The right of the agent to demand equalization is regulated in the 4th paragraph of Article 122 of the Turkish Commercial Code. In the event that the agency agreement is terminated for a reason other than the fault of the agent, it is envisaged as an equitable compensation in return for the retention of new and permanent customers created as a result of the agent’s efforts.
The conditions for claiming equalization are as follows:
Termination of the agency agreement for a reason other than the agent’s fault
The client will benefit from the customer environment created by the agent’s effort without paying any compensation
Equity requires equalization payment
In the event that these conditions are met, it is regulated that the agent’s right to equalize arises and this right must be asserted within one year in paragraph 4 of Article 122 of the Turkish Commercial Code.
Again, the statute of limitations for the claims arising from the agency agreement is regulated as five years.
WHAT IS THE QUALITY OF THE ONE YEAR PERIOD REGARDED IN PARAGRAPH 4 OF ARTICLE 122 OF THE TURKISH COMMERCIAL LAW?
The issue of the agent’s equalization request has been legally included in the Insurance Law Number 5684 for the first time in Turkish Law. However, Article 23 of the Insurance Law does not contain a provision on the subject of time. On the grounds that there is no regulation on the subject in the special law, it is of the opinion that it should be applied by analogy by referring to the general law, that is, article 122/4 of the Turkish Commercial Code.
According to the justification of paragraph 4 of Article 122 of the Turkish Commercial Code, “It is stated in the provision that the right to demand equalization must be asserted within one year following the termination of the contractual relationship. The question of whether this one-year period is a statute of limitations or a period of prescription is left open in the provision. The reason for this is that legal development opportunities are not blocked. Doctrine and judicial decisions should reveal the best solution in accordance with the balance of interests as “law”. In the German doctrine, the view that a one-year period is a period of prescription is dominant. The reason for this is the nature of the provision. Since the provision is based on justice, the agent does not feel such a need and puts forward its request delays for more than one year is considered contrary to the purpose of the provision. It is also claimed that the reasons for interrupting and stopping the statute of limitations are not compatible with the request. However, if the request is put forward and accepted, the period of prescription becomes inoperative. If the claim is objected to, it is necessary to apply to the court within a one-year period.”
The dominant view in the doctrine is that the one-year period is a period of prescription and this right can be asserted without being subject to a formal validity condition, and if the necessary notification is made within this period, the agent can file a lawsuit within the 5-year statute of limitations.
While the one-year period is evaluated by the Local Courts, it is seen that the cases of the agents were rejected on the grounds that this period is a prescribed period for “to file a lawsuit”, not “to assert the right”.
However, according to the Decisions of the Regional Courts of Justice, “Taking into account the fact that there is no mention of filing a lawsuit in the law, but a claim for compensation, it should be accepted that the 1-year period should not be understood as a period for filing a lawsuit, but as a time limit for the claim for compensation.”
It is accepted in the decisions of the Supreme Court that this request must be brought forward within 1 year, that this notification period is period of prescription, but the case can be filed within 5 years.