Preclusive period (hak düşürücü süre)

Scope

A preclusive period mostly limits the exercise of rights that alter or terminate a legal relationship (such as annulment, termination and pre-emption) and of certain rights of action. Statutes usually express these periods with phrases such as “lapses” or “within the preclusive period.” For example, the right to bring an action for annulment of a marriage lapses six months after the date on which the ground for annulment was learned of or the effect of duress ceased, and in any event five years after the marriage (Turkish Civil Code (TMK) Art. 152); in a collective company (kolektif şirket), a member who is removed from the company by decision of the other members may also bring an action to set aside the removal within a three-month preclusive period from the notarial service of the decision (Turkish Commercial Code (TTK) Art. 255/2). If a statute does not expressly state the nature of a period, it is determined by scholarship and case law.

Practical significance

Once the period has passed, the right has ended and can no longer be exercised; an action brought on the strength of that right is also dismissed, because a preclusive period is not a procedural prerequisite but a limit under substantive law. After the preliminary examination is completed and before the investigation stage begins, the judge rules on objections and defenses relating to preclusive periods and the statute of limitations (Code of Civil Procedure (HMK) Art. 142). As accepted in scholarship and practice, these periods are in principle neither interrupted nor suspended; however, a statute may provide exceptions: in mediation as a condition precedent to litigation, the preclusive period does not run from the application until the final record (Law No. 6325, Art. 18/A). If an action has been dismissed for lack of subject-matter jurisdiction, lack of territorial jurisdiction or a correctable error, and the period has meanwhile expired, an additional period of sixty days is granted (Turkish Code of Obligations (TBK) Art. 158).

Concepts often confused

A preclusive period is most often confused with the statute of limitations. In private law, when the statute of limitations expires the claim does not disappear; the debtor may refuse performance by invoking the statute of limitations, whereas the judge cannot consider it ex officio (TBK Art. 161); the statute of limitations is also suspended or interrupted for the reasons listed in the law (Arts. 153–154). In a preclusive period, by contrast, the right itself ends, the period is observed ex officio, and as a rule there is no suspension or interruption.