What is a waiver?

What is a Waiver? – Izmir Lawyer

Waiver is a procedural act that produces a final judgment. Simply put, a waiver is the plaintiff's declaration that they are abandoning their claims and demands in the lawsuit. A waiver can be made during the period from the filing of the lawsuit to the finalization of the judgment. With a waiver, it is possible to waive all the claims requested in the lawsuit petition, or only some of them. How is a Waiver Made? According to Article 319 of the Code of Civil Procedure, a waiver can be made in writing or orally. Oral waiver can only be made during the trial. Otherwise, all waivers must be in writing. A waiver takes effect upon the submission of the waiver petition to the relevant court or upon the oral declaration of waiver during the trial. It is important to note that the waiver must be unconditional. Waiver requests subject to any conditions will not be considered by the court. Therefore, it is important to obtain legal support during the waiver process. Through the UYAP system, parties, interested parties, and their representatives can send documents signed with a secure electronic signature to the relevant court or legal department. According to the Code of Civil Procedure (HMK) and its regulations, documents can be sent and all other transactions can be carried out via UYAP.

If we examine the legal regulations:

If the waiver occurs before the interim decision regarding the collection of evidence is fulfilled, half of the attorney's fee stipulated in the tariff shall be awarded against the plaintiff; if it occurs afterward, the full amount shall be awarded. (Attorney's Minimum Fee Tariff, Article 6)

Waiver occurs through a unilateral, explicit declaration of intent by the plaintiff addressed to the court. The consent of the opposing party or the court is not required for this. (Article 309/2)

The plaintiff may make this statement in writing or orally during the proceedings (hearing, inspection, etc.) (Article 309); this statement is recorded in the minutes, read aloud, and signed by the plaintiff. (Article 154/3-c)

An out-of-court waiver, not addressed to the court, is invalid if not accepted by the waiver. If the waiver is made by a lawyer, their power of attorney must explicitly authorize them to do so. (Article 74)

Waiver must be unconditional; conditional waiver is not valid. However, a conditional waiver may be considered a settlement offer. While a conditional waiver is not possible, waiving the claim in whole or in part is possible. (Article 307)

Exception to Waiver

Regulations regarding waiver of lawsuits are governed by Law No. 6100. Code of Civil Procedurein

‘Article 307 and subsequent articles are titled "Party Actions Ending the Case." As the wording of the article indicates, the right to waive a claim is granted to the plaintiff. As a rule, it is possible to declare a waiver in all cases. However, there are a few exceptions. An example of such an exception is compensation lawsuits filed against judges.

Consequences of Waiver of a Claim: Regulations regarding the consequences of waiver of a claim are found in Article 311 of the Code of Civil Procedure (HMK). According to this article, the court's decision following a declaration of waiver is considered final. The plaintiff who declares waiver is deemed to have lost the case, meaning a judgment has been rendered against them. As a result, they become liable for paying court costs. In the case of partial waiver, the court costs to be paid are subject to separate assessment for the partial portion of the waiver. Is it Possible to Withdraw from a Waiver? After the plaintiff has declared a waiver orally or in writing in accordance with the proper form, they cannot withdraw from this waiver. The plaintiff may claim that the waiver was made due to fraud, error, or coercion, and therefore wishes to withdraw from the waiver, by filing a separate "waiver termination lawsuit." With a complete waiver of the claim, the dispute between the parties ends. The plaintiff is considered to have waived their right to the merits of the case. Since the court's decision upon waiver is considered final, the plaintiff cannot reopen the same lawsuit. If the case is reopened, it will be dismissed on the grounds of res judicata.

Execution Costs in Case of Waiver of the Lawsuit

According to Article 22 of the Fees Law, a plaintiff who withdraws from a lawsuit will pay 2/3 of the judgment and decree fees. If the withdrawal is made before the execution of the interim decision regarding the collection of evidence, half of the attorney's fee determined by tariff will be awarded; if it is made afterwards, the full amount will be awarded.

You may also be interested in the following studies:;

Address: Nergis Neighborhood, Girne Boulevard No: 83, Floor 2, Apartment 2, Karşıyaka, İzmir

E-mail: info@efeshukuk.com

Phone: +90 534 415 52 56