Procedural capacity (dava ehliyeti)

Legal meaning

Persons who have the capacity to discern, are of full age and are not under guardianship (kısıtlı) have procedural capacity as a rule. For minors and persons under guardianship, the rules of legal representation apply; however, the exceptions for strictly personal rights that a person with the capacity to discern can exercise personally are reserved. The procedural capacity of legal entities is exercised by their competent organs.

Procedural capacity is a procedural prerequisite. Where a lack of capacity or representation can be remedied, a firm deadline is given for the deficiency to be completed, taking into account the special representation provisions to be applied (Articles 54 and 115 of the Code of Civil Procedure, HMK). However, the authority of the representative, conflicts of interest, the permission of the guardianship authority or the need for special permission must also be checked separately.

That a legal entity acts through its competent organ does not mean that it lacks procedural capacity. A legal entity that has the organs required under the law and its founding documents acquires capacity to act; it expresses its will through its organs (Articles 49–50 of the Turkish Civil Code, TMK).

Key elements and practical criteria

• It is connected with capacity to act.
• It is a procedural prerequisite.
• A person lacking procedural capacity performs procedural acts through a legal representative.
• Legal entities act through their competent organs.

Practical importance

The validity of acts performed on behalf of a person with a capacity or representation problem may become disputed. The competent representative must be determined carefully, particularly for minors, persons under guardianship, communities of heirs and companies.

Commonly confused concepts

• Capacity to be a party is the ability to be a party; procedural capacity is the ability to conduct procedural acts.
• Representation by an attorney differs from procedural capacity; a person who has procedural capacity may also pursue the case through a representative.

Practical example

In an action to be brought on behalf of a person under guardianship, it may be necessary for the guardian to act and, depending on the nature of the dispute, for permission to be obtained from the guardianship authority.

Frequently asked questions

Can a person without procedural capacity not bring an action?

The possibility of seeking justice is not removed; the action is conducted through the legal representative.

Who performs procedural acts on behalf of a company?

The competent organ or representative is determined according to the type of company, its articles of association and current representation records.