What is the damage of love?

Turkish Code of Obligations 117 et seq. In its articles, it regulates the rules to be applied in receivable debt relations due to late performance of the debt by the debtor. Late payment of the debt by the debtor will cause default of the debtor . We included detailed explanations about the debtor's default in our previous review. For this reason, in order to avoid repetition, we will touch on the same subject, limited to the title of what is excess damage.

Excessive damage, in other words, excess damage, is regulated in Article 122 of the TCO. According to the relevant article, if the creditor suffers a loss exceeding the default interest, he is obliged to compensate for this damage unless the debtor proves that he has no fault. As it is known, in case of default of the debtor, the creditor's losses are covered by paying the default interest. However, there are some situations where the default interest is not enough to cover the losses incurred by the creditor. The following statements are included in the law regarding the concept of excessive damage, which was designed to prevent this problem:

"If the creditor suffers a loss exceeding the default interest, he is obliged to compensate for this damage unless the debtor proves that he has no fault."

It should be noted right away that excess losses will only come to the fore in case of default on monetary debts. As we mentioned above, when regulating the law, it was essentially adopted that there would be a loss suffered by the creditor and that this damage should be compensated by paying default interest. However, in cases where the default interest is insufficient to compensate for the damage, it will be necessary to apply to the institution of excess damage, which is one of the special consequences of default in monetary debts. The creditor is not expected to provide any proof in terms of default interest. This type of interest is awarded as a natural consequence of default. In this respect, there is a difference between excess loss and default interest. Because additional damage can only be awarded if the damage is proven.

The following explanations were made by the Supreme Court regarding the source and legal basis of the consequential damage:

"The legal reason for the additional damage debt is the unlawfulness that occurs with the default of the main receivable. Therefore, the debtor's obligation to compensate the additional damage (TBK art. 122) is a new debt, completely different from the main debt and default interest obligation, which continues to increase over time until the fulfillment of the main debt that started to occur with the default, and is completely independent of the main debt. Excessive damage liability, fault Article 122 of the Turkish Code of Obligations has adopted the presumption of fault. The fault sought for the liability for compensation arising from the additional damage is the default of the debtor. In other words, a fault relationship that causes the damage is not required and is not discussed. The existence of the debtor's fault in the default is essential for liability. As a rule, the creditor of the additional damage must first determine the existence of the principal receivable in default. It is obliged to prove the damage that is not covered by the default interest due to non-performance, and the appropriate causal link between the damage and the debtor's default. The debtor is not obliged to prove that the debtor is at fault in default. In this regard, the creditor's (plaintiff's) burden of proof should not be subject to very strict rules in cases of collateral damage, but should be evaluated within the structure and characteristics of each event, as in general proof methods. must be kept."

CONDITIONS FOR COMPENSATION OF EXTRA DAMAGES

After our explanations above, we feel the need to collect the conditions necessary for compensation for excess damage under one heading. The conditions for compensation for excessive damage are as follows:

1. The debt must be a money debt.
2. The debtor must be in default.
3. The creditor must have incurred a loss exceeding the default interest.
4. There must be an appropriate causal link between the damage and the debtor's default.
5. The debtor must be at fault in terms of excess damage.

The following explanations are made regarding these conditions from the decision of the General Assembly of the Supreme Court of Appeals:

The first condition required for the existence of excess (excessive) damage is the existence of the debtor's default in a monetary debt. The source of this monetary debt does not have any importance for the claimability of excess (excessive) damage. In this sense, Article 122 of the TCO has the possibility of being applied to all monetary debts, regardless of their source, provided that the default interest is enforceable. The basis of the debt may be tort, contract, unjust enrichment, law or acting without authority. On the other hand, it should be noted immediately that; The legal reason for excess (additional) damage liability is the unlawfulness caused by the default of the principal receivable. For this reason, the debtor's obligation to compensate for excess (additional) damage is a new debt, completely different from the main debt and default interest obligation, and continues to increase over time until the fulfillment of the main debt, which begins to occur with default, and is completely independent of the main debt.

The second condition required for the existence of excess (excessive) damage; is the existence of creditor damage that cannot be covered by default interest due to the debtor's default. However, if the creditor's loss is less than or equal to the default interest, the existence of excess (additional) damage cannot be mentioned because the loss will be covered by the default interest. It should be emphasized at this stage that; The scope of Article 122 of the TCO includes debt relationships in which contractual default interest is applied in addition to legal default interest. In other words, the fact that the default interest arising from the legal relationship between the creditor and the debtor is contractual or legal does not constitute an obstacle to the claimability of excess (additional) damage. The important issue here is to prove that the creditor has a loss that cannot be covered by default interest.

The third condition required for the existence of excess (excessive) damage; is that the debtor is at fault in default. Because excess (additional) damage liability, unlike liability for default interest, is based on fault liability, and the fault sought here is the fault of the debtor in defaulting. However, in cases where the claim of excess (excessive) damage is asserted, the existence of the debtor's fault in default is essential for liability in the presence of other conditions. In other words, after a default, the creditor does not need to prove the debtor's fault in defaulting. On the contrary, the debtor is responsible for the excess damage unless he proves that he is blameless in default.

The last condition required for the existence of excess (excessive) damage is; It is the existence of a causal link between the debtor's default and the creditor's excess (additional) damage. In this context, the creditor is obliged to prove the causal link between the debtor's default and the excess damage he claims. YHGK 2022/401 K.

PROOF OF EXCESSIVE DAMAGE

The burden of proof of excessive damage is on the creditor who claims the existence of this damage. The creditor must be able to prove his damage. According to the Supreme Court; In a claim for additional damage, the alleged damage must be proven concretely, believably and clearly by the creditor through legal means of proof. Below are the evaluations of the General Assembly of the Supreme Court of Appeals on the subject:

"If the damage suffered is more than determined by the competent authority and therefore supplementary damage is to be requested based on Article 105, the criteria that that authority uses/considers/evaluates to determine the rate of damage and the fact that they are "well-known" should not be based on the concrete facts specific to the case. These should also be proven with suitable and valid evidence. The facts to be proven here are the plaintiff's exposure to late payment. "It is the events that give rise to the damage and the actual damage suffered due to these events. For example, the creditor who cannot receive his receivables on the due date, borrows with an interest higher than the previous days' interest paid by the debtor in order to pay the debt due on the same day, or has to pay a higher interest rate to his creditor, or has to buy foreign currency at a higher rate in the following days due to not being able to collect his receivables on the date for the debt he agreed to pay in foreign currency."

CAN EXCESSIVE DAMAGES BE CLAIMED DUE TO INFLATION?

The Supreme Court has adopted in its established jurisprudence that inflation alone is not sufficient to prove collateral damage. Due to high inflation, a presumption of proof in favor of the creditor was not accepted. On the other hand, in this decision of the Constitutional Court dated 21.12.2017 and application number 2014/2267; Since it was understood that the applicant's receivable within the scope of the property right was paid with a significant loss of value against inflation, a personal and extraordinary burden was imposed on the applicant, and despite this determination, the courts of first instance had a strict interpretation that the applicant should also prove that he suffered damage, and therefore, the fair balance that should be established between the public interest and the protection of the applicant's property right in terms of the concrete case was evaluated against the applicant, and the property right was violated and a retrial was decided.

Despite the relevant decision of the Constitutional Court, after this decision, the General Assembly of the Supreme Court of Appeals ruled that inflation alone is not evidence in proving the supplementary damage and that the creditor must prove his damage. We find this decision wrong. Because, in the face of the inflationary environment that the country has been in in recent years and the incredible increase in exchange rates, it is not a fair approach to require separate proof of the additional damage suffered by citizens. Moreover, this situation was also evaluated in the dissenting opinion of the HGK decision, which we will include below. The dissenting vote, which we also agree with, is as follows:

"Although there are some decisions in the Supreme Court practice stating that the existence of additional damage will be deemed proven in the face of inflation caused by excessive price increases, there are also decisions made accepting that the plaintiff creditor has to prove the existence of additional damage with concrete evidence as a predominant practice.

While these different practices regarding collateral damage continue, there is a Constitutional Court decision that resulted in a violation decision in an individual application made regarding a case that was rejected by seeking the existence and proof of concrete damage.

In this decision of the Constitutional Court dated 21.12.2017 and application number 2014/2267; Since it was understood that the applicant's receivable within the scope of the property right was paid with a significant loss of value against inflation, a personal and extraordinary burden was imposed on the applicant, and despite this determination, the courts of first instance had a strict interpretation that the applicant should also prove that he suffered damage, and therefore, the fair balance that should be established between the public interest and the protection of the applicant's property right in terms of the concrete case was evaluated against the applicant, and the property right was violated and a retrial was decided.

With this decision of the Constitutional Court, the current dominant practice of seeking the existence and proof of concrete damage must be reconsidered. Even though individual application decisions are binding for the relevant file and cannot be said to be binding for all judicial practices, they should be taken into account as guiding decisions with a subjective effect in order to determine the scope of fundamental rights and freedoms and to carry out judicial practices in accordance with this scope.

While it is accepted that there is a concrete loss due to reasons such as the creditor having to take out a loan due to not being able to receive his receivables on time, borrowing money with interest, etc., it cannot be said that a person who does not act in this way and has to use the resources at hand subject to property rights and whose assets are destroyed in this context does not suffer a loss in the inflationary environment. Because the loss occurs not only with the increase in liabilities but also with the meltdown in assets. In addition, the fact that the value of an asset (house, car, etc.), whose value would have been preserved by adding it to assets if the receivable was received on time, will not be able to be added to the asset because its price has increased to the extent that it cannot be included in the asset exceeding the purchasing power when the receivable is obtained, will also indicate a decrease in the value of the asset.

For the reasons explained, seeking concrete damages in terms of increase in liabilities will not always yield equitable results. It is a fact that is known to everyone in the ordinary course of life that a loss will occur due to the creditor receiving his receivables late due to inflation that occurs in periods where prices are excessively high and there are unforeseen changes in foreign exchange prices, and in such cases, it should be accepted as a presumption that the necessary damage has occurred. In ordinary increases that have not reached this level, this presumption will not be applicable and proof that concrete damage has occurred will still be required.

In cases where the aforementioned presumption is realized, the existence and amount of additional damage can be determined by comparing the values obtained and to be obtained with the expert or expert board report by evaluating economic indicators such as price increase indices, foreign exchange rates, investment instruments, interest rates, employees' wages.

For the reasons explained above, it is appropriate and appropriate to resist the previous ruling on the grounds that concrete damage does not need to be proven separately with concrete facts, against the decision to overturn the decision that seeks the existence of concrete damage in the proof of additional damage. However, since the special chamber has not made an evaluation in this context and examined the merits of the matter, and it has not been evaluated whether the expert report containing calculations based solely on interest rates is sufficient or whether a new report is required, we are of the opinion that the file should be sent to the special chamber for review of appeal objections in this context, we cannot agree with the valuable majority opinion in reversing the decision of the special chamber." YHGK 2021/1629 K.

Contrary to the HGK decision above, there are also decisions that some chambers accept inflation as a presumption and that abstract proof is sufficient. Some of these decisions are shared below:

"In the dispute subject to the decision of the Constitutional Court dated 21.12.2017 and application numbered 2014/2267, which was given as a result of an individual application, "Inflation and the resulting exchange rate, deposit interest, Treasury bill and government bond interest rates being much higher than the fixed legal and default interest rates result in the benefit of the debtor and the loss of the creditor. For this reason, the debtor does not pay his debt on time, and when he resorts to legal action, he tries to extend the judicial period; Thus, cases and prosecutions in judicial authorities increase, trust in the judiciary decreases, the idea of spontaneously obtaining rights becomes widespread, public order is disrupted, and personal and social security is undermined ( Constitutional Court 1997/34 Esas, 19898/79 Decision, 15.12.1998 ). In case of late payment of the receivable within the scope of the property right, the real value of the property decreases with the noticeable depreciation in the value of money due to inflation in the meantime, and it is not possible to benefit from the return of this price as a savings or investment tool. In this way, people are treated unfairly by being deprived of their property rights (AYM 2008/58 Essential, 2011/37 Decision, 10.2.2011).

As a result, with the opinion that the property right was violated, the file was returned to the local court on the grounds that there was a legal benefit in holding a retrial to eliminate the consequences. Although our Chamber's long-established practice and decisions accept concrete proof of the consequential damage by the plaintiff, considering the developing economic conditions, the view that the right to property is protected in law, and the binding nature of the Constitutional Court's decisions, it is separated from the general rule of proof and accepted as a well-known fact as long as the inflation pressure continues, and the creditor is considered to be a well-known fact as long as the inflation pressure continues. In the expression of the article, the obligation to prove the existence of additional damage had to be abandoned." Y15 HD. 2018/1742 K.

"Although our Department has accepted and practiced for many years that the plaintiff creditor has to prove the existence of collateral damage with concrete evidence, in the dispute subject to the decision of the Constitutional Court, dated 21.12.2017 and application numbered 2014/2267, given as a result of an individual application, it was understood that the applicant's receivable within the scope of the property right was paid with a significant loss of value against inflation, causing personal and extraordinary damages to the applicant. Due to the strict interpretation of the courts of first instance that the applicant must prove that he suffered damage despite this determination, the fair balance that should be established between the public interest and the protection of the applicant's property right in terms of the concrete incident was evaluated against the applicant and the property right was violated and a retrial was decided. In the face of the decision that the property right was violated and a retrial was imposed, the practice that the additional damage must be proven with concrete evidence was abandoned with the thought of not causing a violation of rights, and the Constitutional Court decided to preserve the fair balance between the developing economic conditions and the property right and the public interest. Considering the binding nature of the violation decisions, it has been adopted that the existence of collateral damage should be accepted as a presumption if the returns of inflation and the related exchange rates, deposit interest, government bonds and other investment instruments together with the interest rates are higher than the default interest.

As for the concrete incident in line with these explanations; The plaintiff claimed that he had proven his additional damage with concrete evidence by selling his real estate, taking out loans from banks and being subject to enforcement proceedings due to the late payment of his receivables despite the default, and although the expert committee that prepared the report based on the judgment made calculations by accepting that the additional damage was proven by concrete evidence in its report and additional report; As can be seen in the expert report, most of the real estate sold and most of the individuals or companies using bank loans are not the plaintiff company, and the execution proceedings in which the plaintiff company was used and sold due to its inability to collect its receivables on time, and it cannot be proven that it was spent for this purpose, and the causal link cannot be proven, and it is not possible to take the report as a basis for the decision in its current form, since only the loan used and follow-up interest should have been included in the calculation, but the principals of the loan and debt were included. "Y15HD. 2018/4739 K.

Pilot Decision of the Constitutional Court Regarding the Application Alleging that the Damage Resulting from the Loss of Value of the Receivables in the Face of Inflation, Published in the Official Gazette Dated 29.09.2025, was Not Compensated

Our above statements aside, the Constitutional Court tried to put an end to the discussions on the subject with its decision dated 08.07.2025 and application number 2024/41763, published in the Official Gazette dated 29.09.2025. As can be seen from the statements we shared in the press release section below, the court stated that inflation alone is sufficient to claim additional damage. In addition, since it aims to end the discussions on the subject, it has decided to postpone the examination of the applications made alleging violation of property rights until the date of publication of the decision, and the applications made on the same subject to be registered after this date, for six months from the publication of the decision in the Official Gazette, and to report the situation to the Turkish Grand National Assembly in order to carry out the necessary legal studies. This decision is very important in terms of additional damage and is an important step towards providing a legal basis for compensation for excess damage due to inflation. The press release published on the official website of the Constitutional Court regarding the decision is as follows:

"The applicant initiated enforcement proceedings against a private bank on 9/11/2010 in the enforcement office over the principal receivable of 48,854 TL due to the dispute arising from the housing finance loan. The bank objected to the enforcement proceedings and the enforcement proceedings were stopped. The applicant filed a lawsuit for cancellation of the objection; at the end of the trial, the debtor's objection was cancelled, the proceedings were based on the principal receivable and the principal receivable will continue from the date of pursuit until the debt is paid in full. It was decided to continue by applying 9% annual default interest. In addition, in the decision, it was decided that the enforcement denial compensation of 9,770.80 TL, which was assessed as 20% of the original receivable amount in accordance with Article 67 of the Enforcement and Bankruptcy Law No. 2004, should be taken from the defendant and given to the applicant, and the request for the excess of 738 TL was rejected and this decision was not appealed by the parties on 1/7/2020. After the decision, a total of 119,114.76 TL was deposited by the debtor on 2/7/2020 and the debt was paid.

Following the payment of the debt, the applicant stated that the legal interest paid over a period of approximately ten years did not cover the loss of value of his receivable against inflation and filed a lawsuit in accordance with Article 122 of the Turkish Code of Obligations No. 6098, requesting the payment of 100,000 TL with the interest to be accrued as of 2/7/2020, without prejudice to his rights and receivables regarding the surplus in return for the additional damage. The consumer court rejected the case, and after the appeal and appeal stages, the rejection decision became final.

Claims

The applicant claimed that his right to effective remedy in connection with his right to property was violated because he was not compensated for the damage caused by the depreciation of his receivables against inflation, arising from the debt relationship between him and the private law person.

Court's Evaluation

Articles 35 and 40 of the Constitution impose the responsibility on the state to create the legal infrastructure and mechanisms that will eliminate the significant loss of value that receivables between private legal entities will suffer against inflation. In this context, the state is obliged to take measures to ensure a fair balance between the interests of the parties in disputes between private law persons.

If the creditor collects his receivable late, failure to compensate for the loss of value due to inflation prevents him from reaching his receivable at its real value; It causes the debtor to pay his debt below its real value. This situation disrupts the fair balance between the parties to the detriment of the creditor and imposes an unreasonable burden on the creditor.

With the Law No. 3095 on Legal Interest and Default Interest, a legal remedy has been created to compensate and compensate for the loss of value of receivables due to the effect of inflation. When the general justification of the said Law is examined; It has been stated that the debtor benefits from not paying his debt on time, that payment is generally not made without resorting to litigation and enforcement, because every period of time that passes during the lawsuit and follow-up works in the debtor's favor, and that the stated situation increases the number of lawsuits and enforcement proceedings. In addition, in the justification, it is stated that the debtors not only cause lawsuits and enforcement proceedings against them, but also resort to all means to prolong these proceedings, and that the bill was prepared to prevent these behaviors of malicious people and to adapt the legal interest and default interest to current conditions. Therefore, it is clear that the will of the legislator is to eliminate the problems caused by inflation. However, according to Article 1 of the Law, legal interest cannot exceed twenty-four percent. Therefore, although it is understood that some rates have been determined for different legal issues with the mentioned regulations, it is seen that these regulations are not linked to inflation rates. In other words, it has been understood that the provisions regarding interest included in Law No. 3095, which was designed to prevent the loss of value of receivables against inflation, do not have the capacity to offer a chance of success in preventing the loss of value even at the theoretical level.

Annual interest rates and inflation data regarding the effect of the legal remedy foreseen by Law No. 3095 on the concrete case were examined and it was observed that the interest rates determined in Law No. 3095 regarding the dispute subject to the application were below the inflation rates. For this reason, it is clear that the applicant's receivable - which he received late due to the debtor's failure to pay his debt on time - lost value against inflation.

In some disputes that are similar to the concrete case in terms of subject matter, damages in excess of interest have been tried to be eliminated through a supplementary damage lawsuit in accordance with Article 105 of the repealed Law No. 818 and Article 122 of the Turkish Code of Obligations No. 6098. It is seen that in some judicial decisions since the 1980s, these cases were accepted by considering the fact of inflation as sufficient to prove the damage, but in some decisions, the claim for additional damage was rejected on the grounds that it should be related to a concrete damage other than the effect of inflation.

Therefore, it has been observed that the supplementary damage lawsuit within the scope of Article 105 of the repealed Law No. 818 and Article 122 of the Law No. 6098 does not guarantee compensation for the loss of value of receivables against inflation, and the jurisprudence in this regard has not developed in the direction of an effective legal remedy. For this reason, it has been evaluated that the collateral damage lawsuit within the scope of Article 105 of the repealed Law No. 818 and Article 122 of the Law No. 6098 does not have the capacity to offer a chance of success at the theoretical level in terms of compensating the loss of value of the receivable due to inflation.

As a result, it has been concluded that there is no effective legal remedy in the legal system to compensate for the loss of value of the applicant's receivables against inflation.

For the reasons explained, the Constitutional Court decided that the right to effective application in connection with the right to property was violated and that the pilot decision procedure should be implemented."

STATEMENT OF DAMAGES FOR LOVE

There are various views on when the statute of limitations for additional damage occurs. According to one view, additional damage is subject to the statute of limitations of the principal claim. Another view states that tort statute of limitations will apply.

The Supreme Court is of the opinion that the additional damage is subject to the general limitation period of 10 years. It is stated in the decision below:

"The obligation to compensate for the additional damage mentioned in Article 105 of the Code of Obligations is a new debt, different from the original debt and the obligation to pay default interest, completely independent of the main debt, which begins to occur with default and continues to increase over time until the fulfillment of the main debt. While the legal cause of the main debt is, as a rule, unfair action, unjust enrichment or contract, the legal reason for this debt is the main receivable. Default is a violation of the law, in other words, not paying the debt or not paying it on time. Therefore, due to its legal nature and character, it does not end with the enforcement proceedings or filing of a lawsuit regarding the main receivable and its interests. Therefore, the right to claim based on additional damage is essentially a receivable right and there is no special provision regarding the statute of limitations in Article 105 of the BK. "The ten-year statute of limitations in Article 125 will be applied. The beginning of the period will start from the time when the receivable becomes due in accordance with the general provision, based on the legal structure of the additional damage." Y11 HD. 2001/8432 K.

Another Supreme Court decision is as follows:

"In this context, let us immediately state that the legal reason for the additional damage debt is the legal contradiction that occurs with the default of the main receivable. Therefore, the debtor's obligation to compensate for the additional damage (BK 105) is a new debt, completely different from the main debt and default interest obligation, which continues to increase over time until the fulfillment of the main debt that begins to occur with default, and is completely independent of the main debt. Supplementary damage Due to this legal nature and character, it will not result in an enforcement proceeding or filing a lawsuit regarding the principal receivable and its interests, and even if it is not claimed alongside the principal receivable and default interest during the enforcement proceeding or lawsuit (Article 105/2 of the Code of Procedure), it cannot be considered as a debt included in the subject of the pursuit or lawsuit. In this case, it cannot be considered as a debt that is included in the subject of the pursuit or lawsuit, indicating that the right to additional damage is reserved in the enforcement proceeding or lawsuit for the collection of the principal receivable together with its interest. "There is no need for a reservation. It can be requested at any time within the ten-year statute of limitations in a separate lawsuit." Y15HD. 2021/859 K.

Start of Statute of Limitations

The starting date of the statute of limitations is the date on which the debt becomes due. In other words, the lawsuit must be filed within the 10-year statute of limitations from the date on which the creditor's additional damage occurred. According to the Supreme Court, the statute of limitations will start after the main receivable is fully collected. However, as can be understood from the provision of TCO 122, if a determination can be made regarding excess damage in an ongoing case, excess damage can be claimed in the same case. In such cases, the statute of limitations should run from this date. The decision of the Supreme Court is as follows:

"It is possible to claim the supplementary damage receivable, regulated in Article 105 of the Code of Obligations, together with the main receivable lawsuit, as well as to claim it later in a separate lawsuit. If it is possible to determine the amount of the additional damage caused by the late collection of the receivable on the date when the main receivable lawsuit is filed, it can be considered that the lawsuit should be filed on the same date and the statute of limitations starts on that date, but the damage that will occur if the receivable is not paid at all or partially paid. "Since it is not possible to determine the amount, the starting date of the statute of limitations in additional damage cases should be considered as the date on which the entire receivable is collected." Y15 HD. K. 2006/1234