General Assembly of Law
Base 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, 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 Court of First Instance, 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 sentence in the decision to insist that the following is the conscientious opinion to make a decision…” the decision to resist was made on the grounds that the decision to overturn was not determined separately and the parts of the decision that were upheld and corrupted were 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 cannot exceed fifty percent of the annual interest rate determined in accordance with the first paragraph” has the provision.
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 more than 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, by its legal nature, a subsidiary right that extends the original 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.
17. The creditor must reserve this right in order to request the processed interest receivables when the principal receivables expire. Really, TBK m. According to 131/II, these interest rates cannot be requested unless it has been reported that the right to request interest that has already been processed is reserved or the nature of the situation has been understood. Also TBK m. according to 152, when the principal receivable expires, the committed interest also expires. In the same way, if the creditor transfers the original receivable, it is also considered to have transferred the interest receivables (TBK m. 189/I-II; Eren, p. 1001).
18. 1.The Law No. 3095 on Legal Interest and Default Interest, which contains special regulations on interest, is entitled “Legal Interest”. the substance,
“In cases where interest must be paid in accordance with the Code of Obligations and the Turkish Commercial Code, if its amount is not determined by the contract, this payment is made at an annual rate of twelve percent.
The president is authorized to set this rate on a monthly basis, reduce it to ten percent or increase it by one.” it includes editing.
19. 2 Of the same Law entitled “Default Interest”. item;
“A debtor who defaults on the payment of a certain amount of money is obliged to pay default interest for the past days in accordance with the rate established in Article 1, unless otherwise agreed by the contract.
If the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances on December 31 of the previous year is more than the amount described above, default interest on commercial business may be requested at this rate even if there is no dec contract. December June 30, If the advance interest rate is five percentage points or more different from the advance interest rate applied on December 31 of the previous year, this rate will be valid in the second half of the year.
In cases where the amount of default interest is not agreed in the contract, if the amount of default interest is higher than the amount stipulated in the above paragraphs, the default interest cannot be less than the amount of default interest”.
20. In accordance with the aforementioned 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 in commercial dec.
21. 3 Of the Turkish Commercial Code No. 6762 (TCC), which must be applied as of the date of entry into force, the plaintiff is the merchant in the dispute at hand. article ” All treatment, acts and works related to a trading house or factory or other institution operated in a commercial way, as defined in this law, are commercial affairs.” 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, 21/2 of the Turkish Commercial Code No. 6762. in its article, it is established that contracts that are of commercial business nature for only one of the parties will also be considered commercial business for the other unless there is a provision to the contrary in the law. Accordingly, 21/2 of the Turkish Commercial Code. 3 of the TCC for one of the parties to the dispute in order to apply the commercial default interest in accordance with Article 3 of the Turkish Commercial Code. within the scope of the article, it is essential that there is a commercial business and that this commercial business dec caused by the existing “contractual relationship-contract”between the person who is a merchant and the person who is not a merchant. 21/2 Of the Law if the dispute between the two parties arises, for example, from a tort.dec. it will not be possible to apply the article (Doganay, I.: Commentary to the Turkish Commercial Code, 1. Vol., Istanbul 2004, p. 202 et seq.).
23. As a matter of fact, the Law of the General Assembly 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 have been adopted in their numbered decisions.
24. 2 of the Law No. 3095. default interest is regulated in Article 1 of the interest rate even for commercial works. in the paragraph, it is determined at the same rate as the legal interest. In the second paragraph, the creditor was granted the right to request an advance interest rate. For this reason, the creditor determines the 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 an advance interest rate based on the authority granted to him by the paragraph.
25. 87 of the CPC No. 6098. in the article entitled “Elective Debt“,” In elective debts, unless otherwise understood from the legal relationship and the nature of the work, the choice of one of the actions belongs to the debtor.” the provision is available.
26. As it can be seen, in selective debts, unless otherwise understood from the legal relationship and the nature of the work, the choice of one of the actions belongs to the debtor. As for the type of interest to be selected, since the right to choose is granted to the creditor by law, the right to choose with a result arising from the law governing this legal relationship 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, by its legal nature, gives rise to innovation, which is used unilaterally, with the necessary declaration of will. A statement of will has its own consequences by reaching the opposite party; the subject of the debt becomes clear for sure in a single action. Thus, the action takes the form of a definite and definite action, as if it had been borrowed from the beginning. The statement of choice brings effective results to the past. With this quality and feature, the right to choose is a right that gives rise to innovation and belongs to the group of rights that give rise to a changing innovation. As a result, the current legal (status) relationship with the exercise of the right to choose changes. The right to choose ends up being used because it is the right that gives birth 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 the plaintiff is considered to have waived the difference between the “interest rate applied by the Central Bank for short-term advances” and the “re-discount rate applied for short-term credit transactions” with this behavior (Kuru, B. Dec.: Legal Procedure 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; of interest because it is a birth right of the right to the right to choose selective and innovation are being used, but with the demand for a right to be retained depleted’s kept the same rights that arise from the fact that, despite the commercial and legal interests and rights are not born the same, therefore reserved the right to commercial interest cannot connect to be without any legal effect, considering that the plaintiff no longer might want to balance the commercial interest will be mentioned.
30. In this case, the right of preference is used in the direction of legal interest while the follow-up is being made, so the interest rate that can be requested during the follow-up is clear, and the decision to resist the decision that decides to reject the case on the grounds that the interest rate cannot be changed later is in place.
31. However, despite the fact that the decision to resist was made through the enforcement agency, the dispute cannot be registered during the collection, although it is impossible to agree with this justification, as as a result, the decision has not been considered effective on the merits.
32. 131/2 Of the CPC during the meetings held at the General Assembly of Jurisprudence. 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 the different grounds that if it is concluded that it has the right to request commercial interest, the decision should be made to accept the case, this opinion has not been adopted by the majority of the Board for the reasons described.
33. As a result, it was necessary to decide whether the decision to resist, which is in accordance with the procedure and the law, should be upheld for the various reasons and reasons described above.
IV. RESULT:
For the reasons described;
CONFIRMATION of the decision of the plaintiff’s deputy to resist the rejection of appeals with different reasons described above,
Since the fee is received in advance, there is no place for its re-receipt,
provisional 3 of the Code of Civil Procedure No. 6100. article 440 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance with the article, the decision was made by a majority of votes on 07.07.2020, with the possibility of correcting the decision within fifteen days from the notification of the decision, and the decision was made by a majority of votes on 07.07.2020.
