Amendment of Pleadings in Civil Procedure: An Overview in the Context of Elective Rights

Under Art. 141 of the Code of Civil Procedure No. 6100 (“HMK”), after the reply and rejoinder petitions, the parties may not expand or change their claims and defenses. Through this principle, known as concentration (teksif), it is determined which issues and claims the investigation stage will focus on, and in the later stages of the proceedings the case is heard on the basis of the claims and defenses so determined.

“If new facts could be freely raised at every stage of the proceedings, this would prevent the proceedings from being conducted soundly and within a reasonable time. Since every new fact requires examination, raising them without limit and at any time leads to an expansion of the investigation.” (Arslan, R./Yılmaz, E./Taşpınar Ayvaz S.: Medenî Usul Hukuku, Ankara 2017, p. 157; Assembly of Civil Chambers of the Court of Cassation (YHGK), Docket No. 2018/22-422, Decision No. 2018/1024, 9.5.2018).

However, when filing the action or responding to it, the parties may have presented their allegations incompletely, or they may need to change the relief they seek. In such situations, under HMK Art. 141/2, they may resort to the express consent of the opposing party or to amendment of pleadings (ıslah). The important difference between amendment and express consent is that amendment does not require the approval of the other party or the court. “Amendment is a unilateral declaration of intent, and the acceptance of the opposing party and of the court is not required for the amendment to be valid.” (YHGK, Docket No. 2011/1-364, Decision No. 2011/43, 29.06.2011). The drawback of amendment, however, is that under HMK Art. 176/2 it can be used only once.

1. What are the conditions for amendment?

A 2012 decision of the 11th Civil Chamber of the Court of Cassation states that amendment may be used for reasons such as correcting errors concerning facts learned later, completing omissions and, in connection with this, submitting new evidence. In that decision, amendment is defined as follows: “As is known, amendment is a means that allows a procedural act of one of the parties to be corrected, partially or completely, on a one-time basis, and that does not require the consent of the opposing party. In other words, amendment is an institution that allows a party acting in good faith to correct its errors concerning facts it learned after filing the action or after an action was filed against it, to complete omissions and, within this framework, to submit new evidence.” (Court of Cassation, 11th Civil Chamber, Docket No. 2012/14013, Decision No. 2012/17049, 31.10.2012)

Although amendment is an exceptional right granted to the parties once in an action, not every procedural act performed during the proceedings can be changed or corrected by amendment. The legislator has made the exercise of the right of amendment subject to certain conditions, but has set out these conditions in a scattered manner in the provisions of the Code on amendment. The conditions for amendment can be listed as follows:

- The existence of a procedural act capable of amendment

- Amendment can be made by the parties to the action

- The parties may resort to amendment only once

- Amendment can be made until the end of the investigation stage

- Amendment can be made in writing by a petition or orally

- The party resorting to amendment must make good the litigation costs arising from the amendment and the losses of the opposing party

2. What are the procedural acts of the parties? Which acts fall within the scope of amendment, and which do not?

ARTICLE 176- (1) Each of the parties may amend the procedural acts it has performed, partially or completely.

Under the article cited above, the parties may resort to amendment only for the procedural acts they have performed themselves. Procedural acts of the parties are acts that the parties perform themselves, before the action is filed or during the proceedings, in order to advance and continue the process. Procedural acts of the court performed by the court, and procedural agreements concluded between the parties, cannot be the subject of amendment. (Procedural agreements are agreements whose effects arise in terms of procedural law. Examples include jurisdiction agreements and evidence agreements. Procedural acts of the court, on the other hand, are acts performed by the judge. Examples include the examination of evidence, the appointment of an expert, summoning the parties to the hearing, interim decisions, etc.)

However, not every procedural act of a party can be the subject of amendment either. First of all, it should be noted that preliminary objections not raised in time cannot be raised by amendment. “Preliminary objections cannot be raised after the time limit for the response on the merits has expired, even if the opposing party consents.” (Court of Cassation, 8th Civil Chamber, Docket No. 2016/11625, Decision No. 2020/32, 13.1.2020). Apart from this, a petition for amendment cannot be used to file a counterclaim, to submit a second list of witnesses or to request an increase in compensation for non-pecuniary damage.

“Both legal doctrine and settled case law accept that an action for compensation for non-pecuniary damage cannot be filed as a partial action and that the claim cannot be increased by way of amendment either. The reason given for this is that compensation for non-pecuniary damage is a single whole. Once the compensation for the pain and sorrow suffered has been determined through an action and notified to the opposing party, it cannot be increased or claimed by filing a new action. This is because the judge is given a very wide discretion in assessing compensation for non-pecuniary damage. The judge’s discretion cannot be divided (See Prof. Dr. Baki Kuru – Hukuk Muhakemeleri Usulü, Sixth Edition, Vol. II – 2001, p. 1528 et seq.; Prof. Dr. Ejder Yılmaz, Islah Yoluyla Dava Konusunun Arttırılması (an assessment of the Constitutional Court’s decision of 20.07.1999 No. 1/33, article dated 11.05.2001), p. 10 et seq.; the decisions of the Assembly of Civil Chambers of the Court of Cassation of 02.07.1980, Docket No. 3/1477, Decision No. 2113; of the same Assembly of 27.03.1981, Docket No. 9/1481, Decision No. 251; and of the same Assembly of 25.09.1996, No. 1996/21-397-637, and of 13.10.1999, No. 1999/21-648, Decision No. 818.)”(Assembly of Civil Chambers of the Court of Cassation, Docket No. 2003/4-716, Decision No. 2003/724, 3.12.2003)

3. Can amendment be used in joinder of claims and consolidation of actions?

Joinder of claims is a type of action in which more than one independent principal claim against the same defendant is brought in the same petition. In a 2012 decision of the 5th Civil Chamber of the Court of Cassation: “In an action, under Art. 83 of the HUMK (HMK Art. 176), the parties may resort to amendment only once. Since, as in the present case, the action was filed with two claims, if a request for amendment is made for the other claim after a request for amendment has been made for one claim, this does not constitute a second request for amendment. In other words, where claims that could each be the subject of a separate action are brought in a single action, the parties have one right of amendment for each claim. Accordingly, since the amendment of the claim for prevention of interference into a claim for collection of the value of the land, after the amendment made in the claim for compensation for unlawful occupation (ecrimisil), cannot be regarded as a second amendment, the merits of the claim for the value of the land should have been examined and a judgment rendered according to the result; since the action was instead dismissed on the written grounds, it was decided that the judgment be reversed pursuant to Art. 428 of the HUMK.” (Court of Cassation, 5th Civil Chamber, Docket No. 2011/14182, Decision No. 2012/923, 25.01.2012). However, it has also been argued in legal doctrine that, even where different claims are involved, amendment can be used only once because there is a single action.

Actions filed in civil courts of the same level and capacity within the same judicial district are consolidated if there is a connection between them. Here there are, in essence, two different actions and two different claims. In a 2008 decision, the 13th Civil Chamber of the Court of Cassation ruled as follows: “In the case of consolidation of actions, since only the proceedings are consolidated, and since the main action and the consolidated action are independent, separate actions, the actions may be amended separately, provided that this is done once for each action. In this case, there can be no question of "more than one amendment", which is not valid under the last paragraph of Art. 83 of the HUMK. Therefore, since in the present action too there is no second amendment, but separate amendments of the main and consolidated actions, it was decided that the ground for reversal stated in the third subparagraph (3no1u) of this Chamber’s reversal judgment of 28.02.2008, Docket No. 2007/13511, Decision No. 2008/2708, concerning the point that "the plaintiff could not request amendment a second time", was based on an oversight, and that the plaintiff’s request for rectification of the decision on this point be accepted.” (Court of Cassation, 13th Civil Chamber, Docket No. 2008/8473, Decision No. 2008/10850, 22.09.2008).

4. When can amendment be used?

HMK Art. 177 states that amendment may be made until the end of the investigation stage. The right of amendment concerns the changing or expanding of claims and defenses. Accordingly, amendment can be used in the proceedings after the prohibition on changing and expanding claims and defenses has taken effect. “As stated in the legislative rationale of the article cited, it has been accepted that, at the stage when the parties submit their petitions to each other, they may change their claims and defenses within the general framework of the dispute without being subject to any restriction ....undoubtedly, this possibility exists only for the reply and the rejoinder petition. Petitions submitted after the two petitions of each side, under whatever name, must be regarded as falling within the restriction and the prohibition. At the preliminary review stage, the expansion or change of claims or defenses has been accepted only where the opposing party gives express consent (or where one of the parties fails to attend the preliminary review hearing without an excuse).” (YHGK, Docket No. 2014/2-695, Decision No. 2016/522, 20.4.2016). In light of this decision of the Court of Cassation, amendment may come into play after the exchange of petitions. Before the entry into force of Law No. 7251 Amending the Code of Civil Procedure and Certain Laws (the “Law”), published in the Official Gazette of July 28, 2020, as can also be seen in the above decision of the Assembly of Civil Chambers of the Court of Cassation, where one of the parties failed to attend the preliminary review hearing without an excuse, the party attending could also change its claims and defenses without the need for amendment. However, this possibility has been abolished by Law No. 7251. Accordingly, after the reply and rejoinder petitions, the parties will not be able to change their defenses other than with the consent of the opposing party or by way of amendment.

5. Is amendment possible after the judgment has been reversed?

As stated above, under HMK Art. 177, amendment can be made only until the end of the investigation stage. The end of the investigation is regulated in HMK Art. 184.

ARTICLE 184- (1) After examining the claims and defenses of the parties and the evidence collected, the judge gives the floor to the parties present at the hearing so that they can make statements on the investigation as a whole.

(2) If, after the parties’ statements on the investigation as a whole, the court finds that no matter requiring investigation remains, it announces to the parties that the investigation has ended.

In its Decision on the Unification of Case Law of May 6, 2016, Docket No. 2015/1, Decision No. 2016/1, the Court of Cassation ruled that amendment cannot be made after reversal. It repeated the same ruling in its Decision on the Unification of Case Law of May 24, 2019, Docket No. 2017/8, Decision No. 2019/3. Accordingly, in the decisions of the Court of Cassation, this point was referred to as the principle prohibiting amendment after reversal under Art. 177 of the HMK. This was changed by Law No. 7251 Amending the Code of Civil Procedure and Certain Laws, published in the Official Gazette of July 28, 2020, which expressly provides that amendment can also be made after reversal.

ARTICLE 177- (2) (Added: 22/7/2020-7251/18 Art.) When the file is sent to the court of first instance after a reversal decision of the Court of Cassation or a decision of the regional court of appeal setting aside the judgment, amendment may also be made until the end of the investigation if the court of first instance performs an act relating to the investigation. However, the legal situation arising from compliance with the reversal decision cannot be eliminated.

Under this paragraph, amendment is possible after reversal if the court of first instance performs an act relating to the investigation. The question that arises at this point is whether amendment can be used where the regional court of appeal itself continues the investigation. The article is not clear on this point.

6. What are the types of amendment? What are the consequences of amendment?

Amendment is divided into two types: complete (full, entire) amendment and partial amendment. “An amendment that results in all procedural acts, including the filing of the statement of claim, being deemed not to have been performed is called “complete amendment of the action”; by contrast, an amendment that results in the procedural acts being deemed not to have been performed from the point to which the party extends it is called “partial amendment”” (Grand Assembly for the Unification of Case Law (YİBK), Docket No. 2017/8, Decision No. 2019/3, 24.05.2019). While partial amendment can be made by either the defendant or the plaintiff, complete amendment can be made only by the defendant. However, while the defendant can at most have all procedural acts up to and including the filing of the statement of defense deemed not to have been performed, an amendment made by the plaintiff may also cover the statement of claim.

Under HMK Art. 180, when complete amendment is used, a new statement of claim must be filed within one week of the notification. Accordingly, it can be said that with complete amendment the action changes entirely. Partial amendment, on the other hand, is the expansion of the claim or of the relief sought. “Because the relief sought is not changed; only the amount is increased, that is, expanded. If there is expansion rather than change, the type of amendment that becomes operative is partial amendment.” (Grand Assembly for the Unification of Case Law of the Court of Cassation, Docket No. 2017/8, Decision No. 2019/3, 24.5.2019). At the same time, according to the judgments of the Court of Cassation, new claims cannot be added to the relief sought within the scope of partial amendment. “Although a claim may be expanded by way of amendment, a new claim cannot be added to the action. The request of the plaintiff-counter-defendant woman for new items of jewelry other than those listed in the statement of claim amounts to adding a new claim to the action. It is understood from the evidence collected that 8 bracelets of the plaintiff-counter-defendant woman remained with the defendant-counter-plaintiff man. While the action should have been accepted with regard to the 8 bracelets proven, rendering a decision as written is contrary to procedure and law and has required reversal.” (Court of Cassation, 2nd Civil Chamber, Docket No. 2015/20046, Decision No. 2016/7837, 18.4.2016). However, within the scope of complete amendment, it is also possible to add new claims to the relief sought. “Looking at the present case in light of these explanations, there is no legal obstacle to the plaintiffs claiming compensation for non-pecuniary damage by way of amendment in the action for compensation for pecuniary damage that they duly filed. The court’s assessment that a right not claimed at the outset cannot be claimed by amendment during the proceedings is not correct. While the court should have examined the merits of the claim for compensation for non-pecuniary damage and decided according to the result, its dismissal of that claim as written was not considered correct, and the decision had to be reversed.” (Court of Cassation, 4th Civil Chamber, Docket No. 2012/5120, Decision No. 2013/4672, 14.3.2013)

In the case of complete amendment, since all procedural acts performed from the beginning of the action become invalid, the interim injunctions that have been granted will also be lifted. A defendant who wishes the interim injunctions to continue must state this in the new statement of claim to be filed. In addition, if complete amendment results in a difference in terms of subject-matter jurisdiction, the judge must render a decision of lack of jurisdiction. This is because, under HMK Art. 1, subject-matter jurisdiction is a matter of public order. In complete amendment, there must be a connection between the two actions. Where the cancellation of the defendant’s title deed is sought, the action should not suddenly be converted into an action for a receivable on the ground that there is a receivable on a different matter. “In the first action, cancellation of the title deed was sought on account of the wrongful conduct of the defendant heirs; by converting the action through amendment into an action for reduction (tenkis), the conduct of the deceased was made the subject of the action, and the material facts of the two actions and the legal grounds on which they are based are entirely separate from each other. Therefore, there can be no question of a valid amendment. To think otherwise would make possible situations such as converting a divorce action into an action for a receivable based on a loan, or an action for damages arising from a contract for work into an action for maintenance, which is not the purpose pursued by the procedural code through the institution of amendment. Therefore, the court was right not to accept the request for amendment. However, since the request for amendment was not found justified, judgment should have been rendered according to the result of collecting the parties’ evidence under the original action. Dismissing the action without taking any step in this direction is contrary to procedure and law.” (Court of Cassation, 2nd Civil Chamber, Docket No. 1977/1209, Decision No. 1978/1624, 02.03.1978)

Another difference between complete amendment and partial amendment concerns the limitation period. In complete amendment, the limitation period is interrupted at the time the first statement of claim was filed, whereas in partial amendment, the limitation period for the increased relief sought is interrupted from the moment the request for amendment is made. “Complete amendment of the action requires that all procedural acts from the statement of claim onward be deemed not to have been performed. Both in legal doctrine and in practice, in complete amendment of the action no new action is deemed to have been filed; since the completely amended action is a continuation of the action first filed, as a natural consequence, the limitation period will be assessed according to the situation on the date on which the first action was filed. Therefore, in complete amendment of the action, the amended action is deemed to have been filed on the date of the first action. (Kuru, p. 3998 et seq.; Özekes, p. 1537).” (YHGK, Docket No. 2017/11-11, Decision No. 2019/1071, 17.10.2019). “If there is expansion rather than change, the type of amendment that becomes operative is partial amendment. If, in a partial action, the limitation period is interrupted at the moment the supplementary action is filed, then where partial amendment is requested it is likewise interrupted from the moment of that request. This is because partial amendment does not result in all procedural acts, including the filing of the statement of claim, being deemed not to have been performed. Consequently, where partial amendment is requested, it cannot be concluded that the limitation period should also be interrupted, from the moment the partial action was filed, with respect to the part of the receivable kept outside the action (Tanrıver, 732).” (YİBK, Docket No. 2017/8, Decision No. 2019/3, 24.05.2019).

Whether partial or complete, amendment can be used only once. Since the right of amendment cannot be used again once it has been used to increase the amount of the receivable, if it becomes necessary to resort to amendment once more during the proceedings, there will be a risk of the plaintiff losing rights. (Pekcanıtez Hakan, Belirsiz Alacak Davası, Makaleler Vol. 2, Istanbul 2016, p. 442)

7. Is amendment possible in the case of elective rights?

The concept of alternative obligation is regulated in Art. 87 of the Turkish Code of Obligations (TBK). An alternative obligation is an obligation where, in situations involving more than one performance, the performance of one of them is sufficient. An example of elective rights is the buyer’s elective rights under liability for defects, regulated in TBK Arts. 227 to 230. Elective rights are formative rights and are exhausted once exercised by one party. This has caused a number of problems with regard to amendment. Although the decisions of the Court of Cassation on this point vary, they are shaped by the circumstances of the specific case.

In a 2008 decision on this matter, the 13th Civil Chamber of the Court of Cassation ruled as follows: “Articles 4 and 4/A of Law No. 4077 on Consumer Protection, as amended by Law No. 4822, list the consumer’s elective rights concerning defective goods and defective services. These rights are formative rights that are exhausted upon exercise, and it is not possible for the plaintiff to change by amendment the elective right it exercised as repair. Therefore, the amendment made by the plaintiff produces no legal effect.” (Court of Cassation, 13th Civil Chamber, Docket No. 2008/1735, Decision No. 2008/7867, 5.6.2008).

“Under Art. 99 of the TBK No. 6098, which must be applied to the present case (BK Art. 83), a debt whose subject is money is paid in the national currency. However, if it has been agreed that payment is to be made in a currency other than the national currency, the creditor has an elective right to request payment in that currency or in the national currency. However, once this right, which is formative in nature, has been exercised, the person exercising it cannot go back on that decision. In the present case, although an early closure fee was charged to the plaintiff in foreign currency by the defendant Bank, while the decision should have been rendered according to the result, taking into account that the plaintiff creditor, who claimed in TL in the action, cannot go back on this choice during the proceedings and, by filing a petition for amendment, request collection of the debt in foreign currency, the court, based on an erroneous assessment, rendered judgment in foreign currency as written, which was not considered correct and required reversal.” (Court of Cassation, 11th Civil Chamber, Docket No. 2019/296, Decision No. 2019/7125, 12.11.2019)

Contrary to the decisions above, the 13th Civil Chamber of the Court of Cassation, in a 2019 judgment, decided without examining this point. “Upon examination of the file, it is understood that, by the petition for amendment dated June 6, 2014 submitted to the file by the plaintiff’s attorney, the plaintiff waived the request for replacement with a defect-free equivalent and changed the elective right to a request to keep the item sold and obtain a reduction of the sale price in proportion to the defect. In the statement of claim, the plaintiff stated the claim as replacement of the car in dispute with a defect-free equivalent, and later, by the petition for amendment submitted, clarified and changed the claim to a price reduction. Art. 4 of Law No. 4077 regulates the consumer’s elective rights where the goods are defective. Under these elective rights, the consumer has the right to rescind the contract, including a refund of the price, to have the goods replaced with a defect-free equivalent, or to request a price reduction in proportion to the defect or free repair. The seller is obliged to fulfill the request chosen by the consumer. As explained, the consumer may exercise any of the elective rights.” (Court of Cassation, 13th Civil Chamber, Docket No. 2016/15694, Decision No. 2019/763, 29.1.2019)

In a 2010 decision, the Assembly of Civil Chambers of the Court of Cassation, for its part, stated that where a latent defect emerges during the proceedings, the plaintiff may change its claim after having exercised an elective right, without the need for amendment. “However, during the proceedings it was established that the vehicle in dispute had a latent defect, and for this reason the plaintiff changed its right of choice and requested that the vehicle be replaced with a new one. Since the fact that the vehicle has a latent defect is also accepted by the Court and the Special Chamber, there is no doubt or hesitation as to the existence of the statutory conditions explained above. The fact that the plaintiff exercised the right of repair in the statement of claim cannot be put forward as an obstacle to the plaintiff exercising this choice as free replacement of the vehicle after it emerged during the proceedings that the vehicle had a latent defect. Since the plaintiff, keeping the contract in force, requested that the goods be replaced with new ones, the defendants are obliged to resolve the problem in accordance with the consumer’s choice. In view of all these facts and statutory provisions, with regard to the vehicle for which the conditions for requesting replacement with a new one are met, it is beyond doubt that the plaintiff, who in the statement of claim exercised the right of choice in favor of free repair, may change it to replacement of the vehicle with an equivalent without the need for amendment.” (YHGK, Docket No. 2010/13-389, Decision No. 2010/429, 29.9.2010).

In a 2019 decision, the 23rd Civil Chamber of the Court of Cassation held that the rejection of an elective right exercised in a previously filed action does not bar a subsequent action based on another elective right. “Construction-for-flats agreements can be terminated only by a court decision or by the joint will of the parties. In the present case, although it may be thought that the plaintiff landowners requested termination of the contract in the action they previously filed in the file of the ... 5th Civil Court of First Instance, Docket No. 2006/308, and thus exercised their elective rights in favor of termination (rescission) under Art. 106 of the former Code of Obligations No. 818 (BK) (TBK Art. 125), since that action was dismissed by the court, it is not possible to attach legal consequences to the plaintiffs’ will in this direction. Accordingly, while it should have been accepted that the plaintiff side may, in this action, as explained just above, claim the market value of the flats whose transfer was undertaken, within the scope of positive damages, on the basis of the second sentence of Art. 106/II of the BK No. 818 (TBK Art. 125/II, first sentence), and a decision rendered according to the result, rendering judgment as written on the basis of erroneous reasoning was not correct.” (Court of Cassation, 23rd Civil Chamber, Docket No. 2016/4932, Decision No. 2019/5121, 5.12.2019)

In some of its decisions, on the other hand, the Court of Cassation did not regard the change, during the action, of the elective right claimed as amendment, but ruled that it was a reduction of the relief sought. It was stated that, where the relief sought is reduced, there is no need for amendment.

“The plaintiff asserted that the used (second-hand) car in dispute had been purchased from the defendant on October 14, 2010, that it was later learned that the vehicle, which had been put into use, was recorded as a total loss, that the defendant side had not shared this information before the vehicle was purchased, and that the vehicle in dispute was therefore defective, and requested the annulment of the contract and the refund of the price paid for the vehicle; at the hearing at which the decision was rendered, the plaintiff’s attorney requested that collection from the defendant of 7,350.00 TL for loss of value be ordered.

The defendant requested that the action be dismissed.

The court accepted the plaintiff’s action and ordered that 7,350.00 TL be collected from the defendant in favor of the plaintiff, together with advance interest running from November 21, 2011, the date of service of the formal notice; the judgment was appealed on points of law by the defendant."

1-) The plaintiff filed the action requesting the annulment of the contract and the refund of 29,400.00 TL, the sale price of the vehicle, and at the hearing of September 25, 2014 specified its claims by stating: “we are claiming the price difference, in the expert report this amount is 7,350.00 TL, we are specifying our action in this way, let it be decided that our action be accepted..”

Under Art. 176/1 of the HMK No. 6100 (Art. 83 of the HUMK), "each of the parties may amend the procedural acts it has performed, partially or completely." The plaintiff’s statement is not a procedural act but a partial waiver relating to substantive law. In legal doctrine, this is also called narrowing of the relief sought. The plaintiff’s reduction of the relief sought does not count as expanding or changing the action. For a complete or partial waiver, neither the permission of the opposing party nor recourse to amendment is required. The plaintiff reduced the claim by specifying it as 7,350.00 TL. Therefore, while the court should have rendered a decision taking into account the plaintiff’s statement, which constitutes a partial waiver, rendering judgment as written is contrary to procedure and law and requires reversal.” (Court of Cassation, 13th Civil Chamber, Docket No. 2017/4147, Decision No. 2020/5500, 30.6.2020)

In a decision rendered in 2019, the Assembly of Civil Chambers of the Court of Cassation emphasized that changes can be made to elective rights by way of amendment. “The legislative rationale of the article of the HMK No. 6100 on amendment also includes explanations to the effect that "...the provision of Article 83 of Law No. 1086 has essentially been adopted, but its wording has been changed to make it easier to understand, and it has been arranged in two paragraphs. The parties will be able, as before, to expand and change their claims and defenses by way of amendment. Accordingly, the plaintiff will be able to change the cause of action stated in the statement of claim; for example, the plaintiff will be able to change the previously stated ground of a loan agreement and rely on the ground of unjust enrichment. Likewise, if the plaintiff has stated the facts in the statement of claim incompletely, the plaintiff will be able to complete them by way of amendment. Furthermore, just as it is possible for the plaintiff to increase by way of amendment the claim stated in the statement of claim, for example to raise the fifty thousand Turkish lira previously claimed to one hundred thousand Turkish lira, it is also possible for the plaintiff to change the claim; just as the plaintiff may abandon the car claimed in kind and claim its value by way of amendment, it is also possible to abandon the car altogether and claim a computer by way of amendment. In the same way, the defendant too will be able to amend the statement of defense submitted and complete the defense previously left incomplete, and also to change entirely the facts on which the defense is based...", thereby emphasizing the aspect of amendment that allows claims and defenses to be changed.” (Grand Assembly for the Unification of Case Law of the Court of Cassation, Docket No. 2017/8, Decision No. 2019/3, 24.5.2019)

8. Can amendment be used in a partial action and an action for an undetermined claim?

Although what a partial action and an action for an undetermined claim are, and the differences between them, are not the subject of this article, they need to be explained briefly because of their relationship with amendment.

A partial action is one in which only a certain part of the total amount of the receivable is made the subject of the action. While a partial action is an action for performance with respect to the part claimed, it has the effect of a declaratory action with respect to the remaining part not made the subject of the action. In a partial action, the remaining part can be claimed through the express consent of the opposing party, amendment, or the consolidation of a supplementary action filed. In a partial action, the part claimed constitutes conclusive evidence in the supplementary action to be filed.

“A supplementary action, on the other hand, is an action filed, either before or after the partial action is decided, for the receivable reserved in the partial action. As such, partial amendment is a legal institution that makes it possible to obtain, within the existing action, more simply, at lower cost and in a shorter time, the rights that could be obtained through a supplementary action, and in this respect it is almost an alternative to filing a supplementary action. For this reason, the plaintiff in a partial action has an elective right to file a supplementary action or to resort to partial amendment. Just as in a partial action the limitation period is interrupted only for the amount of the receivable made the subject of the action, if there was no default before the action, the starting date for interest will be the date of the action for the part made the subject of the partial action, and the date of the amendment for the amount increased by partial amendment. With respect to the part of the receivable that is sought to be included in the action by partial amendment, however, the limitation period will continue to run. Although in these respects there is a parallel between the supplementary action and the partial action, problems relating to amendment must still be assessed and resolved within the scope of the institution of amendment. For this reason, since increasing the value of the action falls within the scope of partial amendment, it is a continuation of the ongoing action and cannot be accepted as a new action or a supplementary action. Paying the court fee for the increased amount, on the other hand, is a procedural act; it cannot be interpreted as the filing of a new action. Furthermore, what must be included in the statement of claim is regulated in detail in Art. 119 of the HMK, and given that partial amendment can be made even orally at the hearing, the view that partial amendment is a new action is, from this perspective too, difficult to defend.”(Grand Assembly for the Unification of Case Law of the Court of Cassation, Docket No. 2017/8, Decision No. 2019/3, 24.5.2019)

An action for an undetermined claim, on the other hand, may be filed under HMK Art. 107 in cases where the plaintiff 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. When the value of the receivable becomes fully and precisely determined during the proceedings, the relief sought can be increased without the need for consent or amendment.

9. Is it possible to change the type of action by amendment?

Although the Court of Cassation has differing decisions, its recent decisions state that it is not possible to change the type of action by amendment. An example of this is that, where an action has been filed as a partial action, it cannot be converted into an action for an undetermined claim by a subsequent amendment. For a better understanding of the subject, we include its differing decisions here:

“After the expert report was obtained, the plaintiff’s attorney increased the claim by a petition dated July 9, 2015, stating "that the action is an action for an undetermined claim", and paid the required court fee. The court, on the ground that the rights to the excess had not been reserved in the statement of claim, decided to accept the claims limited to the amounts claimed in the partial action, and did not take into account the petition dated July 9, 2015. Since it was not stated in the statement of claim that an action for an undetermined claim was being filed, the type of action must be accepted as a partial action. The type of action cannot be changed by amendment. In a partial action, it is not mandatory to reserve the rights to the excess, and it is not possible to conclude that the plaintiff side waived its rights with respect to the amounts not claimed. Since the claim was increased in the petition dated July 9, 2015 submitted by the plaintiff’s attorney and the required court fee was paid, it must be accepted that the amounts in dispute were increased by way of amendment, and a decision on the claims must be rendered taking into account the claims in that petition as well.” (Court of Cassation, 9th Civil Chamber, Docket No. 2015/35227, Decision No. 2019/19369, 7.11.2019)

“Although the plaintiff may, if it wishes, change the subject of the action by completely amending the statement of claim, the new subject of the action replaces the previous subject of the action, and there is still a single action. In the specific dispute, the plaintiff requested in the statement of claim a declaration that the defendants are liable for the amount awarded as a result of the proceedings conducted in the case file of the Istanbul 1st Consumer Court, Docket No. 2008/5, which the plaintiff had filed against [...] inş. san. tic. ltd. şti. By the petition for amendment dated December 23, 2010, the plaintiff amended its claim by requesting that collection from the defendants of the principal amount awarded in the file of the Istanbul 1st Consumer Court, Docket No. 2008/5, and of the accessory claims attached to the principal debt be ordered. That being so, while the court should have taken into account that the plaintiff converted its claim into an action for performance by the petition for amendment, examined the merits of the action and rendered a decision in accordance with the resulting outcome, its dismissal of the action as written, on the ground that there was no legal interest, overlooking the fact that the plaintiff had amended its claim, is contrary to procedure and law and requires reversal. (Court of Cassation, 13th Civil Chamber, 11.07.2012, Docket No. 2011/14675, Decision No. 2012/17707; Eroğlu Orhan, Islah, Seçkin Yayıncılık, Ankara 2020, 3rd ed., p. 135)

10. When the relief sought is increased, from which date is the limitation period interrupted for the new claim?

The limitation period is interrupted by an action filed concerning a receivable. At this point, where the relief sought is increased by way of partial amendment, the question of when the limitation period is interrupted for this increased amount is a matter of debate. In a decision rendered while the former Code of Civil Procedure No. 1086 (HUMK) was in force, the Assembly of Civil Chambers of the Court of Cassation held that the limitation period for the part increased by way of amendment is interrupted from the date of the amendment. “Accordingly, in the present action, which was filed within the extended limitation period and in which the right to the excess was reserved, while the plaintiff could have increased the claim for compensation for pecuniary damage by way of amendment by September 11, 2003 at the latest, the plaintiff submitted the petition concerning amendment on February 25, 2004, long after the expiry of the limitation period; and the defendant side raised the limitation defense in time and in due form, limited to the amount increased by amendment. That being so, it must be accepted that the limitation period has expired with respect to the amount of compensation for pecuniary damage increased by way of amendment, and it must be decided that the part of the claim subject to the amendment be dismissed on the ground of limitation. While the local court should have complied with the Special Chamber’s reversal judgment based on the same reasoning, persisting in its previous decision on grounds that do not fit the facts and the legal situation is contrary to procedure and law. The decision to persist must therefore be reversed.” (YHGK, Docket No. 2008/4-326, Decision No. 2008/325, 16.4.2008)

However, in another, more recent decision, the Court of Cassation held that, since amendment is not a new action but a change made to the statement of claim, the limitation period for the amount increased by amendment is also interrupted as of the date on which the action was filed. “In the statement of claim, the claim was made with the rights to the excess reserved; after the expert report, the relief sought was increased by submitting a petition for amendment. The claim put forward by the plaintiff in the petition for amendment does not constitute a new action, but takes the form of an increase in the relief sought in the statement of claim. Therefore, the limitation objection, which can be raised only against the statement of claim, cannot be raised against the amendment. Amendment is regulated in Art. 176 et seq. of the Code of Civil Procedure No. 6100, which entered into force on October 1, 2011. Art. 177/1 of that Code expressly provides that amendment may be made until the end of the investigation. In that case, a limitation defense cannot be raised against the amendment. This is because amendment is not a new action but merely a change made to the statement of claim. In view of the statutory provision explained, since the local court’s dismissal of the part increased by amendment on the ground of limitation is not in accordance with procedure and law, the decision had to be reversed.” (Court of Cassation, 4th Civil Chamber, Docket No. 2011/11327, Decision No. 2012/2564, 21.2.2012)

Contrary to this decision, there are also judgments of different chambers of the Court of Cassation to the opposite effect. “In a partial action, however, the limitation period is interrupted only for the part sued for. For the part not yet sued for (reserved) and later increased by amendment, the limitation period continues to run. However, the amount in the partial action covers the limitation period calculated backward from the date on which the partial action was filed. If the remaining receivable falls within the limitation period calculated backward from the date on which it was claimed, it must be accepted that it is not time-barred. In short, the amount of the receivable in the partial action must first be set off against the receivable accruing forward from the date on which it was determined, and the remaining receivable must cover the period after that. After the receivable determined in the first partial action has been set off, the receivable falling within the limitation period calculated backward from the date on which the balance was claimed must be awarded in favor of the creditor. According to the contents of the file, in the action filed as a partial action, the plaintiff’s attorney increased the receivables by way of amendment after the expert calculation report, and the defendant’s attorney raised a limitation objection against the amendment. It is understood that, when the amount claimed partially is excluded from the awarded wage receivables for overtime and holiday work and the five-year period backward from the date of the amendment is taken into account, there are parts of the remainder that are time-barred. The court’s award of the wages for overtime and public holiday work without taking into account the limitation objection against the amendment and without obtaining an additional report on this point was incorrect and required reversal.” (Court of Cassation, 9th Civil Chamber, Docket No. 2016/19812, Decision No. 2020/6990, 2.7.2020)

“...that claims for compensation for unlawful occupation (ecrimisil) may be made retroactively for a period of five years and that earlier periods may not be claimed” was stated, and when the subject section and the content of the petition are assessed as a whole, it is understood that the defendant’s attorney raised the limitation defense within the statutory period with respect to the part increased by amendment. It is understood that the limitation defense raised by the defendant’s attorney within the statutory period with respect to the part increased by amendment, after the plaintiffs’ attorney increased the claim for compensation for unlawful occupation by amendment, was not discussed in the decision; while the court should have awarded the compensation for unlawful occupation to be determined by deducting from the part increased by amendment the amount that had become time-barred as of the date of the amendment, rendering a decision as written without taking this into account was not correct, and it was deemed appropriate to reverse the decision for this reason.” (Court of Cassation, 15th Civil Chamber, Docket No. 2019/2033, Decision No. 2019/4823, 25.11.2019)

11. Is it possible to reduce the relief sought, or narrow the claim, by amendment?

A reduction of the relief sought is characterized as a partial waiver. Under HMK Art. 307, “Waiver is the plaintiff’s partial or complete abandonment of the relief sought.” Under HMK Art. 309, it is not subject to the acceptance of the opposing party or the court either. “As in the case at hand, in order for the plaintiff to reduce the relief sought, neither the consent of the defendant nor recourse to amendment is required. The plaintiff may narrow the claim by way of waiver. Therefore, a reduction in the value of the action may be considered not within the concept of amendment but within the institution of waiver of the action.” (Eroğlu Orhan, Islah, Seçkin Yayıncılık, Ankara 2020, 3rd ed., p. 170; Court of Cassation, 13th Civil Chamber, Docket No. 2012/6887, Decision No. 2012/8246, 16.3.2012)

In actions whose subject is not money, on the other hand, if the subject of the action is narrowed, it is necessary to resort to the express consent of the opposing party or to amendment. In addition, with the approval of the opposing party, it is also possible to withdraw the action partially. The most important difference of this route is that the right itself is not waived. Accordingly, the withdrawn action can be filed again at a later date.

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

Att. Taha Hüseyin 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.