT FROM WHERE IT LEFT OFF AND MAKING AN APPROPRIATE DECISION AFTER GOING INTO THE MERITS OF THE CASE AND GATHERING THE REPRESENTATIVES OF THE PARTIES – JUDGMENT REVERSED
SUMMARY: Since all of the rights and receivables subject to the lawsuit were transferred to … after the lawsuit was filed by the court, it was not correct to dismiss the lawsuit procedurally with an incorrect evaluation, and it was deemed appropriate to revoke the decision.
(6100 S. Code Art. 125) (6098 S. Code Art. 183)
Case: The appeal of the judgment dated and numbered above was requested by the attorney for the plaintiff assignee …, and on the day appointed for the hearing, the attorneys for the assignee from the plaintiff …, Attorney … and Attorney …, and the attorney for the defendant …, and the attorney for the original intervener …, Attorney … came. The liquidator of the assignor company … did not appear. After it was understood that the petition for appeal was filed in due time and the lawyers of the parties present were heard, the examination and decision of the matter was left for another day due to lack of time. This time, after the papers in the file were read, the matter was discussed and considered:
Decision: The lawsuit was filed for the prohibition of the dispute arising from the work contract signed between the plaintiff contractor company and the defendant owner … regarding the provisional acceptance and unjustified deductions and extension of time, determination and addition of the extension of time to the commitment period, determination and addition of the provisional acceptance … …, the recovery of the unjustly deducted delay penalty from the progress payment, and the collection of the price difference receivables for materials and labor due to the non-contractual manufacturing cost and the extension of the work to … year.
After the lawsuit was filed, with the assignment letter dated …, the contractor company that filed the lawsuit assigned its receivables from the defendant owner until the date of assignment and its rights of claim and lawsuit to …, and the assignee … submitted the assignment letter to the court with a petition dated … and requested the collection of the receivables.
The defendant owner’s attorney objected to the jurisdictional objection and requested the dismissal of the lawsuit in terms of statute of limitations, procedure and substance, and defended that they did not accept the assignment because the assignment was not valid and there was a regulation in Article 11.5 of the contract that the contractor could not assign all kinds of progress payments and receivables to others without the written permission of the administration, and that the assignment letters must be issued by a notary public and must bear the records and conditions required by the administration.
… filed a petition dated … with a petition dated … and requested primary intervention.
Since it is understood that there is a prohibition of assignment and the assignor did not declare his will to pursue the case, the court dismissed the petition procedurally in terms of the capacity to sue-active capacity to take action in the sense of the assignee plaintiff, and since it is understood that the intervention case does not need to continue in the civil court of first instance, taking into account the judgment given in the sense of the main case, the decision on the procedural dismissal of the petition due to the jurisdiction of the commercial court of first instance, taking into account that the parties are merchants in the sense of the intervention case, has been appealed by the attorney of the assignee plaintiff.
The transfer (assignment) of the receivable is regulated in Articles 183 and following articles of the Turkish Code of Obligations No. 6098, and in the first paragraph of Article 183, it is accepted that the creditor may transfer the receivable to a third party without seeking the consent of the debtor, unless the law, contract or the nature of the work does not prevent it, and the following articles regulate the validity of the transfer agreement, legal or judicial transfer and its effect and the provisions of the transfer. According to these regulations, as a rule, the assignment of the receivable cannot be asserted against the debtor in the event that there is a prohibition of assignment in the contract or it is subject to the consent of the debtor and the debtor does not consent.
The assignment of the subject matter of the lawsuit is different from the assignment of the receivable, and while the assignment of the receivable can be made before the lawsuit and even during the performance of the contract in cases where progressive payment is agreed, the assignment of the subject matter of the lawsuit can only be made after the lawsuit is filed, as the name suggests. The transfer of the subject matter of the lawsuit is regulated in Article 125 of the CCP No. 6100 in force on the date of the lawsuit. The 1st subparagraphs a and b of the said article set forth the optional rights of the plaintiff in the event that the defendant transfers the subject matter of the lawsuit to a third party after the filing of the lawsuit. In the concrete dispute, this issue is out of our subject. The transfer of the subject matter of the lawsuit by the plaintiff is regulated in subparagraph 2 of Article 125 and the text of the article reads as follows: “If the subject matter of the lawsuit is transferred by the plaintiff after the lawsuit is filed, the person who has transferred the subject matter of the lawsuit replaces the plaintiff in the pending lawsuit and the lawsuit continues from where it left off”.
Article 125/2 of the CCP, which regulates the transfer of the subject matter of the lawsuit by the plaintiff to a third party, introduces the principle that the transferee will automatically take the place of the plaintiff and the lawsuit will continue from where it left off, on the grounds that the transferee third party will gain the title of plaintiff and the authority to pursue the lawsuit as a matter of law (ipsojure) and the lawsuit will continue with the new plaintiff. According to this provision, the lawsuit will continue between the third person who transfers the lawsuit and the defendant. For this purpose, the defendant’s decision on this matter or the approval of the transferee third party to replace the plaintiff is not required (Medeni Usul Hukuku, Yetkin Hukuk Yayınları 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, then the person who has transferred the subject matter of the lawsuit shall replace the plaintiff and continue the pending lawsuit from where it left off. However, in this case, the defendant may assert personal defenses against the new plaintiff (Medeni Usul Hukuku Yetkin Yayınları 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 fees on …, the receivables subject to the lawsuit in the file numbered … Esas of the Commercial Court of First Instance, where the lawsuit was initially filed, were transferred to the third party … together with the rights of action and claim. Although the assignment was issued in ordinary writing, since the liquidator of the plaintiff company accepted the content of the assignment with his signed statement at the hearing dated …, the transfer was legally realized. Although the title of the document in question is written as assignment, it is a document of transfer of the subject matter of the lawsuit, since it was made after the lawsuit was filed and it is stated in its content that the rights to claim and sue the rights and receivables subject to the lawsuit were also transferred. Since the subject matter of the lawsuit was transferred to (intervener) … after the lawsuit was filed by the plaintiff contractor company, … has replaced the plaintiff contractor company.
In this case, since all of the rights and receivables subject to the lawsuit were transferred to … after the lawsuit was filed, … has replaced the plaintiff contractor company pursuant to Article 125/2 of the CCP, has an active litigation capacity and the lawsuit should be continued from where it left off, it was not correct to dismiss the lawsuit procedurally with the wrong evaluation, while it was necessary to make an appropriate decision after the attorneys of the parties were gathered, and it was deemed appropriate to revoke the decision.
Conclusion For the reasons explained above, it was decided by majority of votes on 23.06.2016 that the appeal objections of the assignee … be accepted and the decision be reversed in favor of …, the … TL trial attorney fee be taken from the defendant and given to the assignee … who was represented by an attorney at the hearing at the Court of Cassation, the prepaid appeal fee be returned to the appellant-appellant assignee … upon request, and that a request for correction of the decision can be made within 15 days from the date of notification against the decision.
DISSENTING OPINION
According to the provisions of Article 183 of the TCO, which regulates the assignment of the receivable, i.e. the transfer of the receivable, if there is a prohibition on the transfer of the receivable in the contract regarding the main legal relationship, or if the consent of the creditor is required for the transfer to be valid and this consent is absent, it cannot be said that the transfer of the receivable is valid. The assignment of receivables is regulated under the Law of Obligations and is a disposition transaction related to substantive law. Its validity and consequences should 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 articles are valid and assertable at every stage, and the fact that the transfer of the receivable is after the lawsuit is filed does not require the waiver of the conditions in Article 183.
Although the transfer of the receivable is related to substantive law, if this transfer occurs after the lawsuit is filed, who will be the plaintiff or the defendant and how the procedural rights will be used by whom are related to procedural law. For this reason, procedural rules regulate the procedures to be taken in the event of the transfer of the subject matter of the lawsuit by the creditor or debtor. The provision in the CCP on this subject is Article 125, and the transfer of the subject matter of the lawsuit by the plaintiff is regulated in the second paragraph. Accordingly, if the subject matter of the lawsuit is transferred by the plaintiff after the filing of the lawsuit, the person who has transferred the subject matter shall replace the plaintiff in the pending lawsuit and the lawsuit shall continue from where it left off.
Even if there is a prohibition of assignment in the contract, it is the debtor of the receivable subject to the assignment who will assert this. If the debtor has not asserted that the transfer is not valid due to the transfer of the receivable, it will be necessary to accept that the consent is not in dispute. Pursuant to Article 125 of the CCP, the transferee of the receivable immediately takes the place of the plaintiff and can use the procedural powers, but will also be dealt with the defenses and objections that the defendant may assert against him and against the transferor creditor, and as a result, if it is proven that there is a receivable that he can claim in terms of substantive law, the receivable will be awarded.
Immediately replacing the plaintiff due to Article 125 of the CCP and becoming a creditor due to the assignment under Article 183 of the TCO are not rules that have the same consequences. The provisions in the CCP authorize procedural actions to claim the receivable. The other authorizes the possession of the receivable in the sense of substantive law. It is not possible for the judge hearing the case to determine who is the real owner of the subject of the lawsuit without seeing the case and conducting a trial. This will only be achieved if the judgment becomes a final judgment. For this reason, in the event of assignment of the subject matter of the lawsuit, the assignee of the receivable will be able to ask for a judgment in favor of the receivable that he/she has taken over, by presenting his/her evidence as the plaintiff, presenting his/her evidence and statements against the defenses of the defendant, and ultimately proving that the assignment of the receivable is valid. Since it is not possible for a person who is not authorized to perform these transactions as a plaintiff to obtain his/her receivable, Article 125 of the CCP authorizes the substitution of the plaintiff regardless of whether there is a valid assignment in the sense of substantive law. If the authority to substitute the plaintiff is not granted immediately, it is not possible for the assignee to assert and prove the existence of the claim. There is no requirement that the assignment of the receivable be valid for the application of the procedural provision on the assignment of the subject matter of the lawsuit. However, the claimability of the receivable itself in terms of substantive law must be proved in the proceedings. The purpose of Article 125 of the CCP is not to limit the rules of assignment of receivables in substantive law, but to facilitate the request and access to the receivables arising from substantive law. In fact, it is inconceivable that an issue related to substantive law in procedural law is regulated in this context.
In the concrete case, there is a prohibition of assignment of the receivable in the contract subject to assignment, and the defendant has also asserted this. Although the assignee has replaced the plaintiff pursuant to Article 125 of the CCP and used his procedural powers, he has not been able to prove that he is a creditor in the sense of substantive law, that is, that there is a receivable that he can request from the defendant with a valid assignment. The defendant, on the other hand, has proved that there is no receivable that the new plaintiff, the assignee creditor, can claim from him due to the prohibition of assignment in the contract, and since the decision to dismiss the case is correct, we disagree with the majority opinion, as we are of the opinion that the judgment should be upheld.
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