Limitation in Enforcement Proceedings — Periods, Objection and Lapse

What are the limitation periods in enforcement proceedings and how are they calculated? Learn about İİK Art. 33/a, the limitation periods in the Code of Obligations, interruption of limitation by an enforcement step, the plea of limitation and examination of the court's own motion.

Limitation is a legal institution enabling a debtor to refuse payment where a claim has not been pursued for a certain period. In enforcement law, limitation is a critical element directly affecting both the period within which the creditor may commence proceedings and the periods for taking steps within ongoing proceedings. Article 33/a of the Enforcement and Bankruptcy Law No. 2004 (İİK) specifically governs limitation in enforcement based on a judgment, while in enforcement without a judgment limitation is determined under the Turkish Code of Obligations No. 6098 (TBK) and the Turkish Commercial Code No. 6102 (TTK). This article examines comprehensively the limitation periods in enforcement proceedings, the interruption and suspension of limitation, avenues of objection and the problems encountered in practice.

The Concept of Limitation and Its Place in Enforcement Law

Limitation is an institution of substantive law giving the debtor a defence where a claim is not asserted within a certain period. The expiry of the limitation period does not extinguish the claim; it merely gives the debtor the ability to refuse payment. If the debtor does not raise the plea of limitation, the creditor may collect the claim even though the period has expired.

Limitation arises in enforcement law in two distinct dimensions. The first is the limitation period before proceedings are commenced; at that stage it is assessed whether the claim has become time-barred. The second is limitation within the proceedings after they have been commenced; limitation may arise where the parties fail to take steps within certain periods at any stage. Limitation differs from a forfeiture period. A forfeiture period extinguishes the right itself upon expiry and is taken into account by the court of its own motion. Limitation, by contrast, depends on the debtor raising it; neither the court nor the enforcement office may take it into account of its own motion. There are exceptions to this rule, however, and they are addressed in detail below.

What Are the Limitation Periods in Enforcement Without a Judgment?

Limitation is determined by the legal basis of the claim. TBK Art. 146 sets a general period of ten years; Art. 147 sets five years for rent, periodic obligations and certain claims listed in the article. In employment claims, a five-year period applies to wages and to the compensation and leave claims listed in Additional Art. 3 of the Labour Law; not all labour law claims are subject to a single provision. Special periods apply to negotiable instrument, consumer, tax and other special claims.

How Does Limitation Apply in Enforcement Based on a Judgment?

Under İİK Art. 39, enforcement based on a judgment is subject to a ten-year limitation period running from the last step taken; for judgments enforceable before becoming final the starting point is not always the date of finality. TBK Art. 156/2 governs the new period for a claim established by a judgment or an admission of debt. Accumulated instalments of alimony, rent and other periodic obligations are examined separately by reference to their maturity dates and the special five-year periods.

What Is Interruption of Limitation and Which Acts Interrupt It?

Interruption of limitation means that the limitation period is reset by a particular act or event and begins to run afresh. The grounds interrupting limitation are listed in TBK Art. 154.

The debtor's admission of the debt: the debtor's oral or written acknowledgment of the debt, payment of interest or an instalment, or the provision of security, interrupts limitation. Admission of the debt is the most common ground of interruption.

The creditor asserting the right by action or defence: the creditor bringing an action, asserting the claim by counterclaim, or raising it as a defence in an action, interrupts limitation.

The creditor commencing enforcement proceedings: the creditor commencing enforcement proceedings or applying to the bankruptcy estate interrupts limitation (TBK Art. 154/2). After interruption the new period is as a rule the same as the previous one; where the claim has been admitted by a deed or determined by a court or arbitral award, the new period is ten years under TBK Art. 156/2. Future periodic obligations and special provisions are assessed separately.

For limitation to be interrupted again after proceedings have begun, there must be a genuine enforcement step by which the creditor advances the claim through compulsory execution. A request for attachment or sale may be such a step. It cannot be generalised that a renewal petition filed after a file has been struck off interrupts limitation without containing any other enforcement step; the content of the act and the special provision applicable to the claim are examined.

What Is Suspension of Limitation and When Does It Apply?

The grounds of suspension are exhaustively listed in TBK Art. 153: relationships of parental authority and guardianship, marriage, an employment relationship, usufruct, the impossibility of asserting the claim before the Turkish courts, and the other cases in the statute. Not every event of force majeure automatically suspends limitation; the relevant subparagraph may be considered where the event genuinely makes it impossible to assert the claim before the Turkish courts.

How Is the Plea of Limitation Raised in Enforcement Proceedings?

In enforcement without a judgment, limitation is raised in the seven-day objection to the payment order. In negotiable instrument proceedings, application is made to the enforcement court within five days. In enforcement based on a judgment, limitation arising after the judgment is raised under İİK Art. 33/a, and other allegations of discharge or deferral within the framework of Art. 33, in time and according to the service of the act. There is no general rule that “limitation may be raised at any time in enforcement based on a judgment”.

Is Limitation Examined of the Court's Own Motion?

Limitation is as a rule not examined of the court's own motion; the debtor must raise the plea. This rule applies both in substantive law and in enforcement law. Where the debtor does not raise the plea of limitation, the enforcement office, the enforcement court and the general courts may not take limitation into account of their own motion.

For public claims, the collection limitation regime in Art. 102 et seq. of Law No. 6183 differs from limitation for private law claims. The steps to be taken by the collecting office, the grounds interrupting or suspending the period, and the consequences of write-off are determined separately under the current provisions of Law No. 6183.

Secondly, when examining a debtor's plea of limitation in enforcement based on a judgment, the enforcement court itself calculates and assesses whether the limitation period has expired. That calculation of the period by the enforcement court should not be confused with examination of the court's own motion; the enforcement court assesses the period only upon the debtor's objection.

Where a tort also constitutes an offence subject to a longer limitation period for prosecution, the longer period in TBK Art. 72/1 may apply. Its application is likewise examined by reference to the specific act, the criminal provision and a properly raised plea of limitation; it cannot be said that the court will apply the criminal limitation period of its own motion for all torts.

The Relationship Between the Striking Off of an Enforcement File and Limitation

Allowing the one-year period for requesting attachment in İİK Art. 78 to expire causes the file to be struck off; neither the proceedings nor the substantive claim lapses automatically. The file may be reactivated by a renewal request and payment of the fee. Whether a renewal petition alone interrupts limitation is assessed on the facts, by reference to whether the creditor has taken a genuine enforcement step and directed it at the debtor; it should be said neither that it “always interrupts” nor that it “never interrupts”.

What Are the Consequences If a Plea of Limitation Is Accepted?

The consequence varies according to the type of proceedings. In general enforcement without a judgment, a timely objection halts the proceedings; the creditor may seek annulment or removal of the objection. In negotiable instrument and judgment-based proceedings, the enforcement court decides on the halting, annulment or stay of the proceedings under the special provisions. Limitation does not extinguish the debt; it gives the debtor a defence. The effect of the enforcement court's decision before the general courts is determined by whether the decision involved an examination of substantive law and by its res judicata effect.

Points to Bear in Mind in Practice

The period cannot be calculated without correctly identifying the legal basis of the claim and the date on which it fell due. A partial payment, a payment of interest or an express admission of debt may give rise to interruption under TBK Art. 154; an action or enforcement application by the creditor also interrupts the period on the statutory conditions. Not every internal step in an enforcement file is a ground of interruption; a genuine enforcement step directed at the debtor, and the type of proceedings, must be examined.

In general enforcement without a judgment, if limitation is not raised in a timely objection to the payment order, the proceedings become final; whether a substantive defence may later be deployed by way of a negative declaratory or restitution action or another route depends on the specific circumstances. In negotiable instrument proceedings the five-day period applies; in judgment-based proceedings the special period, documentary regime and last-step rules in İİK Arts. 33 and 33/a apply. There is no unlimited rule that limitation may be raised “at any time” in judgment-based proceedings.

The striking off of an enforcement file does not extinguish the claim. Renewal, the periods for requesting sale and attachment, and the substantive limitation of the claim must be calculated separately. Since an error as to the period or the forum may directly cause loss of rights, service, maturity and the last enforcement step must be established from the documents in every file.

Frequently Asked Questions

Does the period in judgment-based proceedings always run from finality?

No. Judgments enforceable before becoming final and the last enforcement step are taken into account.

Are all periodic instalments subject to ten years?

No. The maturity of each instalment and the special five-year period may be assessed.

Does the striking off of a file extinguish the debt?

No; renewal and limitation are separate institutions.

Does every event of force majeure suspend the period?

No; the exhaustive grounds of suspension in TBK Art. 153 are required.