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LAW OF CIVIL PROCEDURE
281
Legal Actions for Unspecified Claim Amounts
2
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Att. Süleyman Sevinç
As mentioned in our recent Newsletter dated May 2010 entitled
“Partial Claim Cases”, the right to file a partial claim case was recognized
by a benchmark Constitutional Court Decision of July 20, 1999, numbered
1999/1 E. and 1999/3 K., which was published in the Official Gazette of
4 November 2000, repealing the last sentence of Article 87 of the Code
of Civil Procedure which had stated the phrase “claimant cannot increase
the statement of a claim by modification”.
It is widely known fact that the claimant may claim his rights which
are preserved, in a partial claim suit by filing an additional lawsuit, or
by taking the advantage of the above mentioned repeal of the Article
87 by the Constitutional Court Decision and raise his claim in the same
lawsuit by filing a partial modification petition provided that he pays the
proportional fees. The partial case can be defined as; suing for a partial
amount of a claim while preserving the other or remaining amount of
the claim for a later date for some reason and then if the circumstances
emerge, claim the previously preserved rights by virtue of modifying the
ongoing litigation by broadening its scope without filing a new litigation.
The Claimant files a partial claim case by preserving his rights of
surplus amount. In practice, in terms of litigation technique, “preserving
the rights of surplus” means taking a legal action for a claim to recover,
compensate or indemnify partial amount of a claim, which is entirely
infringed or contested by the defendant, and postponing the right of action
or right to claim other remaining part for a later stage for some reason.
The rationale behind the partial claim case is to keep the court
fees minimized. It is reasonable to expect that the claimant might not
want to pay court fee in full in the initial stage of the litigation to avoid
large amount of costs for an action in which the claimant is uncertain
about. With the partial claim action, the claimant may have a chance to
observe the trial period of the litigation and see whether he can make
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Article of April 2011