General Assembly of the Supreme Court
Director Number: 2017/1704
Decision Number: 2020/534
Court: Civil Court of First Instance
“Text of Justice”
Following the trial concerning the “claim” between the parties, the Ankara 15th Civil Court of First Instance dismissed the case. Upon appeal by the plaintiff’s attorney, the Supreme Court of Appeals 13th Civil Chamber reviewed the case and overturned the decision. The Court Special Chamber resisted the overturning decision.
The plaintiff’s attorney objected to the decision to resist.
After the documents in the file were examined by the General Assembly of the Court of Appeals, the necessity was discussed:
I. TRIAL PROCESS
The Plaintiff’s Claim:
In a petition dated 09.04.2013, the plaintiff’s attorney stated that, in accordance with the medical drug purchase and sale agreements dated 30.06.2011 and 20.12.2011 signed between his client and the defendant university, his client had fulfilled his obligations and delivered the drugs, However, when the drug payments were not made, enforcement proceedings were initiated. The defendant acknowledged the actual amount owed but objected to the commercial advance interest rate, reserving the right to claim interest and stating that payments were made at the legal interest rate of 9%. The plaintiff requested the collection of 30,000.00 TL in interest from the defendant.
Defendant’s Response:
In the response petition dated 04/30/2013 submitted by the defendant’s attorney;In the response filed by the defendant’s attorney on April 30, 2013; They objected to commercial interest on the grounds that the university was not in default, to commercial interest not exceeding 9% after the date of enforcement, and to interest applied before the date of enforcement. They accepted that this interest was collected by objecting to the enforcement proceedings within the time limit after the stamp duty deduction was made.
In line with the objection, the file was settled by paying the debt. that the plaintiff did not file a lawsuit to cancel the objection regarding the contested parts, therefore implicitly accepting the debt, that he did not reserve his rights regarding the excess amount when withdrawing the money, that interest could only be claimed from the date of enforcement since there was no default, and that commercial interest could not be claimed because he made the expenditure on his own behalf, requesting that the lawsuit be dismissed.
Court decision:
By the decision of the Ankara 15th Civil Court of First Instance dated 06.03.2014 and numbered 2013/174 E., 2014/164 K.; “…The plaintiff sold narcotics to the defendant, and enforcement proceedings were initiated on 10/09/2012 for the payment of the price of the narcotics sold. The debtor objected to the amount of accrued interest and the interest rate to be applied. No evidence was found that the debtor was in default prior to the proceedings.
The creditor requested statutory interest on the principal amount in the enforcement request.” Additionally, it reserved the right to claim commercial advance interest and the interest rate, and during the enforcement proceedings, the statutory interest rate was applied. Therefore, since the interest rate that could be claimed during the enforcement proceedings was predetermined, the interest rate could not be changed subsequently. Consequently, the court ruled to dismiss the case on the grounds that the plaintiff’s claim for accrued interest and the interest rate was unfounded.
Special Chamber Decision:
The plaintiff’s attorney appealed the above-mentioned decision of the Ankara 15th Civil Court of First Instance within the prescribed time limit.
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-Based on the documents in the file, the evidence on which the decision is based, and legally compelling reasons, and especially if there is no inaccuracy in the assessment of evidence, the plaintiff’s other appeals outside the scope of the following paragraph must be rejected.
2-The plaintiff claimed that, pursuant to the contract between the plaintiff and the defendant, the defendant reserved the right to commercial interest on the payment order during the collection of the amount payable by the defendant in the enforcement proceedings and that the payments were made at the statutory interest rate, and therefore claimed the difference in interest. In the court’s request, the creditor claimed legal interest on the principal amount owed and reserved the right to claim commercial advance interest and the rate thereof. During the proceedings, the right of priority was exercised in favor of legal interest. Therefore, since the interest rate that could be claimed during the proceedings was determined, the interest rate could not be changed subsequently. Consequently, it was decided that the plaintiff’s claim should be dismissed for just cause.
No appropriate decision has been made regarding the accrued interest and interest rate on the receivables. Considering that the plaintiff is a merchant affiliated with a commercial company and that the purchase and sale of medical drugs between the parties is of a commercial nature, it is clear that the plaintiff company can claim a prepayment interest rate for its receivables and reserves this right. In this case, the court should have decided to accept the case in line with the expert report obtained, and the written decision is contrary to procedure and law and is a reason for annulment.” The decision was overturned.
Appeal Decision:
With the decision of the Ankara 15th Civil Court of First Instance dated 22.12.2015 and numbered 2015/353 E., 2015/559 K.; “…The plaintiff sold the medicine to the defendant by paying the price of the medicine sold.The enforcement proceedings were initiated on 10/09/2012. The debtor objected to the amount of accrued interest and the interest rate to be applied. It has not been proven that the debtor was in default prior to the proceedings. The creditor requested statutory interest on the principal amount in the enforcement request, and the right to request commercial advance interest and the applicable rate is reserved.
During the proceedings, the statutory interest rate was applied, and since the interest rate that could be claimed during the proceedings was determined, the interest rate cannot be changed later. Therefore, the creditor’s claim for commercial advance interest, which was reserved until the entire debt was paid, became final on January 22, 2013, in the enforcement proceedings initiated by the creditor for the accrued interest and interest rate, and in any case, the plaintiff continues with the statutory interest claim.
No action has been taken to exercise the right, the right to claim commercial interest in the proceedings has been reserved after the debt has been fully collected, it has not been possible to claim the remaining commercial interest, no reserved rights remain as of the date the debt subject to the proceedings has been fully paid, the debt has in any case expired, The entire claim has been collected. Since no explanation was given regarding the interest rate when the decision was made, no decision to overturn the rejection of the claim regarding the accrued interest was made, this part of the decision has become final, the decision rejecting the claim regarding the interest rate subject to the proceedings has been overturned, insistence has been made for this part, and a decision has been made in the reversal decision, the debt is considered to have been paid.
Since the approved and rejected parts of the article were not specified separately, it was agreed within the scope of the entire file that it would be appropriate to write the entire sentence in the insistence decision, and the insistence decision was made with the justification that “The decision to be made is as follows…”. Objection to the Insistence Decision:
The plaintiff’s attorney appealed the insistence decision within the specified time limit.
II. DISAGREEMENT
II. DISAGREEMENT
The disagreement brought before the General Assembly of the Court of Appeals through the appeal process is whether it is possible to claim commercial interest in the specific case. The balance has been collected, and the plaintiff reserves the right to claim commercial interest on the receivables subject to enforcement proceedings.
III. REASON
It would be useful to address the concepts of “interest” and “commercial interest” in relation to the subject matter in order to resolve the dispute.
Although the subject matter of the case arose during the period of the Turkish Code of Obligations (TCO) No. 818, which was in force at the time the relevant contracts were concluded, Article 7 of the Law on the Entry into Force and Application of the Turkish Code of Obligations No. 6101 states that “the provisions of the Turkish Code of Obligations No. 6098 (TBK) relating to public order, as well as Article 76 relating to payments, Article 88 relating to interest, Article 120 relating to default interest, and Article 138 relating to excessive performance difficulties, shall also apply to pending cases.”
Article 88;”If the annual interest rate applicable to the interest payment obligation is not agreed upon in the contract, it shall be determined in accordance with the provisions of the legislation in force on the date the interest obligation arises.
The annual interest rate to be determined by the contract may not exceed fifty percent of the annual interest rate determined in accordance with the first paragraph.
Article 120 of the Turkish Code of Obligations, titled “Default Interest”;
“…If the applicable annual default interest rate is not specified in the contract, it shall be determined in accordance with the provisions of the legislation in force on the date the interest obligation arose.
The annual default interest rate to be determined by the contract may not exceed one hundred percent of the annual interest rate determined in accordance with the first paragraph. If the contractual
interest rate is specified in the contract but the default interest rate is not specified 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.”
Interest, in terms of its legal nature, is an ancillary right and a secondary right that extends the principal claim.
Therefore, the existence and continuation of the interest debt depends, first and foremost, on the existence and continuation of the principal claim. If the principal claim does not arise, the interest debt does not arise either. Similarly, as long as the principal claim continues, the interest debt also continues. Since interest is an ancillary right dependent on the principal claim, if the principal claim ends, the interest also ends (Eren, F.: General Provisions of the Law of Obligations, 21st Edition, Ankara 2017, p. 1001).
This is stated in Article 131/1 of the Turkish Code of Obligations as follows:
“If the principal debt is terminated due to performance or any other reason, the rights and obligations related to it, such as the pledge, guarantee, interest, and penalty clause, shall also terminate.
The right to demand the performance of accrued interest and penalty clauses may be exercised if it has been reserved in the contract or by notice until the time of performance, or if it is understood from the circumstances that it has been reserved.
Special provisions regarding real estate mortgages, negotiable instruments, and concordats remain reserved.”
The creditor must reserve this right in order to be able to claim the accrued interest receivables when the principal receivable matures.
Indeed, according to Article 131/II of the Turkish Code of Obligations, accrued interest cannot be claimed unless the right to claim it has been reserved or it is understood from the nature of the situation. Similarly, according to Article 152 of the Turkish Code of Obligations, when the principal claim becomes time-barred, the accrued interest also becomes time-barred. Likewise, if the creditor assigns the principal claim, the interest claims are also deemed to have been assigned (Article 189/I-II of the Turkish Code of Obligations; Eren, p. 1001).
Article 1 of the Law on Statutory Interest and Default Interest No. 3095, which contains special provisions on interest, titled “Statutory Interest,” states
“In cases where interest is payable under the Code of Obligations and the Turkish Commercial Code, if the amount of interest is not determined by contract, this interest shall be paid at an annual rate of twelve percent.
The President is authorized to determine this rate on a monthly basis, reduce it to ten percent, or increase it up to twice the amount.”Article 2 of the same Law, titled “Default Interest”;
“A debtor who defaults on the payment of a sum of money shall be liable to pay default interest at the rate specified in Article 1 for past days, unless otherwise agreed in the contract.
If the interest rate applied by the Central Bank of the Republic of Turkey to short-term advances on December 31 of the previous year is higher than the amount stated above, default interest at this rate may be claimed in commercial transactions even if there is no agreement between the parties.
If the advance interest rate on December 31 of the previous year differs by five points or more from the advance interest rate applied on June 30, this rate shall apply in the second half of the year. In cases where the default interest amount is not specified in the contract, if the contractual interest amount exceeds the amount specified in the above paragraphs, the default interest cannot be less than the contractual interest amount.
According to this regulation, even if there is no agreement between the parties, it is possible to demand the default interest rate applied by the Central Bank of the Republic of Turkey for short-term advances in commercial transactions.
In the case in question, the plaintiff is a merchant, and according to Article 3 of the repealed Turkish Commercial Code (TCC) No. 6762, effective as of the date of entry into force, “The provisions of this Code shall apply to all commercial transactions.”
The plaintiff in the case in dispute is a merchant, and Article 3 of the repealed Turkish Commercial Code No. 6762, as of the effective date, states, “All transactions, actions, and operations related to a commercial establishment, factory, or workplace operated for commercial purposes, together with the matters regulated in this law, constitute a commercial enterprise.”
The provision is included. Although the legislator has not clearly determined which matters shall be considered “commercial enterprises” according to the provision, it is understood from the wording of the provision that certain activities related to enterprises considered commercial enterprises and matters regulated as exceptions in the TCC are considered commercial enterprises even if they are excluded from commercial enterprises.
On the other hand, Article 21/2 of the Turkish Commercial Code No. 6762 stipulates that contracts that are commercial in nature for only one of the parties shall be considered commercial for the other party, unless otherwise provided by law. Accordingly, for commercial default interest to be applicable under Article 21/2 of the TCC, the dispute must constitute a commercial transaction for one of the parties within the scope of Article 3 of the TCC, and this commercial transaction must arise from a “contractual relationship” between a merchant and a non-merchant.
If the dispute between the two parties arises from, for example, an unjust act, Article 21/2 of the Code shall apply. (Doğanay, İ.: Commentary on the Turkish Commercial Code, Volume 1, Istanbul 2004, p. 202 et seq.).
Indeed, the same principles have been adopted in the decisions of the General Assembly of the Court dated June 27, 2019, No. 2017/13-608 E., 2019/810 K., and dated September 19, 2019, No. 2017/13-620 E., 2019/914 K.
Default interest is regulated in Article 2 of Law No. 3095, and even in commercial transactions, the interest rate is determined at the same rate as the statutory interest in paragraph 1. Paragraph 2 grants the creditor the right to demand advance interest.
,Therefore, the creditor may claim default interest at the statutory interest rate specified in Article 1, as well as advance interest based on the authority granted to them under paragraph 2.
Article 87 of the Turkish Code of Obligations No. 6098, under the heading “Optional Debts,” states that “In optional debts, unless the legal relationship and the nature of the business require otherwise, the right to choose one of the performances belongs to the debtor.”
As can be seen, in elective debts, unless otherwise understood from the legal relationship and the nature of the business, the choice of one of the performances belongs to the debtor.
As for the type of interest to be chosen, since the right of choice is granted to the creditor by law, the right of choice belongs to the creditor, not the debtor, as a result of the law governing this legal relationship, as is the general rule.
The right of choice is, by its legal nature, a new right exercised unilaterally and through a necessary declaration of intent. The declaration of intent reaches the other party and produces its own consequences; the subject matter of the debt is clarified in a single transaction. Thus, the transaction takes on a definitive and conclusive form, as if it had been a debt from the outset.
The declaration of choice has retroactive effects. With this quality and characteristic, the right to choose is
a right that creates novelty and falls within the group of rights that create transformative novelty. Consequently, the existing legal (situation) relationship regarding the exercise of the right to vote changes. Since the right to choose is an innovative right, it ends when exercised. Therefore, the declaration of choice cannot be revoked (Eren, pp. 986-987).For example, if the plaintiff, in a lawsuit filed for a commercial debt, only mentions “interest,” “statutory interest,” or “normal interest” (i.e., has not explicitly requested interest “at the rate applied by the Central Bank to short-term advances”).
Even if the company reserves its right to claim the excess, the court will rule on the discount rate applied by the Central Bank to short-term loans. This is because, by doing so, the plaintiff is deemed to have waived the difference between the “interest rate applied by the Central Bank to short-term advances” and the “rediscount rate applied to short-term credit transactions” (Kuru, B.: Hukuk Muhakemeleri Usulü [Procedural Law], Volume II, Istanbul. 2001, p. 1754).
When the specific case is evaluated in light of all these explanations; although the plaintiff is a merchant and, despite requesting the application of statutory interest on the receivable when initiating enforcement proceedings against the defendant university to collect the receivable related to the commercial enterprise in question, it is clear that he declared that he reserved the right to claim commercial interest; since the right to interest is an optional and newly arising right, the exercise of this right exhausts the right to choose.
For a right to be reserved, the requested and reserved rights must arise from the same right. However, commercial and statutory interest do not arise from the same right. Therefore, it should be noted that no legal consequence can be attached to the reservation of the right to commercial interest. In this case, it cannot be said that the plaintiff can now claim the remaining commercial interest.
Therefore, it is appropriate to dismiss the case on the grounds that the right of priority was exercised in favor of statutory interest during the proceedings, and that the interest rate that could be claimed during the proceedings was therefore fixed and could not be changed subsequently.
However, although the decision to resist stated that the right to claim commercial advance interest during the collection of the amount was reserved, it was not possible to agree with this reasoning because the payment was made through the enforcement office and the reservation could not be registered during collection.
Therefore, the decision was deemed appropriate, and the aforementioned issue was not considered to have an effect on the merits.
In the deliberations of the 32nd General Assembly of the Court of Appeals, pursuant to Article 131/2 of the Turkish Code of Obligations, the right to claim interest can be exercised at any time during the statute of limitations, provided that it is reserved by notification until the time of performance. In the present case, while statutory interest was claimed during the enforcement proceedings, it is clear that the right to claim commercial interest was expressly and clearly reserved.
Considering that there is no independent right and that both rights derive from the principal right of interest, it was ruled that this right can be claimed at any time within the statute of limitations period, but that the merits of the case must be examined to determine whether the plaintiff has the right to claim commercial interest, and if it is concluded that the plaintiff has the right to claim commercial interest, the case must be accepted. Although it was argued that the decision to resist should be overturned for various reasons, the majority of the Board did not accept this view for the reasons stated.
Consequently, based on the various reasons and justifications explained above, it was necessary to decide to uphold the decision to resist, which was in accordance with procedure and law.
IV. CONCLUSION:
For the reasons explained;
the plaintiff’s attorney’s objections are rejected and the decision to resist is APPROVED for the different reasons explained above,
there is no place for it to be taken again due to the fee being paid in advance,
Pursuant to Article 440 of the Code of Civil Procedure No. 1086, implemented in accordance with the transitional Article 3 of the Code of Civil Procedure No. 6100, it was decided by majority vote on 07.07.2020 that the right to appeal is open within fifteen days from the notification of the decision.