Ulgener

Unravelling the Legal Framework

To grasp the nuances of the Time Bar system in Turkish Law and explore the potential for parties to modify time bar periods through agreements, it is essential to first understand the distinctive dual framework, which diverges from the principles found in English Law.

Types of Time Bar Periods in Turkish Law

Turkish Law outlines two distinct types of time bar periods in legal statutes, namely; prescription periods and extinction periods. The differences between these two types of periods lie primarily in when they can be claimed during the trial phase and whether the judge would consider them ex officio.

a) Prescription Periods

The prescription period refers to the period during which a right ceases to be actionable after the expiration of the time specified in the law. The prescription period functions as a defense, the parties can raise an objection regarding the prescription period until the end of the preliminary examination stage. The judge can not initiate an ex officio investigation on this matter, also can not alert the parties about the prescription period, and does not have the right to remind them of its impending expiration. Failure by the defendant (debtor) to raise an objection regarding prescription period compels payment of a debt that could have been avoided due to being time-barred.

b) Extinction Periods

The concept of extinction period, is used for the periods in which the existence of the right ceases to exist after the expiration of the time specified in the law.

Extinction periods are generally envisaged in cases where a legal situation is desired to be resolved more quickly. Therefore, the extinction periods stipulated in the law do not cover very long periods of time.

The objection regarding the extinction period can be raised at any stage of the proceedings. Even if parties neglect to assert it, the judge must ex officio examine it and determine that the right launch a case ceases to exist if the extinction period has lapsed.

Modification of Time Bar Periods

Having clarified the types of the time bar periods in Turkish Law, the following review explores whether the parties can modify time bar periods and, if so, which of them can be modified.

In accordance with the principle of freedom of contract, which is one of the fundamental principles of Turkish Law of Obligations, individuals possess the right to form contracts as they see fit. However, this freedom is subject to some limitations imposed by law. Article 6 of the Turkish Commercial Code (“TCC”) stipulates that the statute of limitations governing commercial provisions may not be amended by contract unless expressly allowed by law.

To draw a comparison with English Law, the Limitation Act 1980 functions as the legal framework regulating time bars in English Law; however, commercial contracts typically reference specific conventions, rendering the 6-year limitation period outlined in this Act irrelevant. In other words, The Limitation Act 1980 in English Law does not apply if a different time frame is specified in the contract, or if another Act or Convention with a distinct time bar is incorporated into the contract. If the limitation period is referenced in a convention to which UK is a party of, the parties may or may not alter the limitation period to the extent permitted by that convention. (e.g. Hague-Visby Rules)

The modification prohibition regulated under Turkish Law applies to both extension and reduction of the time bar periods. The prohibition against extension of the time bar period aims to protect the defendant (debtor) and to prevent the courts from being overloaded with long-standing cases due to the potential extension of time bar through contract. The prohibition against reduction of time bar period through contract on the other hand, aims to prevent the claimant (creditor) from incurring losses and to protect against events that were unforeseen at the time of the conclusion of the contract.

There are some exceptions to the prohibition on modifying the time bars in Turkish Law as set out in article 6 of the TCC. The time bars for the claims which are specified in the law can be amended by the parties. The table below illustrates the time bars that can be modified through contractual agreement and those that can not:

Type of the Claim	Type of the Period	Regulation	Time Bar	Modifiability
Charter party or B/L claims including claims for freight and demurrage	Prescription period.	TCC Article 1246	1 year Commencing from the due date of the claim.	Can not be modified.
Claims against the carrier due to loss or damage to cargo	Extinction period	TCC Article 1188	1 year Commencing from the date of delivery.	Can be modified.
Recourse action with regards to claims due to loss or damage to cargo	Extinction period	TCC Article 1188 TCC Article 855	90 days Commencing from the date of payment to the claimant or from the notice received regarding the court/arbitration  case commenced against such party.	Can be modified.
Maritime liens	Extinction period	TCC Article1326	1 year Commencing from the creation of the obligation.	Can not be modified.
General average Contributions claims	Prescription period	TCC Article 1285	1 year Commencing from the time of unloading at the discharge port or at the port where the voyage ended.	Can not be modified.

Collision claims	Prescription period	TCC Article 1297	2 years Commencing from the occurrence of the collision.	Can not be modified.
Recourse action between the owners for collision claims	Prescription period	TCC Article 1297	1 year Commencing from the occurrence of the collision.	Can not be modified.
Salvage claims	Prescription period	TCC Article 1319	2 years Commencing from the completion of services.	Can be modified.
Wreck removal claims	Prescription period	TCC Article 1319	2 years Commencing from the completion of the removal services.	Can be modified.

Passenger injury or death claims	Prescription period	TCC Article 1270	10 years Commencing from the date of occurrence.	Can be modified.
Insurance claims	Prescription period	TCC Article 1420	2 years Commencing from the date on which the claim is due and in any case after 6 years from the date of the occurrence of the risk.	Can not be modified.
Liability insurance claims	Prescription period	TCC Article 1482	10 years Commencing from the date of the occurrence of the event.	Can not be modified.