20. Legal Department 2019/6341 E. , 2020/687 K.
“Text Of Jurisprudence”
COURT : Commercial Court
7. Istanbul in the case between the parties. dec. Consumer and Istanbul 18. All the documents in the file sent to determine the place of jurisdiction due to the fact that the Commercial Courts of First Instance decided to dismiss them separately were examined and considered as necessary:
Decision
The lawsuit is related to the cancellation and registration request of the title deed of the independent division, which was made by the out-of-court contractor based on the construction contract for the floor provision and sold to the plaintiffs with the promise of sale of immovable property arranged externally.
Istanbul 7. According to the nature of the contract, whether it is a contract for consumer transaction or not, commercial business or not, the parties to the contract that constitute the subject of the dispute were evaluated by the Consumer Court in the examination of the contract subject to the lawsuit on the grounds that the real estate of the shop / workplace, which was made for the purpose of purchasing real estate as a shop or workplace, cannot be the purpose of individual use and can only be bought and sold for the purpose of making a profit, a decision of dismissal was made.
Istanbul 18. Actually a concrete case of the conflict in the Commercial Court by the contractor promised the plaintiff alleged the notary section of the deed of cancellation is delivered through the sale of requesting that 2 independent registration of the claimant merchant and has found evidence that the document has not been submitted or a commercial business independent of the purchase is done the person would earn parts for investment purposes merchant, consumers can make a lot of their investment in the process, considering that the independent section of the intake duty to look into the case for investment purposes due to consumer court that belongs to the plaintiff in relation to the sale of commercial activities that we undertake independent parts found in the document or in the file that has decided lack of jurisdiction on the grounds that evidence is not available.
In the concrete case; It is related to the cancellation and registration request of the title deed based on the personal right secured from the contractor.
First of all, it is necessary to focus on the concept of personal rights. As is known, the right can be defined as the authority generally recognized by law to persons. Absolute rights are the powers that exist and are in a state of monopoly over the things to which they belong. Relative (personal) rights, on the other hand, give the owner the right to request the fulfillment of a certain act, such as giving, doing, not doing something due to a debt relationship. Absolute rights to material goods are called rights in kind. Although absolute rights can be asserted against everyone, personal rights can only be asserted against the debtor of the debt relationship.
The construction contract provides the contractor with a personal right in exchange for a share of the land plot. dec. If the conditions are in place, the contractor may force the dec of the land plot to give or do something based on the personal right he has earned. The contractor who has acquired a personal right can assert this right directly against the land owner, as well as dec decoy to a third party without the consent of the land owner and only on condition of being in writing.
Assignment of receivables and transfer of debt 162 to 181 of the Code of Obligations. it is regulated in its articles.
The rule is the performance to the creditor of the act that is the result of the debt relationship. But the conditions of life, trade and economic requirements have forced the creditor to transfer the receivable to someone else without waiting for execution, or to open ways for the debtor to transfer the debt to someone else. It seems that the security of the receivable is a legal institution that arises from the needs required by the conditions of life. For example, the contractor who owes the deconstruction work in construction contracts in exchange for a share of the land plot needs finance. It is possible to meet this need by selling the independent departments or sections that have been decided to be partially or completely left to the contractor to third parties during the construction phase or by promising to sell them. The fact is that the owner of the land plot, as a rule, is dec 364 of the Code of Obligations. the plot of the work to make the delivery according to the Article, share, transfer to the contractor during the construction phase, the contractor’s conveyance to third parties to provide finance by land from the owner to the contractor means letting credit.
If it is necessary to make a definition, the decoupling of the receivable is a form-dependent agreement between the creditor and the third party who has inherited it, which can be made without the need for the borrower’s consent and which is only a lucrative savings transaction. 163 of the Code of Obligations. according to the provision of the article, the assignment agreement may be concluded in writing between the assignor and the decommissioned area. However, the written form required for the assignment of the receivable does not prevent the assignment agreement from being made in an official manner. As a matter of fact, in practice, it is seen that third parties who have received the right to assign a personal right from the contractor make the assignment agreement as a real estate sales promise agreement in the form of a plain written sales agreement or notarized arrangement. Therefore, the plaintiff has the rights of the non-plaintiff contractor against the decedent land owners.
article 3 of the Law No. 6502, which entered into force on 28.05.2014. in article (I), “The work contracts established between natural or legal persons and consumers have been included in the scope dec consumer transaction. 73/1 of the Law. in the article, it is determined that consumer courts are in charge of cases arising from consumer transactions.
3 of Law No. 6502. no explanation has been given regarding the inclusion of work contracts within the scope of the law on the grounds of the article. Dec, when the systematics of the law is taken into consideration, it is understood that the november of the work contracts mentioned in the law are the work contracts concluded between a natural and legal person and a consumer for the purpose of using and consuming them for commercial and non-professional purposes, only for their personal needs. In accordance with the land share construction contracts 818 dec 155 et seq. it is a peculiar type of contracts of works regulated by its articles. One side of these contracts is the dec of the land plot, the other side is the contractor. It dec understood that in such contracts the owner of the land plot does not comply with the definition of consumer in Article 3/k in the Consumer Code.
The purpose dec dec for the land owner in the construction contracts in exchange for the land share is not to acquire housing for use, but to evaluate the land plot. Therefore, it should not be overlooked that the motive of the landowner when signing the construction contract in exchange for the share of the land is different from the motive of the consumer defined in Law No. 6502. dec. It should be noted that the motive of the landowner is different from the motive of the consumer. dec. Considering that the work subject to construction contracts for land share requires high-level technology, there is also a promise to sell real estate under the contract and construction contracts, dec Law No. 6502, the legislator means narrow-dec work contracts such as kitchens, cabinets, vehicle repairs for the sole purpose of use and consumption, and construction contracts for land share are not covered by this scope.
In this case, since the dispute in the case at hand does not remain within the scope of Law No. 6502, it should be noted that the case is part of Article 2 of the HMK. according to the general provisions in accordance with the article, it must be considered and concluded in the Istanbul Court of First Instance.
CONCLUSION: For the reasons described above; HMK No. 6100 has 21 and 22. in accordance with the articles, it was unanimously decided on 13/02/2020 to designate the Istanbul Sentry Court of First Instance AS the PLACE of JURISDICTION.
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