General Assembly of the Law 2017/580 E. , 2020/97 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial held due to the “compensation” case between the parties, Eskişehir 3. dec. The decision on the acceptance of the case, which was made by the Court of First Instance as a consumer court, on the appeal of the defendant’s deputy, was made by the Supreme Court 13. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the defendant’s deputy.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. In the petition dated 14.08.2013 plaintiff attorney client contract dated 25.04.2005 purchased from the defendant delivered on 05.09.2007 town houses with houses of immovable if it is incorrectly manufactured using quality material and stucco sheathing of the building in due time to be poor, the cracks started to fall, the situation on the emergence of all of the buildings on the site, Eskisehir 3 the defendant personally. 2012/3 D of the Court of First Instance.Claiming that the defective and incomplete production in all residences was determined in the determination he made through his file no.Iş, no action was taken by the defendant, the actual damage of his client will be determined as a result of the examination to be conducted by the court, he requested and sued to be decided to collect the excess compensation of 2.000,00TL from the defendant, reserving his rights, and corrected his request as 2.835,70TL with his petition dated 15.04.2014 he has.
The Defendant’s Answer:
5. The defendant’s representative, project and contract under the contract between the elimination of jobs and flawed and incomplete where his client was identified from the case that belongs to the contractor in accordance with relevant that is communicated to the client by a contractor of shame that have been fixed are evaluated and, in spite of this, the administration of the plaintiff’s demands in the nature of the abuse of the right to speak to that, as well as No. 4077 on the protection of consumers in the time stipulated by the law report was completed in accordance with the construction standards that have been made to shame, 3 dec4 of the contract of sale between the plaintiff and his client. in his article, he asked for the rejection of the case, arguing that it had been clearly agreed that the buyer would not demand subsequent repairs, repairs or receivables related to the real estate he received by seeing the current situation.
The Decision of the Court of First Instance:
6. Eskişehir 3. Dated 30.05.2014 and issued by the Court of First Instance in the capacity of consumer court 2013/525 E., 2014/320 K. by its numbered decision, it was decided that the defendant was responsible for the damage caused due to the hidden shame caused by manufacturing and that the case was accepted over the amount of the rectified amount on the grounds that the case was filed during the time.
The Decision to Spoil the Private Apartment:
7. Against the above-mentioned decision of the Local Court, the defendant’s deputy appealed within the time limit.
8. Supreme Court 13. By the Law Department dated 20.10.2014 and dated 2014/37088 E., 2014/32238 K. by his numbered decision;
“The plaintiff requested a repair fee, stating that there were later defects in the apartment he bought, and that these defects had not been corrected by the defendant. The court decided to accept the case by accepting that the mentioned shame is a hidden shame in accordance with the expert report entered into the file. The immovable property subject to the lawsuit was handed over to the plaintiff on 05.09.2007, and the plaintiff filed the current case on 14.08.2013, claiming that there is a hidden shame in the immovable property. From the evidence collected and the scope of the file, it is understood that the real estate subject to the case is a hidden shame. From the moment the hidden shame appears, it should be reported immediately. It is understood that by the date of the lawsuit, the plaintiff had not given any notice to the defendant. In this case, while the decision to dismiss the case should be made, the decision to accept the case on written grounds is contrary to the procedure and the law and is the reason for the violation.”on the grounds that the provision has been violated.
The Decision to Resist:
9. The Court dated 26.06.2015 and dated 2015/475 E., 2015/651 K. by decision no. 2012/3 D. With regard to the housing, including the immovable property subject to the defendant’s lawsuit.2009/13-160 E of the General Assembly of Law, which explains that the notification is not subject to the form, that it has been identified with file no. Iş, with this determination, the defendant was aware of the shame before the opening of the case at hand, so the plaintiff no longer has the obligation to inform the secret shame, the notice is not subject to the form., 2009/185 K. in its numbered decision, it was decided to resist on the grounds that the evidence determination report was considered a disgraceful notice, that many acceptance decisions made in the same direction were approved by the Special Department, and that there was no situation that required a different decision to be made in relation to the same case.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the defendant’s deputy within the time limit.
II. DISPUTE
11. In the event that the seller performs a court-ordered determination of the shame subject to the lawsuit before the date of the lawsuit, the plaintiff who seeks compensation in relation to the hidden shame detected is collected at the point where the consumer has an obligation to notify.
III. reason
12. Before proceeding to the resolution of the dispute, it will be appropriate to examine the provisions on the concept of shame and liability for shame in consumer law.
13. While there are already general qualified regulations aimed at protecting the buyer against the sale of defective goods [Code of Obligations No. 818 (BK), m.194-207 and Article 6762 of the Turkish Commercial Code (TCC), which was in force at the time of the lawsuit. 25/3], in the Law No. 4077 on Consumer Protection (TKHK), which entered into force with the aim of protecting the consumer more effectively, this issue has also found a place for regulation.
14. 4 of the Law No. 4077, which must be taken into account in the dispute as of the effective date. in the first paragraph of the article; “The packaging on the label or in the manual introduction and promised by the dealer identified in the standard or quality and/or quantity or value or in terms of the consumer or purpose which is contrary to allocate that reduces or eliminates the benefits expected from it, financial, legal, or economic deficiencies that contains the defective goods or defective goods or services is considered a service.” it is said, and in the ongoing paragraphs, the formal conditions related to this are considered.
15. In the event of a defect, in order to hold the seller responsible for the shame of various material conditions (to be important for the existence of a deficiency to be rude it’s a shame, shame passed to the buyer of the goods of the benefit and the harm to be there when the consumer, without knowing the existence of the defect of the goods to be purchased), and in particular to happen as we are notified of the defect must be provided by the formal requirements of the buyer.
16. The legislator obliged the consumer to notify the addressee of the error within thirty days from the date of delivery of the goods in case of the presence of a clear error (TKHK, m.4/II). According to the information of the average consumer, hidden offenses that cannot be detected by ordinary observation or that may occur later, while the consumer is not connected with this period, from the moment the offense occurs, the 30th of the TKHK. article 198 / II-III of the BK, in accordance with the provision of the article 198/ II-III of the BK, must immediately notify the bearer as soon as possible in accordance with the rule of honesty with its statement in the established case law.
17. One of the consumer’s electoral rights of shame (m. 4/II-2.c; persons who are responsible for returning from the contract, including the refund of the price, replacing the goods with a defective one, or reducing the price at a defective rate or repairing for free) (m. 4/ III; seller, manufacturer-manufacturer, seller, dealer, agent, importer and affiliated credit institutions) the notice of notification is not subject to any form, provided that it is convenient to inform the addressee (Statement in the same direction dated 13.05.2009, 2009/13-160 E. of the General Assembly of Law dated 13.05.2009)., 2009/185 K. it should be noted that this decision, which is mentioned in the decisionto resist, is not applicable directly in a concrete dispute, since there is no precedent for a dispute between the Special Chamber and the court with the case at hand, although it is also included in the justification of the numbered decision.). Obligations law, consumer law, and more proof of The Shape of the tip in this matter between the parties related issue becomes contentious when you prove the general rule, as well as, again, the general rule that the Prohibition of the abuse of right, it is necessary to be overlooked.
18. In the light of these comments, when examining the concrete case, the subject of the case housing projects in blistering and peeling facades of all immovable suing the defendant at the scene of the start of the respondent consumers on the site with personally observed his review stated missing and defective manufacturing Eskişehir 3. He applied to the Civil Court of First Instance and was dismissed on 2012/3 D.Iş has requested the determination of this situation with its numbered file. Thus, the defendant, who knows that decency exists throughout the project, including the immovable property belonging to the plaintiff, and claims that it must be repaired by the contractor in accordance with the contract between them, argues that there is no notice of decency in the current case, 2 of the Turkish Civil Code No. 4721. it is incompatible with the rule of honesty in the sense of its article.
19. As such, the decision to resist issued by the local court is in accordance with the procedure and the law and is in place.
20. However, according to the reason for the violation, the defendant’s attorney’s appeals for other matters have not been examined, so the file should be sent to the Special Department for review in this regard.
result:
For the reasons described;
13 of the file for the examination of the defendant’s attorney’s appeals against other aspects that are suitable for resistance. TO BE SENT TO THE HEAD OF THE LEGAL DEPARTMENT,
Provisional Article 3 of the Code of Civil Procedure No. 6100. 440 / III-1 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. decision in accordance with the article it was finally decided unanimously on 06.02.2020 that the correction path will be closed.
You can read our other articles and petition examples by clicking here