SUPREME Court of the Republic of Turkey
15.law office
Date: 2015/5589
Decision: 2016/3663
Date of Decision: 23.06.2016
RECEIVABLES – TRANSFER OF ALL RIGHTS AND RECEIVABLES SUBJECT TO LITIGATION AFTER THE LAWSUIT HAS BEEN FILED – ACTIVE LITIGATION LICENSE – RESUMING THE CASE FROM WHERE IT LEFT OFF AND ENTERING INTO THE BASIS OF THE WORK AND MAKING A DECISION ACCORDING TO THE RESULT AFTER THE ATTORNEYS OF THE PARTIES HAVE BEEN COLLECTED – THE PROVISION HAS BEEN OVERTURNED
SUMMARY: after the case is opened by the court to all of the rights and receivables of the case is transferred, because the contractor who filed the lawsuit, the company replaces the active locus standi is given and needs to be continued because the basics are entered on the case and the party representatives have been gathered to conclude an appropriate decision should be made after the assessment of the case with the procedural denial was not correct when wrong, the decision found to comply corruption.
(6100 pp. K. m. 125) (6098 P. K. m. 183)
Case: hearing date and number field above written assignment examination hearing is requested by the representative plaintiff temyizen the verdict for the plaintiff on the appointed day from the conveyance area attorneys, Attorney Attorney Attorney attorney and the defendant intervene and original … with … a … I met. The liquidator of the issuing company … has not arrived. After it became clear that the appeal had been filed within the deadline and the lawyers of the parties present were listened to, the work was left to be examined and decided on another day due to the lack of time. This time, after the papers in the file were read, the need for the job was discussed and considered:
Decision: the case of the plaintiff that the defendant signed work contracts with the contractor company between the business owner and unfair deductions arising from temporary admission muaraza created with the extension of time regarding men needed by determining the period of extension of time commitment the addition of the identification and addition, on the date of temporary admission, and the identification of needs to be done to be done by default as of this date, The Restitution of the cut as the progress payment delay penalty unfair contract out of work due to creep into the year, the cost of manufacturing and the price differences in material and workmanship from the collection of receivables is related to the prompt.
After the lawsuit was filed … with a dated notice of attorney, the contractor company that filed the lawsuit filed the claim, and by the date of notification, the defendant transferred the rights to claims and lawsuits with the receivables from the business owner, and the transferee submitted the notice to the court with a petition dated the transfer, requesting the collection of the receivable.
The defendant, the deputy of the business owner, filed a judicial appeal, asked for the dismissal of the case in terms of the statute of limitations, procedure and merits, 11.5 of the contract. in its article, there is a regulation that the contractor cannot assign all kinds of rights and receivables to others without the written permission of the administration, the assignments must be issued by a notary and must meet the records and conditions required by the administration, and it argued that they do not accept it because the assignment is not valid.
… with a dated petition that he has levied, he has requested substantive intervention.
Assigned by the Prohibition of the court resides and does not indicate that it is understood that the conveyance will follow suit, because the locus standi of the plaintiff in the sense assigned field-active antagonism from denial of the license terms of procedure, the main consideration of the case given in the sense of to continue in the terms of the trial intervention, since it is understood that it is not the court of First Instance, in case of intervention where the parties are merchants of the trade is also taken into consideration the fact that the charge of a denial of the petition of the court due to procedural decision was appealed by the plaintiff by counsel assigned to the field.
Transfer of receivables (assignment) is regulated by Articles 183 and 2 of the Turkish Code of Obligations No. 6098 and 183. in the first paragraph of the article, it was accepted that the creditor can transfer the receivable to a third party without seeking the consent of the debtor, unless the nature of the law, contract or work is prevented, in the ongoing articles, the form of validity, legal or judicial transfer and effect of the transfer agreement and the provisions of the transfer have been regulated. According to these regulations, as a rule, if there is a prohibition on assignment in the contract or it is tied to the consent of the borrower and there is no consent of the borrower, the security of the receivable cannot be brought against the borrower.
Transfer of assignment of receivables is different from the subject of the lawsuit, before trial and on the assignment of the receivable and the agreed payment at the stage of the execution of the contract in the event of progressive can be done while the era of the suit as its name suggests, however, after the opening of the case can be made. 125 of HMK No. 6100, which was in force on the date of the transfer of the subject matter of the case. it is regulated in the article. Article 1 of the said article. in paragraphs a and b of the paragraph, the plaintiff’s electoral rights are shown if the defendant transfers the subject matter of the case to a third party after the opening of the case. In the case of a concrete dispute, this issue is out of our question. Transfer of the subject matter of the case by the plaintiff 125. part 2. clause in the text of the article is edited and that “after filing the case, complicated by the plaintiff happens to be the case if the person who took it replaces the plaintiff in the pending lawsuit, and the trial resumes” was called.
125/2 of the HMK, which regulates the transfer of the subject matter of the case by the plaintiff to a third person. the provision of the article provided that the person who takes over will automatically replace the plaintiff and resume the case from where it left off, on the grounds that the third party who takes over will gain the title of plaintiff by law (ipsojure) and, accordingly, the right to pursue the case and the case will continue with the new plaintiff. According to this provision, the case will proceed between the third dec who took over the case and the defendant. For this purpose, the consent of the defendant to make a decision on this issue or for the third party taking over to replace the plaintiff is not sought. (Civil Procedure Law, Competent Legal Publications 1. printing Prof. Dr. Ramazan Arslan, Prof. Dr. Yilmaz, 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, in this case the person who has taken over will take the place of the plaintiff and continue the case that is being heard from where it left off. However, in this case, the defendant may assert his personal defense reasons against the new plaintiff (Competent Publications of Civil Procedure Law 12. printing Prof. Dr. Hakan Pekcanitez, Prof. Dr. Oguz Atalay, Prof. Dr. By Mohammad Ozeken on page 412. and the sequel).
In a concrete case, after the case was filed by the contractor … with payment of the fee on the date … with a notice of guarantee issued on the date of the case was first filed in the Commercial Court of First Instance … The receivables subject to the case in the main file No. 3, along with the rights to sue and claim. the person is transferred to …. Although the assignment was issued in plain writing, the transfer was legally realized because the liquidator of the plaintiff company accepted the contents of the assignment with a signed statement at the hearing dated. Although the title of the document in question is written as a guarantee, it is a certificate of transfer of the subject matter of the lawsuit, since it is made after the lawsuit is filed and the rights and receivables subject to the lawsuit are stated in the content that the claims and litigation rights have also been transferred. Since the plaintiff contractor was transferred to the subject of the lawsuit (respondent) … after the lawsuit was filed by the company, the plaintiff contractor replaced the company.
In this case, since all the rights and receivables subject to litigation have been transferred to … after the lawsuit has been filed by the court, HMK’s 125/2. prosecuting the contractor pursuant to Article replaces the active locus standi is given and needs to be continued because the basics are entered on the case and the party representatives have been gathered to conclude an appropriate decision should be made after the assessment of the case with the procedural denial was not correct when wrong, the decision found to comply corruption.
Conclusion: For the reasons described above, the appeals of the applicant who took over the case were OVERTURNED for the benefit of the decision by accepting the appeals, the TL trial attorney fee was taken from the defendant and given to the applicant who was represented by the proxy at the Supreme Court hearing, the appeal advance fee paid was returned to the applicant who appealed if requested, the applicant could request a correction of the decision within 15 days from the date of notification against the decision it was decided by a majority vote on 23.06.2016.
POST, VOTE AGAINST
183 Of the Turkish Commercial Code, which regulates the assignment of the receivable, that is, the transfer of the receivable. according to the provisions of the regulation in the article, which are also considered to have opposite meanings, if there is a prohibition on the transfer of the receivable in the agreement on the actual legal relationship, or if there is a condition of the creditor’s consent for the transfer to be valid, and if there is no such consent, there can be no mention that the transfer of the receivable is valid. The transfer of receivables is regulated in the Law of Obligations and is a saving transaction related to material law. Its validity and consequences must also be assessed in accordance with the provisions of the law in which it is regulated. 183, since there is also no special regulation in the TBK. and further, the conditions of validity of the articles are valid and assailable at all stages, and the transfer of the receivable must be after the lawsuit has been filed against the receivable 183. it does not require that the search for conditions in the article be abandoned.
If the transfer of the receivable is related to material law, but this transfer is after the lawsuit has been filed; who will have the title of plaintiff or defendant, how the procedural rights will be used by who is related to procedural law. Therefore, the rules of procedure contain regulations on what actions will be taken if the subject of the lawsuit is transferred by the creditor or debtor. The provision contained in the HMK on this issue is 125. the article is regulated in the second paragraph of the transfer of the plaintiff’s subject matter to the lawsuit. According to this; if, after the opening of the case, the subject matter of the case is to be transferred by the plaintiff, the person who has taken over takes the place of the plaintiff in the case under consideration and the case continues from where it left off.
