What is friendship?
In legal procedure, there are two parties to a case, the defendant and the plaintiff. Although there is uniqueness in the adjective, it is possible for the parties to have more than one. In other words, there may be more than one person on the plaintiff or defendant side of a case. In order to meet this need, HMK Articles 57-60. The concept of companionship is included in its articles.
Friendship, also called subjective case union; This occurs in cases where more than one person is on the plaintiff or defendant side in the same petition.
Friendship in the cause; They are grouped under two main headings: compulsory and voluntary litigation companions. Compulsory litigation fellowship is also regulated with two distinctions: material and formal litigation fellowship.
Below, we will make evaluations regarding compulsory and voluntary litigation friendship under separate headings.
OPTIONAL FRIENDSHIP
In optional litigation, more than one person can come together and file a lawsuit. Again, more than one person may be named as a defendant in the same case. As the name suggests, there is no obligation in this type of litigation friendship. More than one person who is a party may file the same lawsuit on their own. Again, a single person or some of them may be named as defendants. Based on this, it should be noted that; In fact, in a cause friendship, there are as many cases as there are friends. However, since these cases must be heard together, the trial is carried out on a single file. The concept of subjective case merger that we used above expresses this situation.
Optional companionship is provided in Article 57/1 of the Code of Civil Procedure. It is regulated in the article. The relevant article is as follows:
"Multiple people may file a lawsuit together, or a lawsuit may be filed against them, in the following cases:
- a) The right or debt that is the subject of the lawsuit is shared between the plaintiffs or defendants for a reason other than joint ownership.
- b) A right has arisen for the benefit of all of them through a joint transaction or they have become under obligation in this way.
- c) The facts and legal reasons that form the basis of the cases are the same or similar to each other."
The article of the law groups the situations in which voluntary litigation companionship is possible under 3 headings.
The first of these is the existence of a partnership other than joint ownership between the defendants or plaintiffs. As it is known, more than one person may have rights on a property. While such situations create joint ownership, there are two types of joint ownership: joint ownership and joint ownership.
According to Article 701 of the TMK; Joint ownership is the ownership of those who own the goods together due to the community formed in accordance with the law or the contracts stipulated in the law. In joint ownership, partners do not have determined shares, and the rights of each of them are widespread over all the goods included in the partnership. Joint ownership is mostly encountered on inherited properties. In case of joint ownership, compulsory litigation comes to the fore between the partners.
Shared ownership, in other words joint ownership; It is the ownership of something that is not materially divided by more than one person in certain shares. Unless otherwise determined, shares in shared ownership are considered equal. In shared ownership, stakeholders are considered optional co-defendants.
Another situation in which optional companionship is possible is that, through a joint action, a right has arisen for the benefit of all plaintiffs or defendants or they have become under obligation in this way. There is a situation of joint responsibility here. For example, when the debtor and the guarantor are jointly liable, both of them can be named as defendants. The important thing is that people on the same side do the transaction together.
The last possible form of optional companionship is when the facts and legal reasons that form the basis of the cases are the same or similar. In an incident where two people steal together, the person who wants to compensate for his damage can file a lawsuit against both of them. Because the cause of action of theft is common to both of them.
In cases where more than one person is harmed due to a single action, these people may be optional companions. An example Supreme Court decision included the following statements:
"More than one person may be harmed by a tort. Since this damage may be related to personal or property values, it occurs separately in terms of each damage. The result of this determination, which is valid in terms of substantive law, in terms of procedural law, is that each injured person's right to sue and demand is independent of the other, even though the damage is caused by the same tort. In other words, in compensation cases filed by the injured parties, even if their damages are caused by the same tort, there will be optional companionship, not compulsory litigation (HMK). 57/1-C), even if co-defendants file a lawsuit with the same petition, their cases are independent from each other (HMK 58). Y4HD. 2019/91 K.
In cases other than the 3 groups listed above, optional companionship is not possible. There are a limited number of situations in which optional companionship is possible in the law.
The Situation of Voluntary Companions
Those who have the right to file a lawsuit together (Article 57) do not have to file their lawsuits together. Each of these people can file a lawsuit separately, or together if they wish. This is also the case with regard to voluntary companionship between the defendants. For example, the creditor can file a lawsuit against each of the joint and several debtors separately (TCK Art. 162 et seq.), or if he wishes, he can file a lawsuit against some or all of the joint debtors together. In this last case, the solidary debtors on the defendant side are optional co-defendants; In other words, filing a lawsuit against them together is not an obligation, but a choice.
As clearly stipulated in Article 58 of the Code of Civil Procedure, titled "The status of optional co-defendants in the case", in voluntary co-defendants, the cases are independent from each other and each co-defendant acts independently of the other.
As we mentioned above; In voluntary litigation, unlike compulsory litigation, there is not a single case, but as many cases as there are litigation partners; These cases are heard together.
Fee for Optional Fellowship
If more than one plaintiff voluntarily comes together and files a lawsuit, each of them must pay separate fees. An example Supreme Court decision is shared below: "In the incident, since the act of infringement of the trademark and title attributed to the defendant is a common fact among the plaintiffs, it is obvious that there is a voluntary companionship between the plaintiffs within the framework of Article 57/1-c of the Code of Civil Procedure.
For the reasons explained above, while it is necessary to collect separate application, advance, decision and judgment fees for each plaintiff when filing a lawsuit, the decision should be reversed since it is not deemed appropriate to continue the trial in this way by charging a single fee when filing a lawsuit and to impose a single fee for all plaintiffs in the decision, and since the fee is related to public order and must be observed ex officio.” Y11 HD.2022/6914 K.
Situation in Objections
The procedural actions taken by their co-defendants are binding only on themselves. The authority objection made by one of his co-defendants is binding only on him. The situation is exactly the same in the statute of limitations objection.
The grounds for objection, such as whether the debt has not been incurred or the payment has been made, are common to all friends. Again, if there are deficiencies in the terms of the case, others will also benefit from the objection put forward by a co-defendant.
"In optional litigation companionship, the principle of independence of cases is valid and there are cases as many as the number of litigation companions. The cases of each litigation companion are independent from each other and each of the litigation companions acts independently of the others (TCC Art. 58). Since the cases are independent from each other in voluntary litigation companionship, as a rule, the case conditions and first objections are examined separately for each of the litigation companions. In terms of raising initial objections, only the litigation friend who put forward the first objection benefits from this objection." Y3HD. 2017/11228 K.
Judgment
A separate judgment is given for each co-defendant and this is clearly shown in the decision. An example Supreme Court decision is given below:
"The case is about the request for the collection of the real estate price arising from the timeshare sales contract signed between the parties. In voluntary litigation, the cases are independent of each other. Each of the companions acts independently of the other. Since there is more than one plaintiff in the case, and each of the plaintiffs demands the price of the timeshares that must be registered in their names as of the date of the case, there is a voluntary litigation between each plaintiff.
In cases where optional co-defendants are involved, although the claim is requested in a single lawsuit, there are actually as many lawsuits as each co-optional co-defendant. For this reason, while a decision should be made by showing the price awarded separately for each plaintiff, making a decision in writing is contrary to procedure and law and requires reversal.
The court should decide by showing the price awarded separately for each plaintiff, considering that there is a voluntary co-defendant between the plaintiffs, but establishing a ruling that the total value of the immovable properties on the date of the case should be taken from the defendant and given to the plaintiffs is contrary to procedure and law and requires reversal." Y3HD. 2022/8099 K.
The plaintiff must state what his request is from each of his co-defendants. Otherwise, this situation is resolved by the court. The following decision serves as an example:
"It is understood that there is a voluntary litigation friendship between the plaintiffs, and in the petition, a total of 10,000.-TL was requested to be collected from the defendant without specifying the amount for each plaintiff, and it was not clarified during the trial what amount was requested for each plaintiff. In such cases, the amount requested for each plaintiff must be determined by dividing the total amount requested to be collected by the number of plaintiffs and a judgment must be made accordingly, and in the case of the concrete case, this amount is 5,000.-TL for each plaintiff. This being the case, since the case was accepted by the court of first instance, although a judgment should have been made for each plaintiff on the basis of the specified amount and not to exceed this amount, in accordance with the provision of Article 26 of the HMK, it was not correct to make a decision without taking this issue into consideration, and it was necessary to reverse the decision." Y11 HD. 2021/2774 K.
Attorney's Fees and Trial Expenses
Attorney's fee is determined separately for each co-defendant. This situation is a result of there being as many cases as there are parties. In terms of other litigation expenses, each co-defendant pays his share of the expenses. In other words, the court may determine a common amount and distribute it among the co-defendants. Some sample Supreme Court decisions are shared below:
"In the concrete case, it is understood that there is a voluntary, not obligatory, litigation partnership between the plaintiffs. Accordingly, considering that the plaintiffs requested compensation separately, the attorney fee should have been assessed separately for each plaintiff based on the accepted compensation amounts, but the fact that a single attorney fee was determined based on the total amount of compensation awarded necessitated the reversal of the decision." Y4HD. 2018/5496 K.
"Although the plaintiffs' attorney, as a result of the request of the petition, demanded the joint and several collection of compensation from the defendants, which is the sum of the amounts they stated separately, and paid the fee based on the total value, the relationship between the plaintiffs is a voluntary litigation friendship, and in the voluntary litigation friendship, each case is independent from each other. The court ruled that the plaintiffs are in accordance with the 3rd paragraph of Article 326 of the Code of Civil Procedure No. 6100. Since there is no provision stating that they will be jointly responsible for the attorney fee, which is a type of litigation expense, the attorney fee so awarded is not correct, and the amount of attorney fees for which the plaintiffs will be responsible must be determined separately, based on the title of the appellant and the rejected pecuniary compensation amounts of the plaintiffs who were found to be wrong in the case (voluntary co-defendants). YHGK 2019/989 K.
Right of Appeal
Each of the optional co-defendants may appeal the decision alone. The verdict becomes final for optional co-defendants who have not appealed in due time.
"Voluntary co-defendants who have not appealed or appealed (and therefore the verdict has become final) cannot benefit from the results of other co-defendants applying for appeal or appeal." Y3HD. 2021/5312 K.
Reversal of the decision on appeal does not give any right to the party who did not resort to this method. The opinion of the Supreme Court in the following decision is in this direction:
"In voluntary litigation, since the cases are independent from each other and each can act independently of the other, the verdict will be final for voluntary litigation companions who have not resorted to legal action in due time. Since the defendant whose verdict has become final cannot benefit from reversal, it is against the procedure and law to decide to reject the case, while it should be decided that there is no need for a new decision to be made. While the fixed attorney's fee should be assessed in favor of the defendant who has been given a decision of non-jurisdiction in terms of judicial remedy, it is correct to assess the relative attorney's fee. It is not." Y3HD. 2018/12315 K.
Enforcement Proceedings
Optional companionship is also possible in enforcement proceedings. In this case, if one or more of the optional pursuers do not object to the payment order, the pursuit becomes final for that debtor. If more than one debtor objects, the plaintiff must make a choice when litigation is initiated. If the plaintiff names the objecting debtors as parties in the objection cancellation case, optional companionship will arise.
MANDATORY FRIENDSHIP
As we stated at the beginning of our review, compulsory litigation companionship; There are two types: material compulsory litigation companionship and formal compulsory litigation companionship.
In cases where the right that is the subject of the lawsuit is common between more than one person and the court has to make a single decision in the same way for all concerned about this legal relationship, it must be accepted that companionship is financially obligatory. In other words, in cases where it is mandatory for a right to be exercised by more than one person together or against more than one person, more than one person is a mandatory co-defendant.
The circumstances in which companionship is obligatory are determined according to substantive law. In compulsory litigation companionship; Since the relationship between co-defendants is very close, they have to act together in the case. The court will make a single decision for all compulsory co-defendants at the end of the case.
In some cases, although there is no financial obligation to file a lawsuit against more than one person together, the law; In order to ensure that the truth is revealed better and the legal relationship between the parties is concluded correctly, it has made it mandatory to file a lawsuit against more than one person, in which case there is a formal compulsory companionship. In such a case, it cannot be said that a single decision should be made about the co-defendants or that there is an obligation for the co-defendants to act together and in the same way (HGK, decision dated 03.07.2013 and numbered 2012/21-699 Principles, Decision no. 2013/1029).
Except for these compulsory cases of companionship, all cases of companionship are optional. YHGK K. 2015/789
The best example of financially obligatory companionship consists of cases arising from joint ownership. Here, the heirs can file a lawsuit together or be sued together. None of them can act independently of the other. There is more than one example of compulsory litigation friendship. These examples can be multiplied as the primary intervention case, the principal and the sub-employer being sued together in reinstatement cases, in the action for cancellation of savings the defendants are the debtor and other persons who transact with the debtor.
PROCEDURE IN MANDATORY ASSOCIATION
The procedure in compulsory litigation is regulated in Article 60 of the Civil Code. According to the relevant article; Compulsory co-defendants can only file a lawsuit together or a lawsuit can be filed against them together. In this type of litigation, companions must act together. However, the procedural actions taken by the co-defendants who came to the hearing are also valid for the co-defendants who did not attend the hearing even though they were duly invited.
Although it is stated in the provision that compulsory litigation partners must act together, in fact the obligation to act together exists only in materially compulsory litigation companions. Legally compulsory co-defendants do not have to act together.
The claims and defenses of the financial co-defendants must be in the same direction. Objections such as jurisdiction objection and statute of limitations are made together.
60. The following statements are included in the justification of the article:
"Accordingly, compulsory litigation companionship in material terms can only be possible if more than one person disposes of the rights or debts that cannot be divided with the cooperative partnership specified in the law. Considering the regulation in Article 64 (Article 59 in the law) regarding compulsory litigation companions, it is obligatory for the litigation companions to file a lawsuit together or to file a lawsuit against them together. Again, since the principle of giving a single verdict about the litigation companions is valid, the investigation and process to be carried out by the court The principle that co-defendants must act together in proceedings regarding the trial is valid.
However, if one or more of the co-defendants do not act together with the other co-defendants in bad faith or for other reasons that are not legally valid, for example, they do not come to the hearings or do not agree to the procedural procedures, the other co-defendants are not only harmed by this, but such attitudes and behaviors may also cause the delay of the cases. Considering this situation, in parallel with the regulations in comparative law, it has been clearly stated that the procedural actions taken by the co-defendants who came to the hearing will also be valid for the co-defendants who did not attend the hearing even though they were duly invited.
It should be accepted that the procedural actions taken by the co-defendants who came to the hearing in the article are valid both in case the party does not come to the hearing and remains inactive in the proceedings subject to time outside the hearing. On the other hand, this regulation is valid for procedural transactions in the case, but is not valid for procedural transactions with substantive law content such as settlement, waiver and acceptance. Because, in such substantive disposition transactions, co-defendants must only act together.”
The situation is different when it comes to compulsory litigation. Here, co-defendants do not have to act together. Each co-defendant may put forward his own claims and defenses. The court may also make different decisions for each co-defendant when making a judgment.
As we mentioned above, mandatory co-defendants can only file a lawsuit together. All of them must be named as defendants in lawsuits filed. Otherwise, the case will be rejected due to lack of party capacity. However, the court gives the parties time to complete this deficiency. Compulsory co-defendants who are not shown as a party within the given period must be added to the case. Some sample Supreme Court decisions are also shared below:
"In case there are heirs other than the plaintiff by bringing an inheritance certificate, the other heirs are included in the case in accordance with the provisions of HMK Articles 59 and 60 and their approval is obtained if they participate as principals, or the other heirs who are not in the case are ensured to duly give power of attorney to the attorney who filed the lawsuit, if this is not possible, giving time to the plaintiff who is following the case to appoint a representative to the estate and ensuring that the case is carried out through the estate representative to be appointed, by the heir who filed the lawsuit. "If the other heirs are not included in the case to obtain their consent to the case, or if the powers of attorney given by the other heirs to the attorney pursuing the case are not submitted, or if the said heir who filed the lawsuit does not file a lawsuit to appoint a representative to the estate, it would not be right to decide to reject the case on merits without considering that the case should be rejected due to the absence of an active party status." Y23HD. 2020/2933 K.
"The case is about the termination of the construction contract in return for land share and the request for cancellation and registration of title deed. It is understood that all land owners are parties to the case in the construction contract in return for land share, the annulment of which is requested. For this reason, the decision to be given by the court as a result of the trial will also affect the law of the other land owner who has signed the contract but is not shown as a party in the case. First of all, in order for a construction contract in return for land share to be made on the immovable properties subject to the contract and for the contract to be binding on the stakeholders and the contractor, all stakeholders or their authorized representatives must sign the contract. Since the lawsuit for termination or annulment of the contract is an "extraordinary action" in accordance with the same article, the court decides that it is mandatory for all joint stakeholders to file a lawsuit together, and that the other land owners, who are parties to the contract, have the status of compulsory co-defendants in the case, taking into consideration the provisions of Articles 59 and 60 of the Code of Civil Procedure, and after the plaintiff is formed as a party by giving time to be included in the case or to obtain their consent to the case. "The basis of the dispute must be examined by considering the claim and defense, an evaluation must be made within the framework of the evidence collected, and a decision must be made in accordance with the outcome." Y23 HD. 2020/2338 K.
"In ordinary partnership since the lawsuit must be filed jointly by all partners, the court must present the power of attorney of the ordinary partner he represents and give time for the ordinary partner who is not involved in the case to consent to the case, and if consent cannot be obtained, this is the case for the said person. "While a lawsuit should be filed to be merged with the lawsuit, and after the party formation is completed, the merits of the case should be entered into and the case should be concluded; since it is not right to reject the case on procedural grounds and reject the appeal on the merits, without giving a definite time for the completion of the deficiency in the power of attorney that could be eliminated, the decision had to be reversed in favor of the plaintiff." Y15 HD. 2019/4883 K.
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