Enforcement for a Debt You Do Not Owe: Negative Declaratory Action and Action for Recovery of Payment (Enforcement Code Art. 72)

If enforcement proceedings have been started for a claim you do not consider yourself to owe, Article 72 of the Enforcement and Bankruptcy Code (İİK) provides two court actions: the negative declaratory action (menfi tespit davası) to establish that you are not a debtor, and the action for recovery of payment (istirdat davası) to get back money you paid although you did not owe it. This article summarises the basic rules of both.

1. The difference between the two actions

Action	Purpose	When?
Negative declaratory	Establishing that one is not a debtor	Before or during the enforcement proceeding (Art. 72/1)
Recovery of payment	Getting back money paid although it was not owed	Within one year from the date of payment (Art. 72/7)

For both actions, the competent court may be that of the place where the enforcement office conducting the proceeding is located, or that of the defendant's place of residence.

2. Stopping the proceeding: injunction

• In a negative declaratory action filed before the proceeding, the court may, on request, issue an injunction stopping the enforcement proceeding against security of not less than fifteen per cent of the claim (Art. 72/2). The 12th Civil Chamber of the Court of Cassation has stated this rule in the same way (E.2021/3099, K.2021/8182).
• In an action filed after the proceeding has begun, the proceeding cannot be stopped by injunction. However, against security of not less than fifteen per cent of the claim to cover losses caused by delay, the debtor may ask that the money in the enforcement office's cashier not be paid to the creditor (Art. 72/3).

3. Outcome of the action

• If it ends in the creditor's favour, the injunction lapses. Once the judgment becomes final, the creditor takes the loss from receiving the claim late out of the security; this loss cannot in any case be set at less than twenty per cent.
• If it ends in the debtor's favour, the proceeding stops immediately; when the judgment becomes final, enforcement is wholly or partly restored to its previous state.
• If the proceeding that forced the debtor to bring the action is found unjust and in bad faith, then on request the debtor's loss from the action is also recovered from the creditor. This loss cannot be less than twenty per cent of the claim in the unjust proceeding.

4. Conversion into an action for recovery on payment

If the debtor obtained no injunction in the negative declaratory action and the debt is paid, the action continues as an action for recovery of payment (Art. 72/6). According to a passage of the 25.01.2022 decision of the Court of Cassation's General Assembly of Civil Chambers quoted in a decision of its 3rd Civil Chamber, if the debt is paid during the action because no injunction was granted or it was lifted, the negative declaratory action by express provision of the law turns into an action for recovery, and neither amendment of claim nor the other party's consent is required (HGK, E.2019/3-536, K.2022/43; as quoted in 3rd Civil Chamber, E.2023/195, K.2023/1598).

The 15th Civil Chamber has also stated that the one-year forfeiture period in Art. 72/7 does not apply to this conversion (E.2016/1156, K.2016/2126).

5. Action for recovery and the one-year period

Under Art. 72/7, a person who has had to pay in full money they did not owe because they did not object to the proceeding, or their objection was lifted, may apply to court under the general provisions within one year from the date of payment to have the money returned. In the action for recovery the claimant need only prove that the money did not have to be paid.

6. Legal interest

Legal interest is a condition for admissibility of declaratory actions. In its decision of 19.02.2013 the 19th Civil Chamber said that legal interest is easier to establish in a negative declaratory action filed after the proceeding, and that where the creditor proceeds by the attachment route specific to bills of exchange, the debtor's complaint and objection do not as a rule stop the proceeding, so the debtor has legal interest in filing the action within the objection period (E.2012/17087, K.2013/3166). In an ordinary non-judgment proceeding by general attachment, the objection stops the proceeding, so legal interest is assessed according to the case.

For proceedings based on bills of exchange see the attachment route specific to bills of exchange, and for objecting to the proceeding and the action for annulment of the objection see objecting to enforcement proceedings.

7. What to do

• When you receive the payment order, note the date of service; the period for objecting and the option of a negative declaratory action should be considered together.
• If you have to pay under compulsion, document the date and reason for payment; the one-year period for recovery runs from the date of payment.
• Because an injunction requires security (at least fifteen per cent of the claim) and there is a risk of compensation, gather your evidence before filing.
• Depending on the type of dispute, procedural conditions such as mediation may also arise as conditions for filing.
• If you would like your file assessed, you can book an appointment or reach us on the contact page.

This article is prepared for general information and does not replace legal advice. Every file is different, and rights can be lost if time limits are missed.