Indefinite Claim and Partial Claim

Indefinite Claim and Partial Claim

Indefinite Claim

In cases where it is impossible to determine the exact and precise amount of the claim at the time of filing the lawsuit, the indefinite claim allows the plaintiff to file a claim by specifying a minimum amount of this legal relationship. Pursuant to Article 119/1-(ğ) of the CCP, the plaintiff must clearly state the result of the claim. However, there is an exception to this rule, and the “indefinite receivable action” regulated under Article 107 of the CCP constitutes this exception. In an indefinite claim action, if the plaintiff is unable to determine the amount of the claim with certainty, it is aimed to prevent the plaintiff from losing his/her rights and incurring high judicial expenses. In addition, the filing of an indefinite claim prevents the running of the statute of limitations on the claim and eliminates the risk of the plaintiff’s right to claim being time-barred.

In this way, the indefinite receivable lawsuit allows the statute of limitations to be suspended for the entire amount of the claimant’s claim, while preventing the claimant from losing his/her rights. The indefinite receivable lawsuit is asserted with a provisional claim result, and when the claim result becomes determinable, the missing fee is completed and turns into a final claim result.

“Article 107 – (1) In cases where it cannot be expected from the creditor to be able to determine the exact amount or value of the claim at the time of filing the lawsuit or where it is impossible to do so, the creditor may file an indefinite claim lawsuit by specifying the legal relationship and a minimum amount or value.

(2) As soon as it is possible to determine the exact amount or value of the claim as a result of the information provided by the other party or as a result of the investigation, the claimant may increase the claim stated at the beginning of the lawsuit without being subject to the prohibition of extension of the claim.

(3) In addition, in cases where a partial performance action may be filed, a declaratory action may also be filed, and in this case, legal interest shall be deemed to exist.”

Partial Claim

A partial lawsuit is a claim for a certain portion of the claim or right arising from the same legal relationship. It is regulated under Article 109 of the CCP, and a partial action may be filed not only in cases where the claim is clear, but also in cases where it is not indisputable and clearly determinable, provided that it is within the limits of the existence of legal interest and abuse of right.

“ARTICLE 109- (1) Where the subject matter of the claim is divisible in nature, only a part of it may also be asserted through litigation.

(3) The filing of a partial lawsuit shall not constitute a waiver of the remaining part of the subject matter of the claim, except where the remaining part of the subject matter of the claim is expressly waived at the time of filing the lawsuit.”

Differences between Partial Claim and Indefinite Claim

The most important difference between a partial lawsuit and an indefinite claim is the statute of limitations and the claim for interest.

• In an indefinite claim, the statute of limitations and limitation periods are suspended for the entire claim, whereas in a partial claim, the statute of limitations is suspended only for the part claimed.
• The other important difference relates to reformability. As a matter of fact, in an indefinite claim case, the creditor can increase the amount of the claim without being subject to the prohibition of the extension of any claim, whereas in a partial claim case, the creditor must amend the claim in order to increase the initial amount of the claim.
• In a partial lawsuit, the interest commencement date for the increased portion is the date of the amendment petition, whereas in an indefinite receivable lawsuit, the interest commencement date is the date of the lawsuit, that is, it is effective from the moment the interest receivable is defaulted.
• In addition, partial claims can be filed for divisible rights arising from the same legal relationship, while indefinite claims can only be filed for money receivables.

As a matter of fact, the Insurance Arbitration Committee in its decision dated 15.06.2021 and numbered 2021/6400 Decision

“…indefinite receivable lawsuit

Art. 107- (1) In cases where it is impossible or unlikely for the creditor to determine the exact amount or value of the claim at the time of filing the lawsuit, the creditor may file an indefinite claim by specifying the legal relationship and a minimum amount or value.” It is governed by the provision.

“…In that case, the claim for non-pecuniary damages cannot be filed as a partial or indefinite receivable lawsuit in violation of the indivisibility rule of non-pecuniary damages, and the determination of non-pecuniary damages cannot be requested through a lawsuit according to Article 107 of the CCP.In this case, the work to be done by the court should be decided as “dismissal of the plaintiff’s claim for non-pecuniary damages, without prejudice to the plaintiff’s right to file a separate lawsuit regarding the claim for non-pecuniary damages”, while deciding on the plaintiff accident victim’s claim for non-pecuniary damages and valuing the amendment petition in this respect was not found to be correct…” (Y21HD, 2018/2847E, 2019/4506K., 18.06.2019)

Since the claim for moral compensation cannot be divided due to its nature, it cannot be claimed as partial or indefinite receivable. The applicant filed an indefinite receivable lawsuit for 40.000.-TL non-pecuniary damages in the application form. In this case, since the claim for moral damages cannot be claimed as an indefinite receivable, it was necessary to decide to reject the application procedurally…”
 

It concerns the decision of the Insurance Arbitration Commission;

The lawsuit for moral damages is an indivisible claim due to its nature and therefore cannot be filed as an indefinite receivable lawsuit. According to Article 107 of the CCP, an indefinite claim lawsuit may be filed in cases where the amount of the claim cannot be determined, but this is not valid for moral damages. It is a procedural misapplication for the applicant to file an indefinite claim lawsuit for non-pecuniary damages. As a result, the application was dismissed on procedural grounds without a decision on the claim for non-pecuniary damages.

As a matter of fact, the Insurance Arbitration Committee in its decision dated 20.02.2022 and numbered 2022/8500 Decision;

“…Upon the notification of the increase petition to the defendant, the defendant’s attorney requested that the 2-year statute of limitations has expired in the amendment, and that the demands related to the amendment be decided to dismiss the unfair and unlawful lawsuit in the first place due to the statute of limitations, and to dismiss the request for advance interest since it is residential.

Since the application was requested as an indefinite receivable and the statute of limitations for indefinite receivables should be taken into consideration according to the date of the lawsuit, the defendant’s attorney’s objection to the statute of limitations regarding the increase was not deemed appropriate…”

It concerns the decision of the Insurance Arbitration Commission;

The defendant’s attorney stated that the statute of limitations had expired in the increase petition and that the demands made in the amendment were unlawful, and requested the dismissal of the lawsuit. However, since the application in question was requested as an indefinite receivable, the objection of the defendant’s counsel to the statute of limitations was rejected since the statute of limitations in indefinite receivable cases is calculated from the date of the lawsuit.

As a matter of fact, the Insurance Arbitration Committee in its decision dated 19.09.2024 and numbered 2024/467908 Decision;

“…The application was filed as a partial claim. In order to file a partial lawsuit

The subject matter of the claim must be divisible, and it is not necessary to clearly state in the statement of claim that the lawsuit filed is a partial lawsuit. If it is understood from the explanations in the lawsuit petition that the plaintiff’s receivable is more and a statement such as “reserving the rights regarding the excess” or “I am suing this much of the receivable for now” is included in the request section, this is considered sufficient for the acceptance of the lawsuit as a partial lawsuit. In the concrete dispute, it has been concluded that the creditor has an interest in filing a partial lawsuit since the receivable requested is divisible in nature. In the third paragraph of Article 109 of the CCP, it is explicitly stipulated that the failure to include a record regarding the reservation of the rights regarding the surplus when filing a lawsuit does not mean a waiver in terms of the part excluded from the lawsuit, and it is pointed out that silence on this issue will not eliminate the possibility of filing an additional lawsuit in the future. If the remaining part of the claim has been expressly waived while filing the lawsuit, in this case, since the claim has already been terminated due to the waiver, there will not be a claim that can be asserted through an additional lawsuit. For the aforementioned reasons, it has been decided to accept the application submitted by the applicant as a partial claim…”

It concerns the decision of the Insurance Arbitration Commission;

If it is stated in the petition that the entire receivable is not claimed and the right to more is reserved, this is considered as a partial lawsuit. Pursuant to Article 109 of the CCP, failure to reserve rights regarding the excess when filing a lawsuit does not eliminate the right to file an additional lawsuit in the future. However, if the claimed receivable is expressly waived, it is not possible to file an additional lawsuit. Consequently, the application is accepted as a partial claim.