Understanding the Risks of Losing Rights Through Silence in Legal Claims

'My statute of limitations is five years. Since three years have already passed, I can wait another two years.' You may be justified in thinking this way, but you might be surprised when you find yourself in front of a judge and are told that remaining silent has led to a loss of rights.

How has the right holder behaved during the waiting period? Have they given the other party confidence that they would not exercise their rights, leading them to organize their affairs based on this assurance?

Because the law does not only look at the calendar regarding the statute of limitations. It examines what the parties have said to each other, what they have done, and sometimes under what circumstances they have remained silent. Just because the statute of limitations has not expired does not mean that a right will be protected under all circumstances. At the core of this is the principle of good faith found in Article 2 of the Turkish Civil Code and the prohibition of abuse of rights.

However, let us clarify: We cannot say that everyone who remains silent has lost their rights. Not everyone who delays has acted contrary to the principle of good faith. The issue is not so much the duration of silence, but rather the characteristics of the relationship in which it occurs and the legal trust it creates.

Foundation of good faith and legitimate trust

Article 2 of the Turkish Civil Code states:

'Everyone must comply with the rules of good faith while exercising their rights and fulfilling their obligations. The legal order does not protect the explicit abuse of a right.'

In everyday language, this can be referred to as 'protection of good faith.' However, it is also necessary to place legal concepts in their proper context. While Article 2 of the TCC regulates the principle of good faith as an objective standard of behavior, Article 3 technically regulates good faith. The fundamental issue here is not just what a person knows or does not know, but whether their subsequent claim can be considered honest in light of their previous behavior.

The practical implication of this distinction is as follows. If a person has created legitimate trust in the other party that a certain practice will continue through their behavior, they may not benefit from the protection of the legal order if they later adopt an attitude that undermines that trust. The Court of Cassation evaluates this issue, especially in ongoing commercial relationships, within the framework of the prohibition of contradictory behavior.

Does the five-year statute of limitations reduce to three years?

No. The loss of rights through silence does not mean that the judge shortens the legal statute of limitations.

The statute of limitations provides the debtor with a defense against performance after the period specified in the law has passed. It does not automatically eliminate the debt. The judge cannot consider the statute of limitations on their own (ex officio) unless it is raised (TCC Article 161). In the case of loss of rights through silence, a different question arises: Even if the time has not expired, does asserting the right under these conditions conform to the principle of good faith?

Thus, a claim that is presumed to be subject to a five-year statute of limitations cannot be rejected simply because it is asserted in the third year. Conversely, if the behaviors accompanying the silence have created a trust worthy of protection in the other party, the claim may exceptionally encounter the obstacle of Article 2 of the TCC. This is not a change in the calculation of time but rather a scrutiny of the exercise of the right.

For example, a person who waits for the right time to demand their debt is not in the same situation as someone who gives the other party confidence that they will not enforce a specific contractual provision and continues the commercial relationship with this understanding. In the first case, waiting is acceptable; in the second case, the legal appearance created alongside the waiting should be discussed.

Therefore, the question of how many years one remained silent is insufficient on its own. What did they know, why did they remain silent, how did the other party justifiably interpret this behavior, and how did they organize their relationship accordingly? The real examination should focus on these questions.

Franchise agreements

One of the clear examples of this issue is the decision of the General Assembly of the Court of Cassation dated January 30, 2013, E. 2012/19-670, K. 2013/171.

The fuel distributor indicated that they wanted to continue the relationship on the condition that the minimum purchase and the associated penalty clause requested from them would not be enforced. The distribution company did not oppose this notification. The commercial relationship continued for another nine years. After the relationship ended, a penalty clause for past periods was requested.

The General Assembly of the Court of Cassation accepted that the company's silence, along with its ongoing behavior, created legitimate trust in the distributor, and that later requesting the penalty clause contradicted this trust. Here, what is decisive is not the mere passage of nine years but the expectations created in the other party during that time.

The decision of the General Assembly of the Court of Cassation dated October 14, 2021, E. 2017/(19)11-3083, K. 2021/1225 also carries a similar approach. The distributor purchased less LPG than they had committed to throughout the contract. Nevertheless, the distribution company continued to provide the product and accepted payments without reservation. The Assembly did not find it worthy of protection to request the penalty clause after the contract ended, which contradicted the legitimate trust that had been established.

In connection with this, but with a special provision that must be considered separately, is another decision of the General Assembly of the Court of Cassation dated June 21, 2022, E. 2019/(19)11-775, K. 2022/962. The Assembly emphasized the importance of reserving the right with a reservation (conditional registration) when the penalty clause is added to the performance in the specific case. In this evaluation, TCC Article 179/2 is significant. Therefore, it is not correct to reduce every penalty clause dispute to a general 'silence' formula. The type of penalty and the content of the contract should also be examined.

What is written in the contract is important

When reading the decisions of the Court of Cassation, selecting only examples that accept the loss of rights can create an incomplete picture.

The decision of the General Assembly of the Court of Cassation dated May 31, 2023, E. 2022/414, K. 2023/536 is noteworthy in this regard. The contract clearly states that failure to exercise rights in a timely manner does not mean waiving them and that they can be exercised within legal periods. The Assembly accepted that the lack of a request for a penalty clause each year could not be considered a tacit waiver, emphasizing the specific contractual provision. It also stated that the delivery of new goods does not mean that the contract has been materially changed.

When this decision is read together with the 2022 decision, an important warning emerges: Reservations, the retention of rights, and the effects of subsequent behaviors cannot be separated from the contract and the specific case. An automatic result applicable to all commercial relationships should not be produced based solely on the title of a decision.

In my opinion, the correct approach is neither to disregard every record in the contract nor to grant unlimited power that trivializes all subsequent behaviors. The contract text, the parties' correspondence, and actual practice should be evaluated together. Legal security requires this.

Can a malicious actor rely on another's silence?

The purpose of loss of rights through silence is to protect legitimate trust. This institution cannot be used as a refuge for those who wish to unjustly benefit from another's rights.

The decision of the General Assembly of the Court of Cassation dated June 17, 2021, E. 2021/456, K. 2021/776 illustrates this boundary in a trade name dispute. A company that previously had a partnership and management relationship with the plaintiff company took over a company that adopted the same distinguishing mark in its trade name and began operating in the same building. The Assembly did not find this behavior, which aimed to unjustly benefit from the reputation of the previous company, to be in good faith. It accepted that a conclusion of loss of rights due to silence could not be reached.

This case also has an important procedural history. The approval decision of the General Assembly of the Court of Cassation dated December 9, 2020, E. 2020/11-532, K. 2020/1011 was overturned in the review of the decision correction dated June 17, 2021. Therefore, using the 2020 decision as a finalized precedent without indicating subsequent developments may be misleading.

The lesson to be drawn from this is clear. What is protected is not every expectation, but legitimate expectations. Hoping that one’s own unlawful behavior will continue does not, on its own, create a trust that will be protected.

Silence itself must also be proven

The decision of the General Assembly of the Court of Cassation dated December 10, 2025, E. 2024/11-376, K. 2025/798 demonstrates how concrete the examination must be.

In a dispute over trademark infringement and unfair competition, tax plates, invoices, and audit documents were submitted. However, the Assembly did not find these documents sufficient to prove the use of the trade name, the beginning of the disputed trademark use, and how long the silence lasted. It did not find it appropriate to conclude a loss of rights without clarifying the beginning of use, the duration, and the nature of silence.

In the same decision, it was stated that if this situation based on TCC Article 2 emerges from the file, it should be considered by the judge ex officio. In this respect, it differs from the defense of the statute of limitations. However, making a legal assessment ex officio does not mean assuming unproven events.

The statute of limitations period specifically defined by law is another matter.

There is a separate regulation in trademark law. Article 25/6 of the Industrial Property Law No. 6769 states that if the trademark owner who knows or should know that a later dated trademark is being used remains silent for five consecutive years, they cannot assert their own trademark as a ground for invalidity unless the subsequent registration is made in bad faith.

The five years here is not an ordinary statute of limitations for a claim. It is the period of silence specifically required by law for a certain claim of invalidity. This provision should not lead to the conclusion that the judge can reduce the five years to three. It is necessary to avoid confusing the application of general good faith scrutiny with the specific legal regulation.

TCC Article 2 also scrutinizes the statute of limitations defense

The principle of good faith does not apply only to the creditor. The debtor is not exempt from it either.

In the reasoning of the decision of the General Assembly of the Court of Cassation dated April 22, 2022, E. 2021/7, K. 2022/2, it is explicitly stated that the party raising the statute of limitations defense should not use this right in a manner contrary to the principle of good faith. The main subject of the decision is the commencement of the statute of limitations for deposit claims transferred to offshore accounts. However, this general principle in the reasoning also indicates that the right of defense cannot be abused.

Let’s give a hypothetical example. The debtor has kept the creditor waiting by saying, 'I will pay my debt,' creating a serious trust that there is no need to resort to legal action. Then, they raise the statute of limitations defense based on the elapsed time during this waiting period. Here, it should be discussed not only whether the time has expired but also the effect of the trust created by the debtor's actions in causing the delay. However, not every promise to pay automatically constitutes abuse. The characteristics of the case are decisive.

A more concrete example is the acknowledgment of debt after the statute of limitations has expired. In the reasoning of the decision of the 9th Civil Chamber of the Court of Cassation dated June 3, 2015, E. 2014/4919, K. 2015/20286, it was explained that a person who acknowledges their debt after the time has expired would create a contradictory behavior if they then sought to rely on the statute of limitations in a lawsuit based on that acknowledgment. The Chamber also refers to the decision of the General Assembly of the Court of Cassation dated February 23, 2000, E. 2000/15-71, K. 2000/116 for this principle. Here, the acknowledgment of debt is also evaluated as a tacit waiver of the statute of limitations defense.

Thus, the two-way effect of TCC Article 2 becomes apparent. A claim made before the expiration of the time may not be protected. A statute of limitations defense raised after the time has expired may also not be protected. In both cases, the issue is not about rewriting the calendar but about scrutinizing whether the right or defense has been used honestly.

Lessons to be drawn from maritime commerce

Let’s consider these principles through a hypothetical relationship related to maritime commerce.

Let’s assume there is a contract between a terminal operator and a carrier that includes an annual minimum business volume (amount of cargo to be handled) commitment. The contract provides for a penalty clause related to the shortfall for each year below the commitment. Let’s also assume that this claim is subject to a five-year statute of limitations. At the end of the first year, the commitment has not been fulfilled, and a penalty claim has arisen. Nevertheless, the terminal operator has not requested the penalty. They have continued to provide the service uninterrupted, closed the period accounts without reservation, and given the impression in their correspondence that the penalty was not on the agenda. The carrier has undertaken new period commitments relying on this understanding. What happens if the terminal operator requests all past penalty clauses in the fourth year, before the statute of limitations has expired? The court may reject this request based on TCC Article 2, arguing that it contradicts the legitimate trust created by the behaviors, even though the time has not expired. As can be seen, the basis for the rejection is not the time itself, but the trust created in the other party by the behaviors accompanying the silence.

Conversely, if the rights have been explicitly reserved in the contract and this attitude has been maintained through periodic notifications, it may be more difficult to assert the same claim of trust. As shown by the franchise decisions, the contract text must be read together with actual practice. This example does not mean that all claims in maritime commerce are subject to the same time or rule.

There is also an important distinction in practice: A notice reserving rights is not the same as an act that interrupts the statute of limitations. A unilateral notice from the creditor does not, as a rule, interrupt the statute of limitations on its own. The reasons for interruption (such as acknowledgment of debt, filing a lawsuit, enforcement proceedings) are separately regulated in TCC Article 154. A notice may prevent the formation of trust in the other party that 'it will no longer be claimed.' However, it should not be assumed that the statute of limitations period is necessarily protected by this.

Not every silence is acceptable

In my opinion, the balance that needs to be protected in this area is clear. On one side is the right holder who acts based on the time allowed by law, and on the other side is the person who justifiably trusts their actions.

If the principle of good faith becomes a tool that arbitrarily nullifies legal periods, legal security is compromised. However, if the legal period is used as an excuse to undermine the trust created by previous behaviors, then good faith is harmed.

Therefore, the issue cannot be resolved with the simplicity of 'You were silent, you lost your right.' The question that should be asked is:

'What legitimate trust did you create in the other party with your actions, and does the claim you are now asserting align with that trust?'

The essence of loss of rights through silence is this. The law does not consider every silence as consent. However, it is not obliged to protect a contradictory claim that follows silence that has created legitimate trust simply by presenting a calendar.

Source: SeaNews Türkiye