| Simge YOLSAL Lawyer | Zeliha ULUAĞAÇ Lawyer |
ABSTRACT This article examines the legal uncertainties regarding the litigability of future claims and the effects of the Court of Cassation’s Decision to Unify Case Law dated 18.12.2022 within the framework of judicial and doctrinal approaches.
Keywords: Future Claim, Legal Interest, Conditions of Action, Maturity, Premature Action, Court of Cassation Decision to Unify Case Law, Substantive Law, Procedural Law, Fixed Attorney Fee, Proportional Attorney Fee.
INTRODUCTION Whether claims whose due date has not yet arrived (future claims) can be litigated, and if litigated, how the court will evaluate such claims in terms of conditions of action and substantive law, has constituted a contentious area both in judicial decisions and in legal doctrine. Upon examination of court decisions rendered in disputes involving future claims, the question has arisen before courts whether such actions should be dismissed on the merits or on procedural grounds. As it was understood that courts had rendered contradictory decisions on this matter, the Court of Cassation decided to unify the case law on this subject. In this direction, the Decision to Unify Case Law dated 18.02.2022 and numbered E.2019/5, K.2022/1 regarding the litigability of future claims has been addressed in this study.
Summary of the Court of Cassation’s Decision to Unify Case Law The Court of Cassation General Assembly for the Unification of Case Law (“YİBBGK”) has signed the Decision to Unify Case Law numbered E.2019/5, K.2022/1 dated 18.02.2022 (“Decision”)¹ with the aim of resolving the disagreement between the Court of Cassation General Assembly of Civil Law and the Court of Cassation Civil Chambers regarding whether an action filed for claims whose performance time has not yet arrived should be dismissed on the merits or on procedural grounds.
In the Decision, it was ruled that in an action filed for claims whose performance time has not yet arrived, the plaintiff cannot be said to possess legal interest, performance of the obligation cannot be demanded before the performance time, the creditor does not have a vested and current interest in this situation, an action filed for a claim whose performance time has not yet arrived constitutes a prematurely filed action, and given that the plaintiff does not yet have legal interest in filing such action, the action should be dismissed on procedural grounds pursuant to Article 115/2 of the Code of Civil Procedure numbered 6100 (“CCP” or “Code”)² and consequently, the attorney fee to be determined should be fixed.
The Views of Different Civil Chambers Mentioned in the Decision According to the Court of Cassation 19th Civil Chamber (now abolished), in cases where the birth of a claim or its claimability is made subject to a condition by the parties, if such claim is made the subject matter of an action, the court will need to determine whether the condition has been fulfilled or not; therefore, a decision to dismiss such an action constitutes a dismissal on the merits. In a similar vein, in negative declaratory actions and actions for cancellation of objections filed upon objection due to execution proceedings initiated regarding a non-mature claim, after the court determines whether the creditor has a claimable mature claim as of the date of execution, a decision can be rendered, and the dismissal decision rendered by the court is of the nature of dismissal on the merits; therefore, it was stated that a decision should be rendered for proportional attorney fees. It was further asserted that such actions, referred to in doctrine and practice as “prematurely filed actions,” are of the nature of dismissal on the merits and therefore proportional attorney fees should be ruled; these situations are not evaluated within the scope of “legal interest” regulated as a condition of action in Article 114/11-h of the CCP, and Article 257/2 of the Execution and Bankruptcy Law also supports this view.
According to the Court of Cassation 4th, 8th, 9th, 11th, (abolished) 15th, (abolished) 22nd, (abolished) 23rd Civil Chambers and the Court of Cassation General Assembly of Civil Law, maturity expresses that performance has become claimable by the creditor, and a mature obligation means the obligation has become performable. In obligations whose due date has not yet arrived, a certain period must pass for the obligation to become performable and for its performance to be claimable. The parties may link the maturity of the obligation to a specific date; in this case, the obligation cannot be claimed until the due date arrives. If an obligation whose performance time has not yet arrived is claimed, the action will be dismissed on procedural grounds due to lack of legal interest. Exceptions to this are cases where the debtor declares before the due date that they will not perform their obligation, or where the impossibility of performance of the obligation becomes evident before the due date. For this reason, in cases where the action is filed prematurely, due to the absence of conditions of action, the action should be dismissed on procedural grounds, and as stated in Article 7/2 of the Minimum Attorney Fee Tariff, a fixed attorney fee should be ruled. On the other hand, it was expressed that the Court of Cassation General Assembly of Civil Law also had decisions in the direction that a dismissal on the merits should be rendered in an action filed for a claim whose performance time had not yet arrived, and as it was understood that contradictory decisions were rendered on this matter, the case law needed to be unified.
Evaluation of the Decision in Line with the Doctrine’s Approach to the Decision and the Subject Matter of the Decision The Decision addresses whether an action filed for future claims should be dismissed on the merits or on procedural grounds, and consequently whether the attorney fee to be ruled against the plaintiff should be proportional or fixed. Actions filed regarding future claims addressed in the Decision are referred to in doctrine and judicial decisions as “premature action, early action, out-of-season action”³. Üstündağ stated that the fact that a right has not yet arisen constitutes a defense related to the merits of the action rather than a condition of action⁴ and divided conditions of action into two as conditions of action related to substantive law and conditions of action related to procedural law, evaluating the claimability of a right or obligation among conditions of action related to substantive law⁵. According to the author, in future claims and conditional claims, since the creditor does not have a right to claim before the fulfillment of the condition or the arrival of the due date, a performance action cannot be filed at this point, but a declaratory action can be filed. Furthermore, according to the author, although an action filed for a claim whose due date has not yet arrived despite the existence of a due date should be dismissed with a procedural ruling, this procedural dismissal should be based on conditions of action related to substantive law rather than lack of legal interest. According to Postacıoğlu/Altay, although future claims and conditional claims cannot be made the subject of a performance action since the creditor does not have a right to claim in the period before the fulfillment of the condition or the arrival of the due date, it is possible for the creditor to file a declaratory action as they may have legal interest in filing a declaratory action⁶. Furthermore, it is expressed that in cases where the due date of the claim has not arrived, the defendant party will assert during the trial that the due date has not arrived and therefore there is no legal interest, thus this matter is virtually in the nature of a plea and cannot be taken into consideration by the court ex officio.
In an article published after the Decision was rendered regarding the evaluation of the Decision, Özekes stated that the concept of maturity is a substantive law concept related to performance time, and therefore evaluating maturity as a procedural issue to be resolved at the beginning of the trial by including it within the scope of legal interest, one of the conditions of action, is not compatible with the content of this concept; it is not possible to evaluate substantive law matters within legal interest; in a scenario where maturity is accepted as a condition of action, a non-mature invalid contract would be dismissed due to maturity before the invalidity of the contract is discussed, thus maturity would be taken into consideration as if an invalid contract were valid, and maturity in an invalid contract would have been discussed; furthermore, since qualifying maturity as a condition of action would result in it being of public order, this would lead to changes in the consequences attached to maturity in substantive law; therefore, maturity, which is in the nature of a plea in substantive law, cannot be made a condition of action; moreover, general conditions of action are listed in the CCP, and this situation does not constitute a special condition of action either⁷.
In another article written by Özekes and Boran Güneysu, it was emphasized that whether a claim has reached its due date or not, whether it is mature, is a matter concerning substantive law, and in such cases the action should be dismissed on the merits rather than on procedural grounds⁸. Pekcanıtez/Özekes/Atalay state that maturity is a matter concerning substantive law rather than procedural law, this substantive law matter may mean a clear lack of legal interest in the concrete case depending on the situation, but maturity is not a situation that can be determined from the beginning of the action and may change depending on the situation⁹.
However, in doctrine, Budak and Yağcı, finding the conclusion reached in the Decision appropriate, state that in an action filed for a claim that is not yet mature, the court should dismiss the action on procedural grounds due to lack of legal interest on the grounds that the performance time has not yet arrived¹⁰.
Conditions of action are necessary for the court to be able to examine the merits of an action; if an action is filed without one of these conditions, although the action is deemed to have been filed, when the court detects the deficiency of conditions of action, it will decide to dismiss the action on procedural grounds due to absence of conditions of action without examining the merits of the action. As understood from these expressions, the absence of a condition of action is of a nature that may prevent the merits of the action from being examined. Furthermore, pursuant to Article 115/1 of the CCP, conditions of action must be taken into consideration ex officio by the judge at every stage of the trial¹¹.
The fact that the concept of maturity, which is also discussed in the Decision, is predominantly regulated in substantive law and the fact that the claim not yet being mature constitutes a plea in terms of substantive law, accepting the concept of maturity as a condition of action will constitute a violation of the nature of the concept. Since while pleas cannot be taken into consideration ex officio by the judge even if they are clearly understood from the file during the trial, conditions of action, as expressed above, are taken into consideration ex officio by the judge at every stage of the trial. Moreover, since conditions of action are conditions sought for the merits of an action to be examined, if maturity is accepted as a condition of action, it will be a matter that needs to be resolved before entering into the merits of the action, which situation will cause many difficulties in our legal system¹².
In this Decision, which the Court of Cassation drafted with the aim of eliminating contradictions and disagreements, a subject matter related to substantive law and requiring detailed discussion has been concluded by reducing it to a condition of action with a simple interpretation, as also stated by Özekes and Boran Güneysu¹³. Moreover, although concepts such as performance, principles of performance, performance time, mature–future obligation, and the importance of performance time were explained in detail in the Decision, in case claims whose due date has not arrived are litigated, it was virtually stated that the action would be dismissed on procedural grounds due to absence of legal interest among conditions of action, and an attempt was made to reach a conclusion without providing any satisfactory reasoning. Although the Court of Cassation introduced the relevant Decision with the aim of eliminating contradictions and unifying case law, this Decision, rendered without satisfactory reasoning, contrary to its purpose of issuance, presents an approach that may lead to legal uncertainties and difficulties in practice.
CONCLUSION Consequently, the litigability of future claims has constituted an important testing ground in determining the boundaries of the concepts of legal interest and conditions of action. The Court of Cassation’s Decision to Unify Case Law dated 18.12.2022, while being an important step with the aim of eliminating uncertainties in this field, has also led to the emergence of new legal questions with the deficiencies and contentious interpretations contained therein. Although it is clear that the Decision aims to provide unity in judicial decisions, more comprehensive evaluations are needed in doctrine and practice. In this context, the correct interpretation of the principle of legal interest and the concept of maturity will play a critical role in the resolution of future disputes.
¹ Court of Cassation Unification of Case Law Board’s decision numbered E. 2019/5, K. 2022/1 dated 18.02.2022 (Official Gazette dated 04.11.2022, numbered 32003).
² Official Gazette dated 04.02.2011 and numbered 27836.
³ Muhammet ÖZEKES, Nilüfer Boran GÜNEYSU, “Evaluation of Out-of-Season (Premature/Early) Action Within the Scope of Judicial Decisions”, Istanbul Law Review, 2023, p. 865-866.
⁴ Saim ÜSTÜNDAĞ, Civil Procedure Law, Istanbul 2000, p. 281.
⁵ ÜSTÜNDAĞ, op. cit., p. 283-285.
⁶ İlhan E. POSTACIOĞLU, Sümer ALTAY, Civil Procedure Law Lectures, Istanbul 2015, p.225.
⁷ Muhammet ÖZEKES, “Does an Action Filed for a Non-Mature Claim Concern Procedure or Merits? A Brief Evaluation on a Very New Decision to Unify Case Law of the Court of Cassation on the Subject (Access Date 18.12.2024) https://www.hukukihaber.net/muaccel-olmayan-alacak-icin-acilan-dava-uslu-mu-esasi-mi-ilgilendirir-yargitayin-konuyla-ilgi-li-cok-yeni-bir-ibk-uzerine-kisa-degerlendirme
⁸ ÖZEKES, BORAN GÜNEYSU, op. cit., p. 881 et seq.
⁹ Hakan PEKCANITEZ, Oğuz ATALAY, Muhammet ÖZEKES, Civil Procedure Law, Istanbul 2023, p. 216-217, fn. 10.
¹⁰ Ali Cem BUDAK, Mustafa Okan YAĞCI, “Out-of-Season Action: Filing an Action Before Its Time”, Journal of Justice, 2023, p.17-46, p. 40-43; Although the authors find it appropriate for an action filed for claims whose due date has not arrived to be dismissed on procedural grounds due to lack of legal interest, it is stated that they do not agree with the determinations in the Decision regarding the concept of legal interest in the form that “this condition of action must exist at the moment the action is filed, waiting cannot be expected for the deficiency in this regard to be remedied, and this condition cannot be completed subsequently”.
¹¹ Servet KANTARCIOĞLU, Examination of Conditions of Action in Civil Procedure Law Within the Framework of Article 115 of the Code of Civil Procedure, Istanbul 2024, p. 112.
¹² KANTARCIOĞLU, op. cit., p. 113.
¹³ ÖZEKES, BORAN GÜNEYSU, op. cit., p. 904.