What Is “Munzam Zarar”?
“Munzam zarar,” translated as “excess damages,” refers to the portion of a creditor’s loss that is not fully compensated by the legal or contractual default interest when a monetary debt is not paid on time. It is regulated under Article 122 of the Turkish Code of Obligations (TBK) and applies only to monetary obligations.
According to TBK Article 122:
“If the creditor suffers damage exceeding the default interest, the debtor is obliged to compensate such loss unless they prove the absence of any fault.”
This provision introduces fault-based liability distinct from the automatic nature of default interest under Article 120 TBK.
Key Conditions for Claiming Munzam Zarar
To succeed in a claim for excess damages, five cumulative conditions must be met:
Existence of a Monetary Obligation:
Munzam zarar can only be claimed for monetary debts, regardless of whether they arise from contract, tort, unjust enrichment, or unauthorized agency.Debtor’s Delay (Temerrüt):
The debtor must have fallen into default. If the due date is contractually fixed, no formal notice is needed for default. Otherwise, the creditor must serve a proper notice (ihtar).Damage Exceeding Default Interest:
The creditor must have suffered a loss greater than the default interest. Not every delay results in munzam zarar; the burden is on the creditor to prove that the default interest alone is insufficient.Debtor's Fault:
The debtor is presumed at fault. To avoid liability, the debtor must prove the absence of fault, such as force majeure or errors beyond their control.Causal Link (İlliyet Bağı):
A clear causal relationship must exist between the default and the claimed loss. General economic downturns or inflation alone are not sufficient.
Legal Nature of Default Interest vs. Excess Damages
Default Interest (Temerrüt Faizi):
Automatically applies upon default. The creditor does not need to prove damage or fault.Excess Damages (Munzam Zarar):
Requires proof of specific harm beyond the interest and depends on the debtor’s fault.
Evidentiary Burden and Changing Jurisprudence
Traditionally, the creditor was strictly required to prove excess damages with concrete evidence, such as:
Higher interest paid on substitute loans.
Missed business opportunities.
Penalties paid due to late payments.
Currency or inflation-related devaluation of receivables.
Key Court of Cassation Decision
In the Yargıtay 19th Civil Chamber (2018/1690 E., 2019/2185 K.), the court rejected an excess damages claim because the creditor only cited general inflation and market increases, without showing a personal, specific loss beyond what was covered by default interest.
“Inflation or currency devaluation alone cannot prove excess damages. The creditor must demonstrate the harm they specifically incurred.”
A Shift: Constitutional Court Ruling & New Precedents
The 2017 Constitutional Court Decision (2014/2267) marked a turning point. It recognized that during high inflation periods, delayed payments may violate the creditor’s property rights:
“Inflation significantly erodes purchasing power. A creditor deprived of interest-bearing use of their funds suffers a property loss.”
Following this, Yargıtay 15th Civil Chamber (2017/2736 E., 2018/1742 K.) adopted a softer evidentiary standard:
Courts should obtain official data (inflation, interest, exchange rates).
Experts must prepare a composite “basket” report.
The claim does not need to be proven with specific business records in every case if macroeconomic data support loss.
Economic Indicators Used in Assessing Munzam Zarar
Courts may now evaluate excess damage claims based on:
Annual TÜFE/TEFE inflation rates
Interest rates for bank deposits and government bonds
USD/EUR exchange rates
Gold prices
Minimum wage increases
Investment returns on equivalent assets
These data are used to simulate the loss of purchasing power or missed investment opportunities.
Somut vs. Soyut Yöntem (Concrete vs. Abstract Proof)
Somut Yöntem:
The creditor presents concrete proof (e.g., late loan payments, third-party penalties, opportunity loss).Soyut Yöntem:
In hyperinflationary environments, general life experience and macroeconomic conditions may justify assumptions of harm. For instance:“It is common knowledge that in Türkiye, during high inflation, people do not leave cash idle—they invest it. This assumption can serve as a presumption of loss.”
Courts have started recognizing this presumption, particularly post-2017.
Recent Precedents Supporting Munzam Zarar
Yargıtay 11th Civil Chamber (2018/1512 E., 2019/3201 K.)
The court criticized the lower court for requiring strict proof of harm over a 16-year default period despite Türkiye's economic instability. It instructed a reassessment using economic data to evaluate munzam zarar under TBK Articles 50 and 51.
Statue of Limitations (Time Limit) to Claim Munzam Zarar
According to TBK Article 146, the statute of limitations is 10 years, starting from the full collection date of the main debt.
Conclusion: Seeking Justice Through Munzam Zarar
Munzam zarar serves as a corrective legal tool to balance debtor-creditor relationships—especially in volatile economic periods. While the creditor remains responsible for proving specific loss, courts now accept macroeconomic data and expert analysis as legitimate means of evidence.
At Bayraktar Attorneys, we help both individuals and businesses prepare and substantiate their munzam zarar claims using detailed financial reports, expert opinions, and compliant litigation strategies. Whether you're a creditor looking to recover real losses or a debtor facing claims of fault, we can provide robust legal support under Turkish law.
