Action for Undetermined Claims and Its Comparison with Partial Actions

The action for undetermined claims is an exception to the requirement under Art. 119/1-(ğ) of the Code of Civil Procedure (HMK) that the relief sought be stated clearly. Regulated in Art. 107 HMK, the action for undetermined claims allows a claimant who cannot determine the relief sought with certainty to avoid suffering a loss of rights or being ordered to pay high litigation costs. In addition, the action for undetermined claims eliminates the risk of the limitation period expiring for the entire receivable.

“Article 107 - (1) Where the creditor cannot be expected to determine the amount or value of the receivable fully and precisely on the date the action is filed, or where this is impossible, the creditor may file an action for undetermined claims by stating the legal relationship and a minimum amount or value.

(2) As soon as it becomes possible to determine the amount or value of the receivable fully and precisely on the basis of the information provided by the opposing party or the results of the investigation, the plaintiff may increase the claim stated at the outset of the action without being subject to the prohibition on expanding the claim.

(3) Furthermore, where a partial action for performance can be filed, a declaratory action may also be filed, and in that case a legal interest is deemed to exist.”

“A person seeking to enforce their rights may be unable to establish the entire receivable precisely, even though they know and can establish at least the legal relationship on which the claim will be based, the person against whom it is directed and the amount they will claim arising from that relationship. Such a situation may arise in particular in claims for compensation where the damage cannot be determined at the outset but can be fully established only after an examination. Where the creditor cannot be expected to determine the amount or value of the receivable fully and precisely on the date the action is filed, or where this is impossible, the action for undetermined claims makes it possible for the creditor to file an action for a receivable by stating the legal relationship and a minimum amount or value.” (Court of Cassation, Assembly of Civil Chambers (YHGK), Docket No. 2014/15-439, Decision No. 2016/207, 2.3.2016)

An action for undetermined claims is brought with a provisional request for relief. The provisional request for relief is the relief that the plaintiff is able to determine. Once the relief sought becomes determinable, the outstanding court fee is paid and the provisional request for relief turns into a definitive request for relief. As stated above, the plaintiff will thus be able to change the relief sought without exercising the right of amendment of claim (ıslah), without being subject to the prohibition on expanding or changing the claim, or without obtaining the defendant’s consent.

Apart from this, all the facts on which the relief sought is based must also be stated. Where the facts are not known or a causal link cannot be established in the case, an action for undetermined claims cannot be filed. In such actions, only the relief sought is undetermined. All other matters must be determined.

“Where an action for undetermined claims or a declaratory action is filed, the creditor, even if not stating the full amount, must specify the legal relationship concretely at the outset of the action and indicate the minimum amount to the extent that the creditor is able to establish it.” (YHGK, Docket No. 2014/15-439, Decision No. 2016/207, 2.3.2016)

1. What statements must an action for undetermined claims contain? Until when can a petition to increase the claim be filed?

For the claim to be stated clearly, it will be appropriate in actions for undetermined claims to write in the section on the subject of the action that the provisional request for relief is undetermined, and also to state in the body of the petition and in the relief sought that a petition to increase the claim will be filed once the remaining amount is determined. The increase of the remaining amount, which will become definite as a result of the investigation conducted by the court, may be requested until the end of the investigation stage.

“A plaintiff who has filed an action for undetermined claims shall notify the court of the definitive request for relief after the receivable has become determinable. This determination may take place after the exchange of pleadings, that is, after the defendant has submitted its evidence to the court, or during the investigation, particularly at the stage of examination of the evidence. In any event, although the relief sought may be determined until the end of the investigation, nothing prevents this determination from being made at an earlier stage.” (Court of Cassation, 3rd Civil Chamber, Docket No. 2019/5988, Decision No. 2020/1845, 2.3.2020)

2. What are the conditions of an action for undetermined claims? In which cases can an action for undetermined claims be filed?

First of all, as also stated in the Justice Committee’s reasoning, “For the creditor to file such an action, it must genuinely not be possible for the creditor to determine fully and precisely the amount or value for which the action will be filed, or this must be objectively impossible. If the amount of the action to be filed is known or can be established, such an action cannot be filed.” Where the amount to be claimed in the action cannot be determined fully and precisely as of the date the action is filed, the action may be filed by claiming a minimum amount.

“In the present case, the plaintiff filed the action at hand by stating in the statement of claim that it was an action for undetermined claims regulated in Article 107 of the Code of Civil Procedure No. 6100 (HMK). Since the value of the immovable property in dispute on the date of the action depends on the expert report to be obtained following the on-site inspection to be carried out by the court, and it was therefore not possible for the plaintiff to determine the value of the action fully and precisely, filing the action as an undetermined claim complies with Article 107 HMK. For this reason, the plaintiff’s petition to increase the claim in the action for undetermined claims is not in the nature of an amendment of claim but is aimed at determining the value of the action, and the case file also establishes that the outstanding court fee was paid. That being so, while the court should have accepted the action on the basis of the value corresponding to the plaintiffs’ inheritance shares out of the value of the immovable property in dispute on the date of the action, rendering the decision as written on the basis of an erroneous assessment is not correct.” (Court of Cassation, 1st Civil Chamber, Docket No. 2019/4755, Decision No. 2020/80, 8.1.2020)

For an action for undetermined claims to be filed, 3 basic criteria have been established.

“In summary, in light of the information explained above, the criteria accepted as to whether a receivable is undetermined, regarding the ability to determine the amount or value of the receivable fully and precisely on the date the action is filed,

1- that this cannot be expected of the plaintiff,

2- that it is impossible,

3- that it is clearly possible to determine the amount and value of the receivable fully and precisely on the basis of the information provided by the opposing party or the results of the investigation,

can be expressed in these terms.” (Court of Cassation, Grand Assembly for the Unification of Case Law (YİBBGK), Docket No. 2016/6, Decision No. 2017/5, 15.12.2017)

The 9th Civil Chamber of the Court of Cassation has stated that the action for undetermined claims has objective and subjective elements:

“It has been stated that there are objective and subjective elements in determining an undetermined claim, that the objective element is that determining the receivable or the value of the action is objectively impossible (the need to determine the fault ratio in an action for receivables based on occupational accidents, etc.), and that the subjective element is that the creditor personally cannot be expected to determine the amount claimed, and that, for instance, where a non-unionized employee with no knowledge of statutory employment rights cannot even name the receivables correctly, that employee cannot be expected to calculate the receivables fully and accurately.”

“The action concerns a request for the collection of employment receivables. The dispute centers on whether the receivables consisting of claims for wage differences, bonus differences and social benefit differences are undetermined claims and, depending on the conclusion reached, whether the plaintiff has a legal interest in filing the action at hand as an action for undetermined claims. In order to calculate the employment receivable differences claimed by the plaintiff, the payrolls to be submitted by the employer, who is obliged to keep the records and documents provided for by law and to make them available to the employee, are needed. This is because determining the claims for wage and bonus differences requires an accounting exercise. Indeed, the difference owed will be found by deducting the wages paid as shown in the payrolls issued by the employer from the amount found by applying the raise rates set by the collective bargaining agreement to the plaintiff’s actual wage. For this, too, the payrolls and records to be submitted by the employer, who has a duty of documentation by reason of keeping records at the workplace, are needed. Therefore, since, considering the plaintiff employee’s education and social situation, the employee cannot be expected to determine the receivables arising from collective bargaining agreement increases relating to a period of nearly 3 years, and since the information and documents held by the employer need to be provided and an investigation is needed in order to determine the receivables in question, it is appropriate for the court to hear the action as an action for undetermined claims and to accept the action.” (Court of Cassation, Assembly of Civil Chambers, Docket No. 2016/22-874, Decision No. 2016/824, 22.6.2016)

“In the present case, the defendant employer is Yeşilyurt Municipality, which is a small district municipality. Since the total number of employees working at the defendant ... Mayoralty, the number of unionized employees, the number of employees paying solidarity dues, the number of employees who resigned, if any, the dates on which these employees became members, the dates on which those who resigned, if any, resigned, the wages of its members, and the raise rates and amounts provided for by the collective bargaining agreement could be known by the plaintiff union, and since it does not additionally need any document from the workplace to be able to determine the amount of the claim for union membership dues, and since, as also stated in HMK /1, this is not a situation in which the union cannot be expected to determine the amount or value of its receivable fully and precisely on the date the action is filed, or in which this is impossible, while the plaintiff union should have filed its claim in dispute, namely the receivable for union membership dues, by determining its amount, filing it in the form of an action for undetermined claims, which is regulated as an exception in the Code of Civil Procedure, is contrary to the clear provision of the law.” (Court of Cassation, Assembly of Civil Chambers, Docket No. 2016/22-407, Decision No. 2020/121, 11.2.2020)

The legislator has not explained in which cases the relief sought is indeterminable. Over time, the Chambers of the Court of Cassation differed as to which claims could be the subject of an action for undetermined claims; thereupon, the Grand Assembly for the Unification of Case Law of the Court of Cassation, stating that each case may be specific in itself and that which claims can be the subject of an undetermined claim must be assessed in the particular circumstances of each case, ruled that there was no need to unify the case law.

“As a result of the deliberations held in the Grand Assembly for the Unification of Case Law, it was unanimously decided on December 15, 2017 that there was no need to unify the case law, on the grounds that employment receivables may come before the courts as disputes of very different types and natures; that even for employment receivables of the same type and nature it is not possible to say every time that the receivable is determined or undetermined; that the courts must establish, according to the particular features of each specific case, whether the receivable is a determined or an undetermined claim; that a receivable cannot be said to be a determined or undetermined claim by reason of its type; and that a unification of case law on this matter would be incompatible with the abstract, general and always applicable normative structure of decisions on the unification of case law.” (YİBBGK, Docket No. 2016/6, Decision No. 2017/5, 15.12.2017)

“It must be accepted that an action for undetermined claims may also be filed where the determination of the amount of the receivable depends on carrying out other procedures, such as the examination of evidence, an expert examination or an on-site inspection, during the investigation stage. However, the fact that an expert examination is ordered in an action is not sufficient for an action for undetermined claims to be filed. If, despite recourse to a court-appointed expert in an action, the plaintiff is able to determine the amount of the receivable when filing the action, an action for undetermined claims cannot be filed. Nor can it be said categorically that a certain type of action, or actions filed by certain persons, are from the outset actions for determined or undetermined claims. For the receivable that is the subject of each action, a determination must be made by applying the criteria for the action for undetermined claims to the specific case.” (YHGK, Docket No. 2016/22-1547, Decision No. 2019/864, 4.7.2019)

Another feature of actions for undetermined claims is that they apply to monetary receivables.

“An action for undetermined claims is available only for monetary receivables. An action for undetermined claims cannot be filed for actions for performance whose subject is not money.” (YHGK, Docket No. 2014/15-439, Decision No. 2016/207, 02.03.2016)

3. What is a partial action? Which statements must be used when a partial action is filed? What are its most important differences from an action for undetermined claims?

A partial action is a claim for a certain part of a receivable or right arising from the same legal relationship.

“ARTICLE 109- (1) Where the subject of the claim is divisible by its nature, only a part of it may also be asserted by way of an action.

(3) Except where the remaining part of the subject of the claim has been expressly waived when the action is filed, filing a partial action does not mean that the remaining part of the subject of the claim has been waived.”

“A partial action is defined as an action filed for only a part of a receivable. For an action to be characterized as a partial action, the entire receivable must have arisen from the same legal relationship and a certain portion of the receivable must, for the time being, be sued for. In other words, an action filed for a portion of a receivable, even though it is possible to file a full action for a larger amount in respect of that receivable, is called a partial action. For a partial action to be filed, the subject of the claim must be divisible, and it is not necessary to state expressly in the statement of claim that the action filed is a partial action. As a rule, it is sufficient that the explanations in the statement of claim show that the plaintiff’s receivable is greater and that, in the relief section, the plaintiff “reserves the rights to the excess” or says “I am suing for this much of the receivable for the time being” (Court of Cassation HGK judgment of 02.04.2003, Docket No. 2003/4-260, Decision No. 271; Pekcanıtez; H./Atalay M./Özekes M.; Medeni Usul Hukuku, 12th ed., p. 320; Kuru/Arslan/Yılmaz, Medeni Usul Hukuku, 22nd ed., p. 286).(...)”(Court of Cassation, Assembly of Civil Chambers, Docket No. 2015/22-1052, Decision No. 2015/1612, 17.6.2015)

A partial action may also be filed where the subject of the claim is not undisputed or clearly determinable between the parties. However, the requirement that a legal interest exist and the prohibition of abuse of rights remain in place.

It is not necessary to state expressly in the petition that a partial action has been filed. It is sufficient for the petition to contain wording such as “I reserve my rights to the excess.” or “I am suing for … of my receivable for the time being.” There is no need to state specifically that it is a partial action.

“Whether a person has filed a partial action can be understood only from the statement of claim, that is, from the plaintiff’s relief sought. The plaintiff need not expressly characterize the action as a partial action; it is sufficient that it is understood that only a portion of the receivable is being sued for. In particular, actions that the plaintiff files stating that they are “reserving the rights to the excess” or that they are “suing for a certain amount of the receivable for the time being” are partial actions in nature.” (Court of Cassation, Assembly of Civil Chambers, Docket No. 2014/15-439, Decision No. 2016/207, 2.3.2016 )

The most important difference between a partial action and an action for undetermined claims concerns the limitation period and the claim for interest. In an action for undetermined claims, the limitation period is interrupted not only for the provisional claim but for the entire receivable. In a partial action, however, the limitation period will be interrupted only for the part claimed. Likewise, whereas in a partial action the start date of interest for the increased part is the date of the petition for amendment of claim, in an action for undetermined claims the start date of interest is the date of the action. It should be noted that, in an action for undetermined claims, where a default occurred before the date of the action, the start date of interest is the date on which the default occurred.

“As explained above, while in an action for undetermined claims the limitation period is interrupted for the entire receivable upon the filing of the action, in a partial action it is interrupted only with respect to the receivable sued for. On the other hand, while in an action for undetermined claims the start of interest for the entire receivable is the date of the action if the defendant has not previously been put in default, in a partial action interest will run from the date of the action for the amount of the receivable sued for, and from the date of the amendment for the part brought into the action by way of amendment of claim.” (Court of Cassation, Assembly of Civil Chambers, Docket No. 2016/7-1107, Decision No. 2020/16, 14.1.2020)

“On the other hand, again, considering the purpose for which the action for undetermined claims was introduced into the Law and the nature of the action, where there is no default that occurred before the date of the action, since in an action for undetermined claims the default in respect of the entire receivable whose amount is determined fully and precisely at the end of the proceedings occurs on the date the action is filed, interest must also be awarded from the date of the action.” (Court of Cassation, 3rd Civil Chamber, Docket No. 2019/5988, Decision No. 2020/1845, 2.3.2020)

4. What happens if an action for undetermined claims is filed where a partial action should have been filed, or if the statement of claim leaves doubt as to whether the claim is an undetermined claim?

In practice, the action for undetermined claims and the partial action are frequently confused. There are cases in which one of these two actions is filed in place of the other. In addition, there are also cases in which, although an undetermined claim is asserted, the content of the petition has the character of a partial action. The Assembly of Civil Chambers of the Court of Cassation has differing case law on this matter. While in some of its decisions the Assembly of Civil Chambers of the Court of Cassation has stated that, where an action filed as an undetermined claim does not meet the conditions of an action for undetermined claims, the court will continue the action as a partial action, in others it has ruled that, where it is not possible to convert an action filed as an undetermined claim into a partial action, the action must be dismissed on procedural grounds for lack of legal interest.

Decision holding that an action for undetermined claims filed without its conditions being met cannot be continued as a partial action:

“The Code of Civil Procedure gives the plaintiff, where the amount of the receivable is undetermined, the option of filing either an action for undetermined claims or a partial action, as the plaintiff wishes. The action for undetermined claims and the partial action are two types of action that are entirely different from each other in terms of their subject, purpose and consequences. The fact that both actions are actions for performance in terms of the legal protection sought from the court and that they share certain common features does not change this conclusion. Just as a plaintiff who files an action for undetermined claims cannot benefit from the consequences of a partial action, a plaintiff who files a partial action cannot benefit from the consequences of an action for undetermined claims. Nor can the judge characterize an action filed as a partial action as an action for undetermined claims, or continue an action filed as an action for undetermined claims as a partial action.” (YHGK, Docket No. 2014/15-439, Decision No. 2016/207, 2.3.2016)

Decision holding that an action for undetermined claims filed without its conditions being met can be continued as a partial action:

“Article 107/1 of HMK No. 6100, which was in force on the date of the action and of the decision, provides: "where the creditor cannot be expected to determine the amount or value of the receivable fully and precisely on the date the action is filed, or where this is impossible, the creditor may file an action for undetermined claims by stating the legal relationship and a minimum amount or value".

In the present case, considering the events and requests set out by the plaintiff in the statement of claim, even though there is a dispute between the parties, the plaintiff is in a position to determine the amount of its receivable fully and precisely as of the date of the action. In this situation, even though counsel for the plaintiff stated in the statement of claim that they filed the action as an action for undetermined claims, the court’s finding that the action is not an action for undetermined claims but a partial action is in accordance with the law. For this reason, the action filed is a partial action for 2,000.00 TL.” (Court of Cassation, 15th Civil Chamber, Docket No. 2017/1471, Decision No. 2017/3192, 28.9.2017)

The judge decides from the statement of claim whether the relief sought is an undetermined claim or a partial action:

“The action concerns a claim for a receivable arising from a contract for work. It is understood that, although counsel for the plaintiff stated in the statement of claim that an action for undetermined claims was being filed, in the relief section counsel requested, after stating that all rights to the excess were reserved, a decision for the collection of part of the receivable. When the statement of claim is assessed as a whole, it is understood that, in this form, a partial action was filed by the plaintiff. Although it is not possible to continue an action filed as an action for undetermined claims as a partial action, in the present case, since it is understood that the plaintiff filed a partial action and, as the amount in dispute is contested between the parties, that the plaintiff has a legal interest in filing a partial action, while the local court should have examined the merits and decided according to the outcome, rendering the decision as written is contrary to procedure and law.” (YHGK, Docket No. 2014/15-439, Decision No. 2016/207, 2.3.2016)

Where the relief sought cannot be understood, the judge invites the plaintiff to make a statement:

“On the other hand, where a minimum amount has been indicated in the statement of claim and, although it is understood that this is a certain portion of the receivable, whether the action filed is an action for undetermined claims or a partial action is not clear, the judge, being bound by the claim (HMK No. 6100, Art. 26), must first grant the plaintiff a peremptory time limit of one week under the second paragraph of Article 119 HMK and determine, in line with the plaintiff’s statement, whether the action filed is an action for undetermined claims or a partial action. This, in essence, falls within the judge’s duty to clarify the case. If, within the one-week peremptory time limit granted, the plaintiff has stated that the action is an action for undetermined claims and the conditions required for filing an action for undetermined claims are met, the action must be heard and concluded as an action for undetermined claims. If, although the conditions required for filing an action for undetermined claims are met, the plaintiff has stated that the action filed is a partial action, the court must in that case accept the action as a partial action and continue the proceedings. As a third possibility, if the plaintiff has notified the court that the action is an action for undetermined claims but the conditions of an action for undetermined claims are not met, yet it is possible to file a partial action, then the court must hear and decide the action filed by directly characterizing it as a partial action through an interim decision.(...)

During the deliberations in the Assembly of Civil Chambers, although the view was put forward that the procedural requirement of legal interest needed for filing an action for undetermined claims must exist at the time the action is filed; that this procedural requirement cannot be fulfilled subsequently; that it is accepted in settled case law that, where a declaratory action is filed when an action for performance should have been filed, the action must be dismissed for lack of legal interest; that the same applies here; that a legal interest that did not exist when the action was filed cannot be remedied by the judge granting a time limit and changing the type of action; that, therefore, the action at hand, in which determined receivables were made the subject of an action for undetermined claims, must be dismissed on procedural grounds for lack of legal interest; that the Special Chamber’s reversal decision was correct; and that the decision of insistence was not correct, this view was not adopted by the majority of the Assembly.” (YHGK, Docket No. 2016/22-1166, Decision No. 2019/576,  16.5.2019)

5. What happens if, in an action filed as an undetermined claim, the amount of the receivable is held to be determinable?

Where the receivable is definite and determinable, an action for undetermined claims cannot be filed. In addition, where the conditions of a partial action are not met either, a full action for performance comes into play. In this case, the court may grant a peremptory time limit and request that the amount of the receivable be clarified and the court fee be paid.

“Turning, in light of the above explanations, to the question of what should be done where a receivable is made the subject of an action for undetermined claims even though it is determined: despite the absence of its conditions, in other words, despite it being possible to determine the amount of the receivable to be claimed fully and precisely at the time the action is filed, an action filed in the form of an action for undetermined claims should not be dismissed immediately on procedural grounds for lack of legal interest, that is, for absence of a procedural requirement. This is because an action for undetermined claims filed by stating an amount is also an action for performance, whether the receivable is determined or undetermined, and in actions for performance a legal interest is deemed to exist. Moreover, if the plaintiff cannot obtain the receivable by any means other than filing an action and needs a court decision, it is indisputable that the plaintiff has a legal interest in filing the action. In other words, the fact that the receivable is determined or undetermined does not eliminate the legal interest that existed at the outset. In this case, the minimum amount claimed in the statement of claim stands as the amount of the receivable that can be claimed according to the features of the specific case, and if the conditions of a partial action are not met, it must be accepted that the plaintiff has filed a full action for performance. However, if the minimum amount claimed in the statement of claim does not reach the total amount of the receivable that can be claimed according to the features of the specific case, and the conditions of a partial action are not met either, the court must then grant the plaintiff a one-week peremptory time limit under the second paragraph of Article 119 HMK to clarify the amount of the receivable and to pay the outstanding court fee according to the value of the action that the plaintiff will state; if the stated deficiency is remedied within the peremptory time limit granted, the action must be continued as a full action for performance, and otherwise the action must be dismissed on procedural grounds.” (YHGK, Docket No. 2016/22-1166, Decision No. 2019/576,  16.5.2019)

6. Can progress payments in disputes arising from contracts for work be claimed through an Action for Undetermined Claims? Where the conditions of an action for undetermined claims are not met, can the action be continued as a partial action?

In actions for progress payments arising from contracts for work, an action for undetermined claims may come to mind where the amount cannot be determined. On this point, the Court of Cassation has examined whether the parties could genuinely determine the receivable. The issue has centered on whether a legal interest exists. Whether the receivable is genuinely determinable in the specific case is examined. There are different decisions of the Court of Cassation concerning different cases. A few decisions that may serve as examples are shared below.

“(...) consists of having the price of the works falling within the 10% increase in work calculated at the contract prices, the price of the works for which there is no price in the contract calculated using the determination method in Article 22 of the specifications, and the price of the works exceeding 10% calculated at the free market prices on the dates they were carried out, in accordance with the provisions of Articles 22 and 23 of the General Specifications for Construction Works, and awarding them. The court’s acceptance of the action as written, on the basis of an incomplete examination and an insufficient report of the panel of court-appointed experts, was not correct, and the decision had to be reversed (…) Moreover, even on the basis of the court’s acceptance of the action, while the action filed should have been characterized as a partial action, since it did not meet the conditions of an action for undetermined claims but the claim was made by stating an amount, and interest should have been applied to the amounts claimed in the action from the date of the action, and to the amounts increased by paying the court fee from the date the fee was paid, running interest on the entire amount of the receivable accepted from the date of the action is contrary to procedure and law.” (Court of Cassation, 15th Civil Chamber, Docket No. 2016/6501, Decision No. 2017/1481, 3.4.2017)

“In the present case, it is seen that the panel that issued the expert report on which the court based its judgment included only a single architect, that this report did not assess separately, in a manner open to review, the items of work within and outside the scope of the contract, that the defendant raised technical objections to this report, and that, although an additional report was obtained, not all the objections were answered in a manner open to review. Therefore, what the court must do is to have a new panel of court-appointed experts with expertise in the subject of the work, also assessing the technical objections, first establish whether the items of work required to be carried out under the contract were carried out, have their prices calculated at the contract prices, and, if items of work were carried out in excess, have their prices calculated at the local market rates of the year in which they were carried out, provided that they were to the benefit of the client in accordance with Art. 410 et seq. of the Code of Obligations No. 818 (BK), which was in force on the date of the contract, and decide according to the result. On the other hand, although the statement of claim stated that the action is an action for undetermined claims, as also stated in this Chamber’s judgment of 10.07.2013, Docket No. 2012/6728, Decision No. 2013/4521, and in the judgment of the Assembly of Civil Chambers of the Court of Cassation of 02.03.2016, Docket No. 2014/15-430, Decision No. 2016/207, it is not possible to hear and conduct the action as an action for undetermined claims. However, even though the plaintiff’s receivable can be determined fully and precisely, it is possible for the plaintiff to file a partial action by claiming a certain part of it for collection. In this form, the action filed by the plaintiff must be characterized as a partial action, and the petition dated February 22, 2012 stating that the court fee was paid must also be characterized as a petition for amendment of claim. For this reason, since it has not been proven in this case that the defendant was put in default by the plaintiff before the action, interest must be applied to the receivable to be awarded according to the dates of the action and of the amendment of claim. In accordance with the reasons explained, the decision based on an incomplete examination had to be reversed.” (Court of Cassation, 15th Civil Chamber, Docket No. 2016/3148, Decision No. 2017/3098, 21.9.2017)

“The action concerns a request for the collection of the price of work arising from a contract for work. In this case, even though there is a dispute between the parties, the plaintiff is in a position to determine the amount of its receivable fully and precisely as of the date of the action. In this situation, although counsel for the plaintiff stated in the statement of claim that they filed the action as an action for undetermined claims and the court also accepted that an action for undetermined claims had been filed, since the conditions for filing an action for undetermined claims are not met, the action is not an action for undetermined claims but is in the nature of a partial action. Although the court dismissed the action for the receivable of 50,000.00 TL on procedural grounds, this action must be heard and assessed as a partial action. Within the scope of the duty to clarify, the plaintiff must be asked to specify the amounts of its 50,000.00 TL claim, which is in the nature of a partial action, by item of receivable, and the dispute must be concluded accordingly.” (Court of Cassation, 15th Civil Chamber, Docket No. 2018/4659, Decision No. 2018/4830, 4.12.2018)

7. Does stating the amount of the receivable clearly in a previously sent formal notice prevent an action for undetermined claims from being filed later?

Where the amount and value of the receivable are clearly stated in formal notices, it may be said that the amount of the receivable is determinable. This is because there is a value that has been written down and claimed. However, the Court of Cassation has rendered different decisions on this matter depending on the circumstances of the specific case.

“The court, on the basis of the claim, the defense and the entire case file, decided to dismiss the action for absence of a procedural requirement under Articles 114/1-h and 115 HMK, on the grounds that, although the receivable had been set at 1,778,000,000.00 TL in the formal notice sent by the plaintiffs to the defendants before the action, the plaintiffs had no legal interest in filing the action as a partial/undetermined claim action with a value of 50,000.00 TL … Turning to the present case in light of these explanations, the plaintiffs filed an action for undetermined claims alleging that the amount which, under the will, should have been given to the plaintiffs’ decedent out of the assets that, pursuant to Atatürk’s will, are made to earn returns at the defendant bank and whose ownership was left to the other defendant, had been underpaid for many years; just as the plaintiffs cannot be expected to determine fully and precisely what the receivable is that should have been paid to the plaintiffs’ decedent over the elapsed period but was underpaid, the fact that the amount was stated in the formal notices sent to the defendants before the action does not mean that the action is an action for a determined claim … Accordingly, while the court should have accepted that the action is in the nature of an action for undetermined claims and examined the merits, rendering a judgment as written on the basis of an incomplete examination and an erroneous interpretation was not correct, and the decision therefore had to be reversed.” (Court of Cassation, 11th Civil Chamber, Docket No. 2014/9966, Decision No. 2015/8462, 18.06.2015)

“The court, on the basis of the claim, the defense and the entire case file, found that, under Articles 109/2 and 107 of HMK No. 6100, which were in force on the date the action was filed, although the plaintiff had clearly determined, by means of the formal notice it had issued, that the amount of the dispute forming the subject of the claim was 45,000.00 TL, the plaintiff had filed a partial action for only 10,000.00 TL of this amount, reserving its rights to the excess; and, on the grounds that, since the subject of the dispute had been clearly determined by the plaintiff, the plaintiff had no legal interest in filing a partial action, and that, again, in view of the subject of the action and the plaintiff’s express claim, the conditions of an action for undetermined claims were not met either, it decided to dismiss the action for lack of legal interest under Art. 114/h HMK … In view of the information and documents in the case file, and since there is no aspect contrary to procedure and law in the discussion and assessment of the evidence relied upon in the reasoning of the court’s decision, all the objections raised by counsel for the plaintiff in the appeal on points of law are unfounded.” (Court of Cassation, 11th Civil Chamber, Docket No. 2012/19128, Decision No. 2013/20655)

8. Does having evidence secured before filing an action prevent an action for undetermined claims from being filed later?

In many cases, the amount of the receivable is established by having evidence secured before the claims are asserted. Since the securing of evidence does not have the nature of a court judgment, a creditor who wishes to obtain its receivable can assert its right by filing an action based on the evidence-securing report. The fact that evidence was secured beforehand does not prevent the filing of an action for undetermined claims.

“As regards the present case, the existence and amount of the damage relating to the plaintiff company’s claims that it made the subject of an action for an undetermined compensation receivable, namely the price of the seeds, the expenses including the investment and R&D work for the seeds, and the profit it would have earned from the sale of the seeds and of which it was deprived, can be determined only after the evidence has been collected and assessed during the proceedings. Therefore, it must be accepted that the plaintiff cannot be expected to determine fully and precisely the amount and value of the damage it alleges as of the date of the action.

Although the evidence-securing report dated September 17, 2015, issued at the plaintiff company’s request in miscellaneous file No. 2014/60 (D.İş) of the Antalya 3rd Civil Court of Peace, states that the damage suffered by the plaintiff as a result of the incident in dispute amounts to 3,300,000.00 TL in respect of expenditure on R&D work, 2,475,000.00 TL in respect of expenditure on tomato, pepper and cucumber varieties and lines, and 5,875,000 TL in respect of lost profit, it is understood that, apart from the said evidence-securing report, there are many expert reports in the case file and that these reports contradict one another and the evidence-securing report. Moreover, interpreting the fact that the plaintiff resorted to having evidence secured before filing the action as having made the amount of the damage or receivable in dispute determined is contrary to the purpose of the Law.

Furthermore, considering also that Art. 46 et seq. HMK, which regulate the legal liability of judges, contain no provision stating categorically that such actions cannot be filed as actions for undetermined claims, it cannot be said that reaching a result not intended by the legislator is correct.

For the reasons stated, since it is understood that the plaintiff company’s claims in dispute are of a nature that can be the subject of an action for undetermined claims and that the plaintiff cannot be expected to determine the amount and value of the damage fully and precisely as of the date of the action, it has been concluded that, in accordance with Article 107 HMK, the plaintiff may file an action by stating the legal relationship between the parties and a minimum amount or value.

In addition, in the present case, the plaintiff has a present interest worthy of protection in applying to the court to obtain legal protection with regard to establishing the existence and amount of the damage it alleges. In other words, since the plaintiff needs a court decision to obtain its right, it is not possible to accept that it has no legal interest in filing the action at hand.” (Court of Cassation, Assembly of Civil Chambers, Docket No. 2019/4, Decision No. 2019/202, 26.2.2019)

In all these processes, it will be in the parties’ interest to obtain legal support from a lawyer in order to avoid a loss of rights.

Att. Ömer Çebi

Trainee Att. Batuhan Özata

This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.

Related service: Debt Collection in Türkiye →