THE SUBROGATIONOF THE INSURER IN TURKISH LAW

Abstract

The word “Khalaf” is etymologically of Arabic origin and means “one who follows someone and
takes his place”. When evaluated as a legal term, "subrogation" means "replacing and replacing the
creditor in proportion to the payment made by the third party paying the creditor"; in other words, it
is a word that expresses the fact that the third person making the payment or performing the
payment has the rights legally possessed by the creditor.
When we look at the arrangement of the subrogation, it is seen that the general regulation regarding
this is included in the Turkish Code of Obligations No. 6098. Art of the aforementioned Law.
According to the provision of art 127, it will be seen that there are two possibilities in which
subrogation can take place: “the third person who will perform to the creditor by the debtor notifies
the creditor before the performance that he will succeed him” and “the owner or another real right
holder other than the property releases something pledged for the debt of the third party from the
pledge”. However, another point that draws attention in the provision is that other provisions
regarding the states of subrogation are reserved (Turkish Code of Obligations art. 127/2).
One of the provisions reserved by the Turkish Code of Obligations No. 6098 regarding the
subrogation is the subrogation of the current insurer in the insurance law. When we look at the
regulations regarding subrogation in insurance law, it is seen that the Turkish Commercial Code No.
6102 (in short: TCC) refers to the provisions regarding this principle separately for property and
liability insurances. While the subrogation of the insurer in property insurance is regulated in the
provision of TCC 1472, the subrogation of the insurer in liability insurance is regulated in the
provision of 1481 of the TCC. The aforementioned provisions, in parallel with each other, regulate
that the insurer who pays the insurance indemnity will legally replace the insured and states that the
insurer's right of action and proceeding against those responsible for the damage incurred will pass
to the insurer in proportion to the indemnified insurance indemnity.At the same time, the aforementioned provisions prohibit the insured from acting in a way that
violates the insurer's rights regarding substitution and regulates that the insurer will be liable to the
insurer if it violates its rights regarding substitution (TCC 1472/2 and TCC 1481/3). When the
provisions are taken together, it is noteworthy that the subrogation is mainly regulated for loss
insurances and this principle cannot be applied for sum insurances as a rule. Because the important
thing in terms of amount insurance is the payment of the amount agreed in the insurance contract in
case of the realization of the risk. In sum insurance, compensation for a loss is not on the agenda.
Accordingly, it can be said that sum insurances do not comply with the purpose of the subrogation
principle.
While the Turkish Commercial Code No. 6102 regulated the principle of subrogation on the one
hand, it supported this principle with another principle, namely the principle of prohibition of
enrichment. With the phrase "The Insurer compensates the loss suffered by the insured", the
provision of the TCC art. 1459 states that the insurer will only cover the actual damage within the
scope of the coverage and will not be liable for more. Thus, the legislator tried to prevent the
insurance institution from being used as a means of enrichment. The principle of subrogation also
essentially supports the prohibition of enrichment. The principle of subrogation prevents the insured
from making a second claim by applying to the person responsible for the loss, even though the
insured has applied to the insurer for compensation, that is, the insurance institution is not used as a
means of enrichment. The insurer becomes a successor to the insured only in proportion to the
portion of the damage indemnified under the insurance contract, and on the other hand, the insured
continues to have the opportunity to apply to the loss responsible for the portion of the damage not
covered by insurance. The insurer has the right to recourse to the loss responsible for the amount
paid and thus successor to the insured. In order for the insurer to recourse to the loss responsible, it
is required that the insurance indemnity has been partially or fully paid and that the insured has the
authority to pursue or litigate against the loss responsible. The statute of limitations to which the
insurer is subject when exercising its right of recourse is the same as the statute of limitations when
applying to the insured person.
In this article, the conditions, provisions and consequences of the insurer's subrogation in Turkish
law are discussed in the light of the views in the Law and doctrine by referring to the general
regulations regarding the subrogation.