Capacity to be a party (taraf ehliyeti)

Legal meaning

The personality of a natural person begins at the moment the child is born alive and fully, and ends with death. Provided that the child is born alive, the child acquires capacity to hold rights from the moment of conception (Article 28 of the Turkish Civil Code, TMK). The protection of rights concerning the unborn child (cenin) cannot be interpreted to mean that personality begins unconditionally before birth. Legal entities may be parties in accordance with the provisions on their formation and acquisition of legal personality. If a unit without legal personality is named as a party to an action, this gives rise to a procedural problem unless the law provides a special possibility.

Capacity to be a party is a procedural prerequisite (dava şartı). Where it is lacking or the wrong party is named, the court, depending on the nature of the problem, considers the provisions on representation, change of party or dismissal on procedural grounds. Not every misspelling of a name means that capacity to be a party is absent; a clerical error must be distinguished from the complete absence of the true party.

A simple company (adi ortaklık) as a rule has no legal personality; before an action is filed and conducted under the name of the company, the position of its members in the action must be determined according to the nature of the right or the debt. Where the wrong party was named because of an excusable mistake or an error that does not conflict with the principle of good faith, the possibility of a change of party under Article 124 of the Code of Civil Procedure (HMK) is examined separately.

Core elements and practical criteria

• It is linked to capacity to hold rights.
• Natural persons and legal entities may, as a rule, be parties.
• It has the nature of a procedural prerequisite.
• The position of structures without legal personality is examined under special laws.

Practical importance

Directing the action against a non-existent or wrong legal person may create serious problems with regard to notification, representation and enforcement of the judgment. Correctly identifying the party is particularly important in the case of trade names, branches, simple companies and public bodies.

Commonly confused concepts

• Capacity to be a party refers to the ability to be a party to an action; procedural capacity (dava ehliyeti) refers to a person’s ability to perform procedural acts validly in their own name.
• Party standing (taraf sıfatı) means being a party to the right or the debt under substantive law and is different from capacity to be a party.

Application example

If only a company’s brand name or branch has been named as the respondent, it should be examined whether the legal entity and its representation details have been correctly identified.

Frequently asked questions

Can a branch be a party to an action on its own?

As a rule, legal personality belongs to the company; however, no general conclusion should be drawn without examining the special provisions and the nature of the dispute.

Is the lack of capacity to be a party a dismissal on the merits?

No. Because capacity to be a party is a procedural prerequisite, the problem is assessed within the framework of procedural provisions.