General Assembly of Law
Part Number: 2017/1704
Decision Number: 2020/534
Court of First Instance: Court of First Instance
“text of jurisprudence”
1. At the end of the trial held due to the “receivable” case between the parties, Dec 15. The decision on the dismissal of the case issued by the Court of First Instance, the Supreme Court of Cassation on the appeal of the plaintiff’s deputy 13. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiff.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. Plaintiff attorney dated 09.04.2013 money order in the petition; that the defendant signed and dated 20.12.2011 with the client’s medical drug purchase and sale agreement between the University of 30.06.2011 accordance with the client by performing acts, has delivered the drugs, but the drug enforcement proceedings initiated upon failure of the defendant to pay the costs of the principal will take part in, and even the amount of interest on advance payments retained and the right objected to the commercial and the interest rate of 9% of the statutory interest made through citing 30.000,00 TL interest from the defendant requested that the decision to be given to the collection of receivables.
The Defendant’s Answer:
5. The defendant’s deputy filed a response petition dated 30.04.2013; the executive proceeding by the appeal within the period of stamp duty cuts are made after the plaintiff’s 708.744,97 TL with the acceptance that I would get a follow after the date of 9% not more than the statutory interest rate can be processed by the commercial interest of the University and where the default by specifying the reason of not operated for a reduction in interest prior to the date of follow the line of appeal to appeal the execution of that file in the file by paying the debt that was to be, in terms of withdrawal of the appeal didn’t suit the plaintiff contested the parts, hence the contested debt implicitly accepted in the way, he asked that the case be dismissed, arguing that he did not reserve his rights to the surplus when withdrawing the money, that interest could only be requested from the date of follow-up since there was no default, and that commercial interest could not be requested because the defendant was spending on behalf of the public interest.
ruling:
6. Ankara 15. The decision of the Court of First Instance dated 06.03.2014 and dated 2013/174 E., 2014/164 K. by his numbered decision; “…The plaintiff, the defendant was selling drugs for the payment of the price of drugs sold on the executive 10/09/2012 tracking is performed, where the interest rate that the borrower will be operated and committed objected to the amount of interest that the debtor has defaulted before seen proof that the pursuit was reduced, the demand of the creditor wants to follow legal interest in the principal receivables, and also the interest rate and the rate of the advance commercial reserves the right to ask for follow-up is conducted in the direction of where it is used the right choice while legal interest, therefore, during the pursuit that may be charged later when it became clear that the net interest rate, interest rates, and cannot be changed by breeding; for this reason, it was decided to dismiss the case on the grounds that the claimant’s receivable lawsuit is not in place regarding the interest and interest rate that he has committed …”.
The Decision to Spoil the Private Apartment:
7. Ankara 15. Within the period against the above-mentioned decision of the Court of First Instance, the deputy plaintiff has requested an appeal.
8. Supreme Court 13. The letter of the Law Department dated 17.02.2015 and dated 2014/23773 E., 2015/4607 K. by his numbered decision;
“1-According to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the plaintiff must reject other appeals that fall outside the scope of the following paragraph.
2-the contract between the defendant to pay the plaintiff the defendant’s it’s a small price pursuant to the executive through the collection phase, a payment order in execution proceedings and reserves the right to commercial interest in the payments made on the difference in interest that would take legal interest resulting from the claimed. Legal interest in the principal receivables to follow the demand of the creditor by the court wants, and also the interest rate and the rate of the advance commercial reserves the right to ask for follow-up is conducted in the direction of where it is used the right choice while legal interest, therefore, during the pursuit that may be charged later when it became clear that the net interest rate, interest rates, and cannot be changed by breeding, therefore, committed the case of the plaintiff in the matter of interest and interest rate will take the case is dismissed on the grounds that he’s not. Considering that the plaintiff is a merchant due to a commercial company, and the purchase and sale of medical drugs between the parties is a commercial business, it is obvious that the plaintiff company may request that interest be dec at an advance interest rate on what it will receive, and it reserves the right to do so. In that case, it is necessary to decide on the acceptance of the case in accordance with the expert report received by the court, while the provision in writing is contrary to the procedure and law and is the reason for the violation.” the decision on the grounds has been overturned.
The Decision to Resist:
9. Ankara 15. The decision of the Court of First Instance dated 22.12.2015 and dated 2015/353 E., 2015/559 K. by his numbered decision; in addition to the reasons for the previous decision, “…The plaintiff sold the defendant a drug, enforcement proceedings were conducted on 10/09/2012 to pay for the drug sold, the borrower objected to the amount of interest processed and the interest rate to be operated, the borrower did not see evidence that it was defaulted before the follow-up, the creditor requested legal interest on the principal receivable in the follow-up request, also reserves the right to request commercial advance interest and rate, while the follow-up is made, the right of choice is in the direction of legal interest where it is used, for this reason, since the interest rate that can be requested during the follow-up is clear, the interest rate cannot be changed by correcting it later; for this reason, the plaintiff’s receivable lawsuit regarding the interest rate and interest rate committed is not in place, in any case, the plaintiff’s legal interest request continues with the enforcement process as of 22/01/2013, the payment is completed and the file is closed, the right to request commercial advance interest reserved until the date of full payment of the debt has not been exercised, the right to request commercial interest in the follow-up after the debt has been fully collected, the demand for commercial interest on the balance is not possible, for these reasons, in any case, the debt has expired, the debt has been deemed fulfilled because no statement has been made about the interest while the entire receivable has been collected, there has been no violation of the decision to reject the case for the interest processed, this part of the decision has been finalized, the decision to reject the case for the interest rate that will be processed has been overturned, the insistence has been made for this part, since the approved and overturned parts of the decision were not determined separately in the decision to overturn, it was understood from the entire scope of the file that it would be appropriate to write the entire provision in the decision to insist that it was a conscientious decision to make a decision as follows …”the decision to resist was made on the grounds of “.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the deputy plaintiff within the time limit.
II. DISPUTE
11. The dispute that comes before the General Assembly of Law by way of resistance; In a concrete case, since the plaintiff has the right to request commercial interest in terms of interest that will be processed in accordance with the enforcement proceedings of the claimant, the balance is collected at the point where a request for commercial interest is possible with a bet.
III. reason
12. From the point of view of resolving the dispute, it is worth mentioning the concepts of “interest” and “commercial interest” related to the issue.
13. Although the subject matter of the lawsuit was born during the period of the Code of Obligations No. 818 (BK) in force at the time of the issuance of the relevant contracts, the Law No. 6101 on the Enforcement and Method of Application of the Turkish Code of Obligations No. 7. the article “the Turkish public order and morality of the law of obligations with the rules of Article 76 of the temporary payments of interest, 88 Pearl, Article 120 and Article 138 of hardship on interest, apply to pending cases” by the regulations that should be applied to a concrete case of Turkish code of obligations No. 6098 (CODE) “Interest titled” 88. the substance;
“The annual interest rate to be applied on the interest payment debt is determined in accordance with the provisions of the legislation in force on the date of birth of the interest debt, if it has not been agreed in the contract.
The annual interest rate to be decided by the Contract shall not exceed fifty percent of the annual interest rate determined in accordance with the first paragraph”.
14. Tbk’s “interest titled” 120. item;
“…The annual default interest rate to be applied, if not agreed in the contract, is determined in accordance with the provisions of the legislation in force at the time of the birth of the interest arrears.
The annual default interest rate to be agreed by the Contract may not exceed one hundred percent of the annual interest rate established in accordance with the first paragraph.
Although the contractual interest rate has been agreed upon, if the default interest has not been agreed in the contract and the annual contractual interest rate is more than the interest rate specified in the first paragraph, the contractual interest rate applies to the default interest rate”includes the regulation.
15. Interest, by its legal nature, is a side action and is a side right that expands the actual receivable. Therefore, the existence and continuation of the interest-bearing debt depends, first of all, on the existence and continuation of the principal receivable right. If the actual right to receivables has not been born, the interest debt will not be born either. Likewise, the interest debt continues as long as the principal receivable continues. Since interest is a subsidiary right related to the principal receivable, if the principal receivable expires, the interest also expires (Eren, F.: General Provisions of the Law of Obligations, 21. Edition, Ankara 2017, p. 1001).
16. This is the case of TBK 131/1. in the article:
“If the principal debt expires for performance or other reason, the rights and obligations related to it, such as pledges, sureties, interest and penalty conditions, will also expire.
If the right to request the performance of the interest and penalty condition committed is reserved by the contract or by a notification to be made before the moment of performance, or if it is understood that it is reserved from the circumstances and conditions, these interests and penalty conditions may be requested.
Special provisions regarding immovable pledge, negotiable instrument and concordat are reserved. it is arranged as ”.
17. The creditor must reserve this right in order to request interest receivables that have been processed when the actual receivable expires. Really, TBK m. According to 131/II, these interest rates cannot be requested unless it is reported that the right to request interest that has been processed before is reserved or it is understood from the nature of the situation. Also TBK m. according to 152, when the principal receivable expires, the interest processed also expires. In the same way, if the creditor transfers the principal receivable, it is also considered to have transferred the interest receivables (TBK m. 189/I-II; Eren, p. 1001).
18. Article 1 of the Law No. 3095 on Statutory Interest and Default Interest, which contains special regulations on interest, entitled “Statutory Interest”. the substance,
“In cases where interest must be paid in accordance with the Code of Obligations and the Turkish Commercial Code, this payment is made at an annual rate of twelve percent if its amount has not been determined by the contract.
The President is authorized to set this rate on a monthly basis, reduce it to ten percent or increase it up to a multiple.” it includes editing.
19. 2 of the same Law entitled “Default Interest”. item;
“The debtor who has defaulted on the payment of a certain amount of money is obliged to pay default interest according to the rate established in article 1 for the past days, unless otherwise agreed by the contract.
If the interest rate applied by the Central Bank of the Republic of Turkey on short-term advances on December 31 of the previous year is more than the amount described above, dec default interest on commercial business may be requested at this rate, even if there is no contract between them. December June 30, if the advance interest rate in question is five percentage points or more different from the advance interest rate applied on December 31 of the previous year, this rate will be effective in the second half of the year.
If the amount of default interest is not agreed in the contract, if the amount of contractual interest is higher than the amount provided for in the above paragraphs, the default interest cannot be less than the amount of contractual interest”.
20. In accordance with the said regulation, even if there is no contract between the parties, it is possible to request the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances on default interest dec commercial business.
21. 3 of the Turkish Commercial Code (TCC) No. 6762, where the plaintiff is a merchant in the dispute at hand and must be applied as of the effective date. article “All treatment, acts and works related to a trading house or factory or other commercially operated institution with the issues regulated in this law are commercial works.” matters which are under the provision of “business” will be deemed as strictly determined by the legislator is also a section about the wording of the article counted as exceptional commercial enterprise commercial businesses with matters which are arranged in the TCC remains outside of the business, although it is possible to understand that was.
22. On the other hand, Article 21/2 of the Turkish Commercial Code No. 6762. in its article, it is regulated that contracts of a commercial nature for only one of the parties will be considered commercial business for the other, unless there is a provision to the contrary in the law. Accordingly, 21/2 of the TCC. in order for commercial default interest to be applied in accordance with Article 3 of the TCC for one of the parties to the dispute. it is dec that it is a commercial business within the scope of the article and that this commercial business arises from the “contractual relationship-contract” existing between the person who is a trader and the person who is not a trader. 21/2 of the Law in the event that a dispute between two parties is caused, for example, by a tort. dec. it will not be possible to implement the article (Doganay, I.: Turkish Commercial Code Commentary, 1. Vol., Istanbul 2004, p. 202 et seq.).
23. As a matter of fact, the General Assembly of the Law dated 27.06.2019, 2017/13-608 E., 2019/810 K.; dated 19.09.2019 and dated 2017/13-620 E., 2019/914 K. the same principles were adopted in their numbered decisions.
24. 2 of Law No. 3095. default interest is regulated in article 1, and the interest rate even for commercial work. it is determined in the paragraph at the same rate as the legal interest. In the second paragraph, the creditor is granted the right to request at the rate of advance interest. For this reason, the creditor receives default interest on commercial business 1. as he may request at the legal interest rate specified in Article 2. he also has the right to request at the rate of advance interest based on the authority granted to him by the paragraph.
25. article 87 of the Turkish Commercial Code No. 6098. in its article under the heading “Elective Debt”, “In elective debts, unless otherwise understood from the legal relationship and the nature of the business, the choice of one of the actions belongs to the debtor.” the provision is available.
26. 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 actions belongs to the debtor. As for the type of interest to be selected, the right of choice is granted to the creditor by the provision of the law, as a result of the provision of the law regulating this legal relationship, the right of choice does not belong to the debtor, as in the general rule, but belongs to the creditor.
27. The right to choose is a right that, due to its legal nature, gives rise to innovation, which is used unilaterally, with the declaration of will that must be reached. A statement of will has its own consequences when it reaches the other party; the subject of the debt becomes clear for sure in a single act. Thus, the act becomes a definite and specific act, as if it was owed from the very beginning. An election declaration has effective consequences for the past. In this nature and feature, the right to choose is a right that gives rise to innovation and falls into the group of rights that give rise to modifier innovation. As a result, the existing legal (status) relationship with the exercise of the right to choose changes. The right to choose ends up being exercised because it is the right that gives rise to innovation. Therefore, it cannot be returned from the election declaration (Eren, p. 986-987).
28. For example, a trade receivable for which the plaintiff was opened to the petition, only “interest”, “Interest Legal” or “legal interest” if he’s mean (that is, explicitly, “the central bank short-term advances for a substantial rate of interest” the demand (if not), even though more kept reserves the right, Court, Central Bank short-term loans apply for rediscount interest rates are decided. Because, dec this behavior, the plaintiff is deemed to have waived the difference between the “interest rate applied by the Central Bank for short-term advances” and the “discount rate applied by the Central Bank for short-term loan transactions” (Kuru, B.: Civil Procedure, Volume II, Istanbul 2001, p.1754).
29. All these comments in light of the concrete case was evaluated; the Merchant in relation to the plaintiff’s case the defendant would get involved in business from the University of enforcement proceedings in the order that will take in collected for the purpose of legal interest that puts reserves the right to request commercial interest, has stated that operate with wanting to open; considering that the right to interest is an electoral and innovative right, the right to choose is exhausted by the use, although the requested and reserved right must be born from the same right in order to retain the right, commercial and legal interest are not born from the same right, therefore, no legal consequences can be attributed to the retention of the right to commercial interest, the plaintiff can no longer request the balance of commercial interest.
30. As such, the right of preference is used in the direction of legal interest while the follow-up is being made, therefore, since the interest rate that may be requested during the follow-up is clearly clear, the decision to resist the rejection of the case on the grounds that the interest rate cannot be changed later is in place.
31. However, in the decision to resist, it was stated that no action was taken to claim commercial advance interest during the collection of the price, although it was stated that the dispute could not be registered during the collection due to the fact that the payment was made through the enforcement agency, although it is not possible to participate in this justification, as a result, the decision was in place, the issue mentioned was not considered effective on the merits.
32. During the negotiations held at the General Assembly of the Law, Article 131/2 of the TCC. according to the article, a notification will be made if kept stored until the time of performance, the right to demand of interest can be requested at any time within the limitation period, during concrete enforcement proceedings requested a legal interest in the case, although it is obvious that are stored clearly and distinctly, the right to request commercial interest, legal rights independent of commercial interest and the lack of interest given that both the right to the title was born at the top of this right can be requested at any time within the limitation period, however on the basics by entering the plaintiff’s commercial interest to determine the right to request, and, although it has been suggested that the decision to resist should be overturned on different grounds that the adoption of the case should be decided if it was concluded that the right to ask for commercial interest was reached, this opinion was not adopted by the majority of the Board for the reasons described.
33. As a result, it was necessary to decide that the decision to resist, which is in accordance with the procedure and the law, should be upheld for various reasons and reasons described above.
IV. CONCLUSION:
For the reasons explained;
The rejection of the objections of the plaintiff’s attorney and the decision of resistance to be APPROVED with the different reason explained above,
Since the fee is paid in advance, there is no room for it to be taken again,
In accordance with Article 440 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with the provisional article 3 of the Code of Civil Procedure No. 6100, it was decided by a majority of votes on 07.07.2020 that the way of rectification is open within fifteen days from the notification of the decision.
