Article 341, paragraph two, of the Code of Civil Procedure (HMK) No. 6100 regulates the monetary certainty limit stipulated for appeal. In addition, according to Article 362/1-a of the HMK, it is not possible to appeal to the Supreme Court for decisions given in cases where the amount or value does not exceed forty thousand Turkish Lira (including this amount). When these provisions are considered together, it is clear that not every dispute concerning money can be subject to appeal or cassation review. In other words, for a case to be appealed, the monetary value of the case must exceed the certainty limits determined for the relevant appeal process. On the other hand, Article 1 of the Annex to the Code of Civil Procedure, titled “Increasing the Monetary Limit,” stipulates that the monetary limits foreseen in Articles 200, 201, 341, 362, and 369 shall be increased, effective from the beginning of each calendar year. Accordingly, the amounts applied in the previous year are taken as the basis; these amounts are increased and applied in accordance with the revaluation rate determined and announced by the Ministry of Finance pursuant to Article 298 of the Tax Procedure Law No. 213 dated 4/1/1961. In this context, our study will examine how the monetary certainty limits foreseen for appeal purposes are applied when the subject matter of the case is determined in foreign currency, based on the decision of the 6th Civil Chamber of the Court of Cassation, Case No: 2025/1175, Decision No: 2025/1821. In particular, the issue of which exchange rate date should be used in determining the monetary limits in such cases will be emphasized.
Supreme Court of Appeals, 6th Civil Chamber, Merits No: 2025/1175, Decision No: 2025/1821;
“Final decisions regarding cases where the amount or value does not exceed the appeal threshold are not subject to appeal pursuant to Article 362 of the Code of Civil Procedure No. 6100 (Law No. 6100/HMK). If the amount subject to appeal is below the threshold, the appeal petition should be rejected in accordance with Article 352/1-(b) of the said Law, by reference to Article 366 of the same Law. According to the case file, the total amount awarded, rejected, and appealed is 111,727.84 USD, which corresponds to 322,893,46 TL at the exchange rate on the date of the lawsuit, and 36,044.13 USD for the plaintiff, which corresponds to 104,167.54 TL at the exchange rate on the date of the lawsuit, and is below the finality threshold of 544,000,00 TL as of the date of the Regional Court of Appeal’s decision.”[1]
The examined decision specifically emphasizes that, pursuant to Article 362 of the Code of Civil Procedure No. 6100, final judgments concerning cases where the amount or value does not exceed the appeal threshold cannot be subject to appellate review. In this context, it is stated that if the monetary value subject to appeal falls below the determined threshold, the appeal petition should be rejected in accordance with Article 352/1-(b) of the Code of Civil Procedure, which is referenced through Article 366.
In the case at hand, the total amount of the claim subject to appeal, including the awarded and rejected claims, was converted to Turkish lira based on the exchange rate at the time of the lawsuit. The resulting amounts were found to be below the appeal threshold of 544,000 TL, which was in effect as of the date of the Regional Court of Appeal’s decision. Therefore, it was concluded that an appeal was not possible as the monetary threshold was not exceeded.
In this respect, the decision clearly demonstrates that in cases concerning claims denominated in foreign currency, the exchange rate at the time of the lawsuit is used to determine the finality limit for appeals when converting the foreign currency to Turkish lira. This decision also confirms once again that this approach directly affects the parties’ access to legal remedies. The dissenting opinion attached to the decision clearly sets out the core point of the dispute and the essence of the decision. According to this opinion, in cases filed based on claims or enforcement requests denominated in foreign currency, the question is how the value of the claim should be determined when the judgment is rendered in foreign currency. Specifically, it is stated that there is a difference of opinion regarding whether the Turkish lira equivalent of the foreign currency should be calculated based on the exchange rate at the time of the lawsuit or the exchange rate at the time of the decision.
The dissenting opinion specifically emphasizes that if the exchange rate at the time of the lawsuit is used, the right to appeal may be closed; however, if the exchange rate at the time of the decision is used, the right to appeal or cassation may be opened. Therefore, it has been stated that determining which exchange rate date will be used in cases concerning receivables denominated in foreign currency is of crucial importance in terms of the parties’ access to legal remedies.
The explanations in the dissenting opinion clearly illustrate the specifics of the case and the nature of the dispute. Accordingly, the plaintiff asserted their claim in foreign currency in their petition; the court also rendered its judgment ordering the collection of the debt in foreign currency. This situation reveals that the plaintiff’s claim relates to the performance of the foreign currency payment in kind. Indeed, when the creditor requests payment in kind, the debt must, as a rule, be fulfilled in foreign currency.
However, according to the third paragraph of Article 58 of the Enforcement and Bankruptcy Law, in enforcement proceedings concerning foreign currency claims, it is mandatory to clearly indicate the exchange rate on which the Turkish lira equivalent of the requested debt was determined. Requesting performance in foreign currency also gives the debtor a limited right of choice; the debtor has the option of paying the debt either in kind in foreign currency or in Turkish lira equivalent calculated based on the exchange rate on the actual payment date.
In this context, initiating enforcement proceedings in foreign currency does not necessarily require the actual collection of the foreign currency from the debtor and its delivery to the creditor. On the contrary, a creditor demanding payment in kind may also request the collection of the Turkish lira equivalent, determined based on the exchange rate on the actual payment date.
Indeed, this point is clearly established in the decision of the Supreme Court’s General Assembly of Civil Law dated April 7, 1993, numbered 13-41/145, which is referenced in the dissenting opinion. In that decision, it was determined that “By requesting payment in kind in Marks, the plaintiff has requested payment in Turkish lira according to the exchange rate on the actual payment date,” and it was explicitly stated that, within the framework of the provisions of the Enforcement and Bankruptcy Law, demanding payment in kind in foreign currency also includes payment in Turkish lira based on the exchange rate on the actual payment date.
In line with this approach, in cases where the creditor does not present their claim as an amount converted into Turkish lira using the exchange rate on the due date or the date of the lawsuit, the amount awarded is considered to be the foreign currency amount at the date of the judgment. However, the question of which exchange rate should be used to determine the threshold of finality in appeals concerning foreign currency claims has long been a subject of debate in both judicial decisions and legal doctrine.
In this context, one view in legal doctrine suggests that if a foreign currency claim appreciates in value on the date of the judgment, the threshold of certainty should be determined not by the exchange rate on the date of the lawsuit, but by the exchange rate valid on the date the court rendered its judgment. According to this view, the accurate determination of the true value of the claim and the possibility of access to legal remedies can only be achieved through this method.
Following an application for unification of jurisprudence within the framework of this debate, which directly affects the right to appeal, differing approaches have been observed among the chambers of the Supreme Court. Specifically, the 11th Civil Chamber and the now-closed 15th Civil Chamber of the Supreme Court have ruled that the exchange rate on the date of the lawsuit should be used; while the 9th, 12th, and the now-closed 23rd Civil Chambers of the Supreme Court have established precedents that the exchange rate on the date of the judgment should be considered. However, the First Presidency Board of the Supreme Court, on the grounds that this difference of opinion does not constitute a persistent inconsistency in jurisprudence, decided in its decision dated December 9, 2020, numbered 338, that there is no need for unification of jurisprudence.
In the dissenting opinion, it is stated that due to the constant fluctuation of foreign currency under a free floating exchange rate regime, it is necessary to base the calculation of the monetary certainty limits and attorney’s fees on the date of the judgment. It is particularly emphasized that this approach is both consistent with existing legal regulations and ensures the true and current value of the awarded claim. Furthermore, it is pointed out that during the enforcement of judgments concerning foreign currency claims through the enforcement office, the Turkish lira equivalent of the foreign currency on the date of the judgment should be used as the basis.
In this context, it is argued that, as in the dispute at hand, the criterion to be used for attorney’s fees, the appeal certainty limit, and court fees is the exchange rate of the foreign currency on the date of the judgment. Therefore, it is stated that the merits of the case should be examined, and the majority opinion rejecting the appeal request on the grounds of monetary certainty limits is opposed.
The majority opinion in the examined Supreme Court decision is that, in determining the monetary certainty threshold for appeal purposes in cases concerning foreign currency receivables, the Turkish lira equivalent of the foreign currency at the time of the lawsuit should be taken as the basis. According to this approach, the value of the claim determined at the time the lawsuit is filed is considered decisive in terms of access to appeal; disputes that fall below the certainty threshold as a result of calculations based on the exchange rate at the time of the lawsuit are not subject to appellate review.
In contrast, the dissenting opinion specifically emphasizes that foreign currency is subject to constant value fluctuation under a free floating exchange rate regime; it argues that basing the determination of monetary certainty limits and attorney fees on the date of the judgment is more consistent with both the purpose of the legal regulations and the true and current value of the claim awarded.
According to the dissenting opinion, considering that the Turkish lira equivalent of the foreign currency on the date of the judgment is also used in the enforcement phase of judgments concerning foreign currency claims, the exchange rate on the date of the decision should also be considered in terms of the appeal certainty limit and fees.
Therefore, the fundamental difference between the majority decision of the Supreme Court and the dissenting opinion focuses on which exchange rate date should be used in determining the monetary limits for appeal in foreign currency claims. While the majority opinion, by using the exchange rate on the date of the lawsuit, results in a result that restricts access to appeal; the dissenting opinion argues that by using the exchange rate on the date of the decision, both the current value of the claim and the possibility of appeal should be preserved.
[1] Supreme Court of Appeals, 6th Civil Chamber, Merits No: 2025/1175, Decision No: 2025/1821.