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LAW OF CIVIL PROCEDURE
289
(2) In the event that the amount of claim is undisputed by the parties,
or is clear, a partial action may not be filed.
(3) The partial lawsuit shall not be assumed as a waiver of the
remaining portion of the claim, unless the plaintiff explicitly
waives his rights while filing a lawsuit.
In the light of the said article, the economic benefits of filing a partial
action are eliminated, and the option to file a partial action is limited to
the cases in which the claim may be divided in respect of its nature, the
amount is disputed between the parties, or not clear. Therefore, the field
of application is now narrowed.
Accordingly, “the partial claim” is a claim in which the plaintiff does
not claim his receivables in full, but a certain part, and which may only
be exercised with regards to claims that may be divided. In the second
paragraph of Article 109, it is stated that in the event that the amount of claim
is undisputed by the parties, or is clearly determinable, it is not possible to
file a partial action. As a result, if there is not any controversy between the
parties about the amount of claim, or even if it there is controversy between
the parties concerning the amount, the amount can be easily established
and may be determined by anyone, a partial action may not be filed.
According to third subparagraph of the said article, one of the
biggest problems of the TCPC period is expected to be disappearing. The
application of High Court of Appeals resulting in waiver of the rights of
the plaintiff who has not reserved its rights while filing the lawsuit shall
finally find its implementation to its end. Consequently, even the rights
are not reserved; it shall be possible to file a new lawsuit for the rights
which are not reserved. The waiver for the not reserved part of the claim
may be valid only if the waiver has been explicitly made.
In case the amount of the claim is not definite, a “lawsuit for
indefinite claim” may be filed. Due to existence of this new institution,
the necessity to file a partial action shall not be valid in scope of New
TCPC. Accordingly, the libel suits, which cannot be filed as a partial
action could be filed as a lawsuit for an unspecified claim.
In the case where a lawsuit for unspecified claim may be filed,
filing a partial action shall not be feasible. Because, the part of the claim