Transfer of the subject of the case

In our legal system, there are two parties to a case, the defendant and the plaintiff. The status of a party in a lawsuit can only be gained through ownership of the subject matter of the lawsuit. In other words, the title of party is a concept determined according to substantive law, indicating the authority to sue a subjective right or the authority to claim a subjective right as a defendant.

Again, the principle of freedom of disposition is valid in our legal system. This principle provides individuals with the freedom to dispose of the property under their ownership and to exercise their rights. In accordance with the principle of freedom of disposition, a right or property can be freely disposed of even after being subject to a lawsuit.

The transfer of a property that is the subject of a lawsuit may be prevented by precautionary injunction. However, in some cases, a request for interim injunction may not be made regarding the subject matter of the case, or the request may be rejected. In these cases, the transfer of the property or right subject to the lawsuit to a third party may come to the fore. In the event that the institution of transfer of the subject of the case is not accepted, the status of the party will cease and the trial will remain irrelevant. Since the plaintiff who has an interest in the case cannot change sides, he will not be able to continue the case and the material truth will not be revealed. This situation is incompatible with the aim of procedural law to reveal the material truth. Again, hearing the person who took over the property or right in question without being included in the case will violate the legal right to be heard. These needs have made legal regulation necessary in terms of the transfer of the subject of the case.

The transfer of the subject matter of the case also means the transfer of the title of the party. Because the title of party cannot be transferred regardless of the subject. In case of transfer, a change of parties is required to ensure the continuation of the case. As an exception to the prohibition on changing the case regulated in Article 141 of the Code of Civil Procedure, the transfer of the subject of the case was needed. This institution also serves the principle of procedural economy.

Detailed explanations about the purposes and nature of the transfer of the subject of the case are included in the following decision of the General Assembly of the Supreme Court of Appeals:

"As it is known; even after the lawsuit is filed, if there is no limiting reason, the property or right subject to the lawsuit can be transferred to third parties, which is a requirement of the freedom of disposition rule and a natural consequence of being the rightful owner or owner.

With the transfer of the property or right that is the subject of the lawsuit to someone else, the right to sue that is attached to that property or right is also deemed to be transferred. The party who transfers the subject of the lawsuit to someone else during the lawsuit no longer has any authority (right) to dispose of the subject of the lawsuit. In other words, the transferring party in question no longer has the title of a party in that case.

The adjective in the case is related to whether the party is the subject of the substantive legal relationship in question. Partial status (hostility) is a concept determined according to substantive law, indicating the authority to sue a subjective right or the authority to claim a subjective right as a defendant. While the qualifications for a lawsuit, the capacity to sue, and the authority to pursue the case are related to the personalities of the parties to the case, the title of party is related to the subjective right that is the subject of the lawsuit.

The party on the plaintiff side can be referred to as an active litigant, and the party on the defendant side can be referred to as a passive party. In practice, the term "hostility" is also used instead of "adjective". The adjective is not a condition of litigation, but an objection. Because whether a person is a beneficiary or a debtor can be determined after entering into the merits of the case. In this case, the case is rejected or accepted on its merits. However, the circumstances of the case are such that they prevent getting into the merits of the case. However, since it is an adjective objection, the judge automatically takes into consideration the party's adjective, like other objections, as long as he can understand it from the case file ( Kuru, Vol. I., p. 1157 et al. ).

As mentioned above, it is not possible for the party who has transferred the subject of the case to someone else to continue the case as a party or to continue the case against him (as it was). However, the transfer of the property or right in question to a third party during the case, as a party procedural transaction, is intended to be resolved by "transfer of the subject of the case" in procedural law, as to what kind of effects it will have on the current case. Thanks to the institution of transfer of the subject of the case regulated in the civil procedure laws, in case one of the parties transfers the property or right in question to a third party during the case, the case is prevented from being rejected on the merits due to lack of qualification (Börü, Levent: Transfer of the Subject of the Case, Ankara University Social Sciences Institute, Department of Private Law (Civil Procedure and Enforcement-Bankruptcy Law), Doctoral Thesis, Ankara 2012, p. 32-37). This situation also serves the "procedural economy" that dominates the trial, which is included in Article 141/4 of the Constitution of the Republic of Turkey No. 2709 (the Constitution) and Article 30 of the Civil Procedure Code, which covers the principles of cheap, simple and rapid trial by preserving the legal results obtained until the period.

On the other hand, the institution of transfer of the subject of the case is in a close relationship with the right to be heard. Giving the parties the right to be heard is a constitutional right. The right to claim and defense and the right to a fair trial, guaranteed under Article 36 of the Constitution, also include the right to be heard. Again, in Article 6 of the European Convention on Human Rights, the right to be heard is guaranteed within the right to a fair trial. This right is also called the right of the party to explain its intention to the judge or the right to claim and defend. However, the legal right to be heard has a broader meaning that includes these expressions (decision of the General Assembly of Law dated 20.10.2020 and numbered 2017/4-1498 E., 2020/791 K.).

The right to be heard is also regulated in Article 27 of the Code of Civil Procedure; Parties to the case, interveners and other stakeholders in the trial have the right to be heard in connection with their own rights ( HMK 27/1 ). This right; It includes having information about the trial, the right to explanation and proof, the court's evaluation by taking into account the explanations, and the concrete and clear justification of the decisions (HMK 27/2). As can be seen, the legal right to be heard has the elements of the right to be informed, the right to explanation, and the right to be taken into consideration, and the institution of transfer of the subject matter of the case is closely related to all three elements. Because there will be changes at the material and procedural level with the transfer of the subject of the case, a decision must be made without violating the legal rights of the transferee (legal successor), transferor (predecessor) and the opposing party.

In our procedural law, it has been accepted that the property or right subject to the lawsuit can be transferred during the continuation of the case, except in isolated cases, and the procedural procedures to be carried out in case of transfer and assignment of the subject matter of the case to a third party by the parties are regulated in Article 125 of the Civil Code (HUMK Article 186). " 2022/193 K.

The transfer of the subject of the case is regulated in Article 125 of the Civil Code. In the relevant article, the possibilities of transfer of the subject matter of the case by both the plaintiff and the defendant are separately included. We will make our statements under separate headings within the systematic of the law.

TRANSFER OF THE SUBJECT OF THE CASE TO A THIRD PARTY BY THE DEFENDANT

HMK's 125/1. The article contains the regulations regarding the transfer of the subject matter of the case by the defendant to the third party and is as follows:

After the lawsuit is filed, if the defendant transfers the subject of the lawsuit to a third party, the plaintiff can use one of the following powers:

• a) If he wishes, he may give up his lawsuit against the transferor and continue his lawsuit against the person who took over the subject of the lawsuit. In this case, "if the case is concluded in favor of the plaintiff", the transferor and the transferee of the subject matter will be jointly responsible for the litigation expenses.
• b) If he wishes, he can turn his case into a compensation case against the transferring party.

As can be seen, the law grants the plaintiff two optional rights in this case. The first of these is to continue the lawsuit against the transferee. In case of transfer, the court should remind the defendant of his optional rights and determine which choice he made. This situation is stated in the following Supreme Court decision as follows:

"The assignment of the subject matter of the case to the third party will be taken into account ex officio by the court. However, the judge will not reject the case due to the disappearance of the condition of the lawsuit and will give priority to the other party to exercise its right of choice in accordance with Article 125 of the Code of Civil Procedure No. 6100, which is an exception to the prohibition of changing the case or defense. In the event of the transfer of the immovable property subject to the lawsuit after the lawsuit is filed, the other party, if it wishes, will give up its lawsuit with the assignor and take over the immovable property. It continues the lawsuit against the owner, and if it wishes, it can turn the lawsuit filed against the assignor defendant into compensation. Upon examination of the title deed records in the file, it was understood that the defendant transferred the independent sections subject to the lawsuit after the date of the lawsuit. In this case, the court should take action in accordance with the 1st paragraph of Article 125 of the Code of Civil Procedure, and then make a decision on the merits of the case, but reject the request for title deed cancellation and registration on the grounds that the immovable properties in question were transferred to third parties. "The decision was not deemed correct, and for this reason the verdict had to be overturned." Y14 HD. 2020/4679 K.

a-Plaintiff's Continuation of the Case Against the Transferee

If the plaintiff wants to continue the case against the transferee, he can continue the case by declaring that he has exercised this optional right. In order for the case to continue, an invitation must be sent to the transferee and he must be included in the case as a party. It is also stated in the following Supreme Court decision:

"In the concrete case, since the plaintiff sold the immovable property in question, the plaintiff's party status, that is, his capacity for active hostility, in terms of the case of preventing confiscation and … has ended. In this case, the Court must notify the new owner of the case." Y8HD. 2020/5224 K.

Then, the action to be taken by the Court should be to provide notice of the case to the new owner, considering that the disputed immovable property has been transferred, and if the owner states that he will follow the case, the trial should be continued from where it left off, otherwise a decision should be made according to the result.

In this case, the dispute between the plaintiff and the former defendant does not end but continues. As a result, the plaintiff continues to have the right to sue the former defendant for damages.

The new defendant continues the case from where he left off. Therefore, the transferee does not have the right to request the repetition of procedural procedures. Moreover, since this case is not a new case, temporal issues are determined according to the opening date of the old case. (statute of limitations and limitation period)

The new defendant cannot expand or change the defense. However, personal defense reasons may be put forward.

In this case, the verdict is now given for the new defendant. However, the law holds the transferor and the transferee jointly responsible for the litigation expenses.

If the plaintiff loses the case due to the good faith of the defendant, the transferor may file a lawsuit for compensation against the defendant.

In this case, it is not necessary to pay the fee again. It is not possible to return after the selection is made. The following Supreme Court decision is in this direction:

"During the trial, after the registered owner sold the 7/8 shares in question, he used his right of preference in Article 125 of the Code of Civil Procedure No. 6100 and filed his lawsuit against the person who transferred the subject of the case. After the plaintiff used his right of preference as a request for title deed cancellation and registration against the next registered owner, he cannot turn back from this choice and turn it into a lawsuit for compensation against the assignor. In that case, the plaintiff cannot file a lawsuit against the person who transferred the subject of the case, using his right of choice in Article 125 of the Code of Civil Procedure No. 6100. "While a decision should have been made by the court due to the transfer made by taking into account the right of preference exercised in granting property rights in accordance with Article 125, the decision on compensation necessitated reversal." Y14HD. 2020/4028 K.

b-The Plaintiff's Transformation of His Case into a Compensation Case

According to Article 125/1-b of the Code of Civil Procedure, in case the subject of the lawsuit is transferred by the defendant, the plaintiff has the option to convert his case into a compensation case. Again, the court must determine which right the plaintiff will exercise.

If the plaintiff will resort to this method, he must determine a compensation amount. This price must be equivalent to the benefit the plaintiff will receive if he wins the case.

If there is a fee difference between the two prices, this fee must be paid.

This method is generally used for well-intentioned gains.

This is the recommended method in cases where there will be no practical benefit for the plaintiff to continue the lawsuit against the transferor.

TRANSFER OF THE SUBJECT OF THE CASE TO A THIRD PARTY BY THE PLAINTIFF

This situation, which is generally encountered in detection and receivables cases, is stipulated in Article 125/2 of the Code of Civil Procedure. It is regulated in the article. In this case, the property is in the hands of the plaintiff. This procedure also applies in case of assignment of the receivable. An example decision is as follows:

"The plaintiff transferred his receivables in the file of the Enforcement Directorate out of the case. Accordingly, the plaintiff lost his status as a party (plaintiff) in terms of the aforementioned follow-up file with the assignment in question. In this case, the court determined whether the assignee of his receivables will continue the case, and if he gains the status of a party, the case should be continued; otherwise, the case should be rejected due to the lack of a party (plaintiff) status. However, establishing a verdict without taking this issue into consideration was not deemed correct and required reversal." Y3HD. 2020/1 E.

Since the plaintiff's transfer and the defendant's transfer are subject to different provisions, the defendant will not have the right to choose if the plaintiff transfers the subject matter of the case to a third party. Here, the third party transferee is included in the case with the same procedure and the trial continues. Previous transactions are not repeated and the case continues where it left off.

It is also possible to assign a part of the receivable and the same procedure applies in case of partial assignment. An example decision is as follows:

"A part of the receivable in question was assigned before the decision date, and although this assignment made during the trial is an assignment agreement in terms of substantive law, the result reflected in procedural law is the transfer of the subject of the case. In this case, since the assignee has replaced the plaintiff who transferred the assigned receivable, he must be notified as the plaintiff who transferred the subject of the case, and the formation of a party must be completed, and if there is a receivable, a judgment must be made for the transferred part for the transferred part. Although it is within the scope of the file. "Even though it was understood that the assignee of some of the receivables and the attorney of the plaintiff who assigned the claim were the same person, it was not correct for the court to decide to pay the entire price, including the transferred price, to the transferor, not to show the transferred person in the title of the decision and not to make a judgment about him." Y15HD. 2020/1061 K.

Since the new plaintiff replaces the old plaintiff, he is subject to the prohibition of changing and expanding the claim. He cannot give a second witness list and cannot apply for correction a second time. Statute of limitations cannot be invoked. However, personal defense reasons may be put forward. (For example swap def)