Differences Between Withdrawing from a Lawsuit and Waiving a Lawsuit

Withdrawal from the lawsuit

A lawsuit is a dispute resolution method pursued by a person whose rights have been violated or endangered, aiming to obtain a definitive outcome by applying to the judicial organs of the state to protect their rights. However, the concepts of withdrawing from a lawsuit and waiving a lawsuit are often confused, whereas the differences between these two concepts are of great importance.

Withdrawal from a lawsuit (Article 123 of the Code of Civil Procedure), also known as revocation of a lawsuit, means that the plaintiff decides not to pursue the case, but does not waive their right. This allows the plaintiff to file a lawsuit again in the future based on the same right. The defendant's consent is required for the lawsuit to be withdrawn. With the defendant's consent, the lawsuit can be withdrawn at any time before the judgment becomes final.

Regarding the consequences of withdrawing from a lawsuit, the case is treated as if it had never been filed, and all consequences are retroactively eliminated. However, the right that was the subject of the lawsuit remains, therefore it is possible to file a lawsuit again in the future based on that right.

Supreme Court Decision Regarding Withdrawal of a Lawsuit (Revocation of Claim):

Turkish Supreme Court, 17th Civil Chamber, Case
No. 2015/12284, Decision
No. 2018/6018.

“…In this case, the court should state that the plaintiff’s statement in the previous lawsuit, when claiming compensation, cannot be considered as a waiver of the essence of the right, and that there is no question of renunciation, but only an intention to withdraw the lawsuit. In this context, it should be considered that the plaintiff has the right to file a new lawsuit for the same compensation claim since the plaintiff did not waive the essence of the right in the previous lawsuit. For these reasons, while the merits of the case should have been examined and an appropriate decision rendered, the judgment was given with erroneous assessment and reasoning, which necessitates reversal.”.

CONCLUSION: The appeal of the plaintiffs' attorney is ACCEPTED, the judgment is REVERSED, and the advance court fees paid are to be returned to the appealing plaintiffs. This decision was made unanimously on June 18, 2018.

Waiver of a claim (Article 307 of the Code of Civil Procedure)refers to a person voluntarily relinquishing a right that is the subject of a lawsuit. In this case, the person waiving the right definitively abandons it, and the right no longer exists. Waiver generally means the right that was the subject of the lawsuit is extinguished, and it will not be possible to file another lawsuit based on the same right in the future. Waiver is a unilateral declaration of intent and is valid without requiring the defendant's acceptance. However, the waiver must be expressed clearly and unequivocally and cannot be conditional. Waiver of a claim can be made at any stage until the judgment becomes final, and court costs may be awarded as a result of the waiver.

Supreme Court Decision Regarding Waiver of Claim:

Turkish Supreme Court, 11th Civil Chamber, Case
No. 2020/6301, Decision
No. 2021/2427.

“…Since waiver of a claim is a right that the parties can freely dispose of, it can be made until the judgment becomes final and is valid without requiring the consent of the opposing party. The statement of the plaintiff's attorney regarding the waiver of the claim is an action that terminates the case, and in accordance with Article 310/3 of the Code of Civil Procedure, the file should be returned to the first instance court without further examination, for an additional decision regarding the waiver, without any appellate review.”.

CONCLUSION: It was unanimously decided on March 15, 2021, that the case be returned WITHOUT EXAMINATION to the 12th Civil Chamber of the Istanbul Regional Court of Appeals, pursuant to Article 310/3 of the Code of Civil Procedure, for an additional decision regarding the waiver of the claim, and that the advance appeal fee paid be refunded to the appellant upon request