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 due to the “receivables” case between the parties, Ankara Dec 15. The decision on the dismissal of the case made by the Civil Court of First Instance was made by the Supreme Court on the appeal of the plaintiff’s deputy 13. At the end of the examination conducted by the Law Department, it was disrupted, and the Court’s decision to demolish the Private Apartment was resisted.
2. The decision to resist was appealed by the plaintiff’s deputy.
3. After the documents in the file were examined by the General Assembly of Law, they were discussed as required:
I. THE TRIAL 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.
Defendant’s Response:
5. The defendant’s deputy in the 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, arguing that he does not reserve his rights to an excess when withdrawing money, since there is no default, interest can only be requested from the date of follow-up, commercial interest cannot be requested because the defendant spends in the public interest, he asked for a decision to dismiss the case.
ruling:
6. Ankara 15. The Law of the Court of First Instance dated 06.03.2014 and dated 2013/174 E., 2014/164 K. by decision no.; “…The plaintiff sold the drug to the defendant, executed a follow-up on 10/09/2012 to pay the price of 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 of default before the follow-up, 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, while the right of preference was used in the direction of legal interest, so it is clear that the interest rate that can be requested during the follow-up then the interest rate cannot be changed by correcting; for this reason, it was decided to dismiss the case on the grounds that the claimant’s claim for the committed interest and interest rate was not in place…”.
The Decision to Break Up a Private Apartment:
7. Ankara 15. Within the period of opposing the above-mentioned decision of the First Instance Law Court, the acting plaintiff requested an appeal.
8. Supreme Court 13. Dated 17.02.2015 of the Legal Department and dated 2014/23773 E., 2015/4607 K. by decision no.;
“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 the absence of a hit in the appreciation of the evidence, the plaintiff must reject other appeals that are outside the scope of the following paragraph.
2-The plaintiff claimed that the defendant will receive an interest difference arising from the fact that, in accordance with the contract between him and the defendant, the defendant reserves the right to commercial interest on the payment order in the execution dec, at the stage of collection through the enforcement channel, and payments are made at legal interest. The Court decided that the creditor requested legal interest for the principal creditor in the follow-up request, and also reserved the right to request commercial advance interest and rate, that the preference right was used in the direction of legal interest while the follow-up was being made, so the interest rate that could be requested during the follow-up is clear, and then the interest rate cannot be changed by correction, so the claimant’s claim for the committed interest and interest rate is out of place on the grounds that the case of the creditor is not in place. Considering that the plaintiff is a merchant due to a commercial company, and the business of buying and selling medical drugs between the parties is a commercial business, it is obvious that the plaintiff may request that interest be dec at an advance interest rate that the company will receive, and he reserves the right to do so. In that case, the court should decide on the acceptance of the case in accordance with the expert report received, 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 decision no.; in addition to the previous decision grounds, “…Plaintiff sold drugs to defendant, executed on 10/09/2012 to pay the price of the drug sold, borrower objected to the amount of interest processed and the interest rate to be operated, borrower did not see evidence of default before the follow-up, creditor requested legal interest for the principal receivable in the follow-up request, and also reserves 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 is being made, for this reason, since the interest rate that can be requested during the follow-up is clear, the interest rate cannot be adjusted and changed later; for this reason, the claimant’s claim for the interest and interest rate is not in place, in any case, the claimant’s legal interest request continues with the enforcement proceedings, the file was closed after the payment was completed as of 22/01/2013, the right to request commercial advance interest reserved until the date of full payment of the debt was not processed, the right to request commercial interest is reserved after the debt is fully charged, the balance is not possible to request commercial interest with a bet, the following subject retained rights debt is paid in full as of the date of the absence, therefore, in any case, the debt, the end of all receivables are collectible, while the performance of any declaration of interest because the debt is not deemed to have been made where, when reversal of accrued interests for the decision to dismiss has been done, this part of the process of the finalization of the decision, the interest rate of the decision on dismissal of the action broke down, insistence is given to this part of, since it was understood that it would be appropriate to write the entire provision in the decision to insist that the decision to overturn was not determined separately, it was a conscientious opinion to decide as follows…” the decision to resist was made on the grounds that the decision to overturn was not determined separately.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the plaintiff’s deputy within the time limit.
II. DISPUTE
11. A dispute that comes before the General Assembly of Law by way of resistance; In a concrete case, since the plaintiff reserves the right to request commercial interest in terms of interest that will be processed rather than subject to enforcement proceedings, the balance is collected at the point where it is possible to claim commercial interest.
III. REASON
12. In terms of dispute resolution, it is worth mentioning the concepts of “interest” and “commercial interest” related to the issue.
13. The subject of the case is born during the period of the Code of Obligations No. 818 (BK), which was in force at the time the relevant contracts were issued, but the Law No. 6101 on the Force and Manner 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 at the date of the birth of the interest debt, if it is not 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. 120 of the CPC entitled “Default Interest”. item;
“…The annual default interest rate to be applied is determined in accordance with the provisions of the legislation in force at the date of the birth of the interest debt, if it has not been agreed in the contract.
The annual default interest rate to be decided by the contract cannot exceed one hundred percent of the annual interest rate established in accordance with the first paragraph.
Although the contractual interest rate has been decided, if the default interest rate has not been decided in the contract and the annual contractual interest rate is also higher than the interest rate specified in the first paragraph, the contractual interest rate will apply to the default interest rate” regulation.
15. Interest is a subsidiary right in terms of its legal nature, which expands the actual receivable. Therefore, the existence and continuation of interest-bearing debt depends, first of all, on the existence and continuation of the principal receivable. If the principal receivable right has not been born, the interest debt will not be born either. In addition, 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 pledge, bail, interest and penalty conditions, will also expire.
If the right to request the performance of the committed interest and the penalty condition is reserved by contract or by notification until the moment of execution, or if it is understood that the conditions and conditions are reserved, these interest and penalty conditions may be requested.
Special provisions regarding immovable pledge, valuable documents and concordat are reserved.”arranged as follows.
