NEWSLETTER-2020-metin

271 CIVIL PROCEDURE LAW ment. In such cases where there is no clear settlement agreement, it is stated that there is a hidden (covered) agreement. In cases where such hidden settlement is found, the law stipulates joint liability for both the attorney and the client for the counter party attorney’s fee. However, both the business owner and his/her opponent under- take the responsibility for the payment of the attorney fee in cases that result in an agreement with the aforementioned Article, and/or which are left without further follow-up. However, it is not clear from the Article whether the joint liability of the business owner and the opponent as mentioned in the Article includes the contractual attorney fee to be paid to the attorney according to the attorney fee agreement between the attorney and the client. The Decision clarifies this issue. Justification of the Decision The Decision has stated that the contractual attorney fee is not within the scope of liability under Article 165 of the Law. The justifi- cation of the decision is as follows: • To hold the counterparty/opponent responsible for the “contractual attorney fee” arising from the contractual rela- tionship between the attorney and the client, who is not the party of this relationship, and who has had no opportunity to determine the conditions, violates the principle of privity of contracts, which is one of the basic principles of the law of obligations, and the principle of freedom of contract, which is protected under Article 48 of the Constitution. • The security law principle also includes the confidence that the legislation in force will continue. In this context, it cannot be expected from a person, who settles or concludes a dispu- te of any agreement, to foresee that he/she becomes obliged to pay an attorney fee arising from a contract to which he/she is not a party. Consequently, the acceptance that the attorney fee is under the joint liability of both the business owner and the opponent undermines the principle of legal security. • Attorney fee refers to an amount or value corresponding to the legal assistance of the attorney. Therefore, the fact that