Statute of limitations periods in the Turkish Obligations Code numbered 6098

Statute of limitations periods in the Turkish Obligations Code numbered 6098

Under the Turkish Obligations Code numbered 6098 (“the TOC” or “the Code”), there are time limitations, by means of which rights and receivables are barred by statute of limitations. Pursuant to the provision in the TOC, each receivable is subject to 10-year statute of limitations period, unless there is a provision to the contrary. However, these periods can vary for certain receivables. Nonetheless, in spite of the fact that there is no precise definition of the concept “statute of limitations” in the laws, there is a number of opinions in the doctrine. Accordingly, in the general sense, statute of limitations means the expiration of the periods regulated by the laws in the acquisition or forfeiture of a right.  

The provisions regarding statute of limitations and the periods concerning statute of limitations within the scope of the TOC are analyzed under separate headings in this newsletter.  

Statute of limitations period in obligor-obligee relationships arising from tortious acts

The article 72 of the TOC regulates the statute of limitations for indemnity claims and prescribes that an indemnity claim shall be barred by statute of limitations upon expiration of two years starting from the date that the damaged party becomes aware of the damage/loss and the indemnity obligor, and in any case, upon expiration of ten years starting from the date that the act has been committed.

The provisions contained in the article 72 of the TOC are as follows:  

“An indemnity claim shall be barred by statute of limitations upon expiration of two years starting from the date that the damaged party becomes aware of the damage/loss and the indemnity obligor, and in any case, upon expiration of ten years starting from the date that the act has been committed. However, if such indemnity arises from an act requiring a punishment for which a longer statute of limitations is prescribed by penal laws, such statute of limitations shall apply.     

If an obligation arises on the part of the damaged party due to a tortious act, the damaged party may at all times abstain from performing such obligation, even if the indemnity claim arising from the tortious act is barred by statute of limitations.”

Statute of limitations period in recourse claims

The article 73 of the TOC regulates the statute of limitations for recourse claims and prescribes that a recourse claim shall be barred by statute of limitations upon expiration of two years starting from the date that the indemnity has been paid in full and the jointly liable person has been found out, and in any case, upon expiration of ten years starting from the date that the indemnity has been paid in full.

The provisions contained in the article 73 of the TOC are as follows: 

“A recourse claim shall be barred by statute of limitations upon expiration of two years starting from the date that the indemnity has been paid in full and the jointly liable person has been found out, and in any case, upon expiration of ten years starting from the date that the indemnity has been paid in full.  

The person who is requested to pay the indemnity has to notify the circumstance to the persons with whom he is jointly liable. Otherwise, the statute of limitations shall start to run on the date that such notification might be made in accordance with the rules of objective good faith.”

Statute of limitations period in obligor-obligee relationships arising from unjust enrichment

The article 82 of the TOC regulates the statute of limitations in obligor-obligee relationships arising from unjust enrichment and prescribes that the right to claim arising from unjust enrichment shall be barred by statute of limitations upon expiration of two years starting from the date the right holder finds out that he has the right to reclaim, and in any case, upon expiration of ten years starting from the date that the enrichment has taken place.   

It should be stated that, if the enrichment has taken place through acquisition of a right to receivable by the unjustly enriched person, the other party may abstain from performing this obligation, even if his right to claim is barred by statute of limitations.

The provisions contained in the article 82 of the TOC are as follows: 

“The right to claim arising from unjust enrichment shall be barred by statute of limitations upon expiration of two years starting from the date the right holder finds out that he has the right to reclaim, and in any case, upon expiration of ten years starting from the date that the enrichment has taken place.  

If the enrichment has taken place through acquisition of a right to receivable by the unjustly enriched person, the other party may abstain from performing this obligation, even if his right to claim is barred by statute of limitations.”

Periods and other provisions regarding statute of limitations

According to the article 146 of the TOC, each receivable is subject to ten-year statute of limitations, unless there is a provision to the contrary in the Code. However, the Code contains provisions to the contrary. Thus, the article 146 of the TOC prescribes that five-year statute of limitations period shall apply to certain receivables.   

Within this context, the provision in the article 146 of TOC regulating the ten-year statute of limitations is as follows:  

“Unless there is a provision to the contrary in the Code, each receivable is subject to ten-year statute of limitations.”

However, according to the article 147 of the TOC, the following receivables are subject to five-year statute of limitations;   

“Five-year statute of limitations shall apply to the following receivables:  

1. Rents, interests on principal, and other periodic obligations such as salary.  

2. Accommodation fees in locations such as hotels, motels, pensions and holiday villages, and food and beverage fees in restaurants and similar locations.  

3. Receivables arising from minor works of art and small-scale retail sales.

4. In a partnership, receivables which arise from the deed of partnership and are between the partners or between the partners and the partnership; between the managers, representatives, auditors of a partnership and the partnership or the partners.  

5. Receivables arising from proxy, commission and agency contracts, and brokerage contracts other than commercial brokerage fee receivables.

6. Receivables arising from a contract of work, with the exception of the case that the contractor does not fulfill his obligations at all or properly at his gross fault.”

It is crucial to state that, according to the TOC art. 148 setting out that the periods are final, the statute of limitations periods are final and shall not be altered by contract. The legal arrangement regarding commencement of the statute of limitations is dealt in the provisions of the article 149 of the TOC.  

Within this context, the provisions regarding commencement of the statute of limitations are regulated by the article 149 of the TOC:  

“The statute of limitations shall start to run as soon as the receivable becomes due and payable.

In cases where the receivable will become due and payable upon notification, the statute of limitations shall start to run as from the day when the notification might be made.”

The provisions contained in the article 151 of the TOC regulate the calculation of the periods regarding statute of limitations. According to the article, while calculating the periods, the day when the statute of limitations commences shall not be taken into account, and the statute of limitations shall be deemed to have taken place only upon the last day of the period has also elapsed without exercising the right.

The provisions in the article 151 of the TOC, regulating the calculation of the periods regarding statute of limitations, are as follows:   

“While calculating the periods, the day when the statute of limitations commences shall not be taken into account, and the statute of limitations shall be deemed to have taken place only upon the last day of the period has also elapsed without exercising the right.  

The provisions regarding calculation of the periods for performance of obligations shall also apply to the calculation of statute of limitations periods.”

It is crucial to state that, according to the article 152 of the TOC, when the principal receivable is barred by statute of limitations, the interest and other receivables appurtenant thereto shall also be deemed to have been barred by statute of limitations.  

On this basis, the TOC art. 152 provision regulating the statute of limitations for appurtenant receivables is as follows:   

“When the principal receivable is barred by statute of limitations, the interest and other receivables appurtenant thereto shall also be deemed to have been barred by statute of limitations.”

Furthermore, in certain cases, the statute of limitations does not start to run, or stops running if it has started to run. However, in other certain cases, the statute of limitations is interrupted.  

In certain cases, the statute of limitations does not start to run, or stops running if it has started to run. These cases are listed by the TOC.  

The provision of the article 153 of the TOC, listing the cases where the statute of limitations stops running, is as follows;  

“In the following cases, the statute of limitations does not start to run, or stops running if it has started to run:  

1. During the custody, for the children’s receivables from their parents.  

2. During the guardianship, for the receivables of those under guardianship from the guardian or from the State due to guardianship transactions.  

3. As long as the marriage continues, for one spouse’s receivables from the other spouse.  

4. During the employment relationship, for domestic workers’ receivables from their employers.

5. As long as the obligor has a usufruct on the receivable.  

6. As long as it is not possible to assert a receivable before Turkish courts.  

7. In the confusion of debts, in case the confusion ceases to exist retrospectively in the future, for the period that will elapse until this case emerges. At the end of the day when the causes stopping the statute of limitations cease to exist, the statute of limitations shall start to run, or shall resume running as it has started before it stopped.”

The provision of the article 154 of the TOC, listing the cases where the statute of limitations is interrupted, is as follows;  

“In the following cases, the statute of limitations is interrupted:  

1. If the obligor acknowledges the obligation, in particular, if the obligor has paid interest or performed the obligation in part or pledged something as security or appointed someone as his guarantor.  

2. If the obligee has applied for a court or an arbitrator through litigation or plea, conducted enforcement proceedings or applied for bankrupt’s estate.”

According to the provision in the article 156 of the TOC, with the interruption of the statute of limitations, a new period shall start to run.

Furthermore, it is not possible to waive of statute of limitations in advance. The same provision shall also apply in case of the waiver by one of the joint obligors, in case of the waiver by one of the obligors of an obligation which is indivisible and cannot be claimed towards the other ones. Likewise, the waiver by the principal obligor shall not be asserted towards the guarantor.  

The provisions of the article 160 of the TOC, containing the legal arrangements regarding waiver of statute of limitations, is as follows;  

“It is not possible to waive of statute of limitations in advance.

The waiver by one of the joint obligors shall not be asserted towards the other ones.

The same provision shall also apply in case of the waiver by one of the obligors of an indivisible obligation.  

The waiver by the principal obligor shall not be asserted towards the guarantor.”

It is crucial to state that, unless the objections regarding statute of limitations are brought forward by the parties, the judge is not entitled to carry out an ex-officio assessment on this matter.  

The provision related to asserting statute of limitations is regulated by the article 161 of the TOC;   

“Unless statute of limitations is asserted, the judge is not entitled to consider this matter ex-officio.”

Statute of limitations period in cases of defect liability

The article 231 of the TOC regulates the statute of limitations period for cases of defect liability. According to the provision contained in the article; unless the seller assumes the liability for a longer period, all kinds of lawsuits arising from defect liability shall be barred by statute of limitations upon two years have elapsed starting from the transfer of the sold one to the buyer, even if the defect has been revealed subsequently. The right to plea, which arises from a defect notified by the buyer within two years starting from the transfer of the sold one to the buyer, shall not cease to exist upon expiration of this period.  

However, if the seller is at gross fault in transferring the sold one defectively, the seller shall not enjoy the two-year statute of limitations period.

Statute of limitation period in real estate sales

The article 244 of the TOC prescribes that, in case the sold real estate does not meet the surface area written in the sale contract, the seller is obliged to pay to the buyer an indemnity for the lacking surface area, unless there is an agreement to the contrary.  

The second paragraph of the same article contains provisions related to statute of limitations. The paragraph states that, in case the sold real estate does not meet the surface area recorded into the register of title deeds on the basis of an official measurement, the seller is not obliged to pay indemnity, unless assumed particularly by the seller.  

Nonetheless, the lawsuits arising from the case that a structure is defective shall be barred by statute of limitations upon five years have elapsed starting from the transfer of the ownership, and upon twenty years have elapsed starting from the transfer of the ownership if the seller is at gross fault.  

Statute of limitations period in borrower-lender relationship

The article 389 of the TOC regulates the statute of limitations in respect of borrowing and prescribes that the borrower’s claims regarding delivery of the borrowed one and the lender’s claims regarding taking delivery of the borrowed one shall be barred by statute of limitations upon six months have elapsed starting from the other party’s default in this regard.  

The borrowing-related provision of the article 389 contained in the TOC is as follows;  

“The borrower’s claims regarding delivery of the borrowed one and the lender’s claims regarding taking delivery of the borrowed one shall be barred by statute of limitations upon six months have elapsed starting from the other party’s default in this regard.”

Statute of limitations period in the acceptance of a work

The article 478 of the TOC regulates the statute of limitations applicable in the acceptance of a work. Within this context; if the contractor has created a defective work, the lawsuits that will be filed on this ground shall be barred by statute of limitations upon two years have elapsed in the works other than immovable structures and upon five years have elapsed in immovable structures and upon twenty years have elapsed if the contractor is at gross fault, regardless of the characteristic of the defective work, starting from the delivery date in all the above cases.    

The provision of the article 478 in the TOC, regulating the statute of limitations in the acceptance of a work, is as follows;  

“If the contractor has created a defective work, the lawsuits that will be filed on this ground shall be barred by statute of limitations upon two years have elapsed in the works other than immovable structures and upon five years have elapsed in immovable structures and upon twenty years have elapsed if the contractor is at gross fault, regardless of the characteristic of the defective work, starting from the delivery date in all the above cases.”

Conclusion

As can be seen, according to the TOC, each receivable shall be subject to 10-year statute of limitations, unless there is a provision to the contrary. However, as specified above, there can be different provisions for certain receivables. It is crucial to state that it would not be a correct approach if it is accepted that the debt, obligation or the receivable ceases to exist when the statute of limitations takes place. In other words, it should be adopted that it will no longer be possible to sue for such debt, obligation or receivable when the relevant statute of limitations takes place. This is because; the performance or fulfillment shall also be valid, in case a debt, an obligation or a receivable is barred by statute of limitations, however, such debt or receivable is paid or such obligation is fulfilled without knowing this fact.  

On the legal platform, statute of limitations is of a plea (defense, ground of personal defense) nature. Therefore, if an obligor wishes to abstain from performing an obligation barred by statute of limitations, such obligor may, by submitting this plea, assert that the obligation is no longer suable. It should be stated that, according to the article 161 of the TOC, if statute of limitations is not asserted, the judge shall not consider this matter on his/her own motion. Statute of limitations-related objections must be submitted by the parties.