General Assembly of the Law 2017/1202 E. , 2017/1049 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case of “cancellation and registration of title deeds”; Decca 1. 16.10.2012 day and 2011/85 E, which were issued by the Court of First Instance on the acceptance of the case., 2012/294 K. decision No. 1 the defendant … the defendant with the deputy 19.11.2013 day and 2013/276 E of the Legal Department., 2013/16152 K. by his numbered decision;
“… The case concerns the cancellation of the title deed and the registration request based on the legal reason for the abuse of power of attorney.
Plaintiff; the defendant, who is the husband of Mehmet’s wife’s sister, owes Erol, another son to the defendant … and his real estate at his direction, that his son Erol has given power of attorney in order to mortgage the store that is the subject of contention due to the difficult situation
The defendant … declared that he had obtained the power of attorney to obtain a mortgage, that he had sold the real estate to Recep, who had a chimney as a result of his brother’s pressure, that the plaintiff was right and accepted the case, the defendant
1023 of the Turkish Civil Code, in which the power of attorney was abused by the court and the defendant was also charged. it was decided to accept the case on the grounds that it could not benefit from the protection of its article.
From the contents of the file and the collected evidence; condominium board 44 ada 11 The subject of the dispute registered in the parcel No. 1 belongs to the plaintiff, Çatalca 1. On 01.12.2009, the defendant’s son Erol’s shop, which the Notary Public Office appointed as a proxy with a power of attorney in the form of a regulation dated 26.11.2009, was transferred to the defendant … for 10.000.-It is understood that he transferred it by showing sales at a cost of TL.
As is known, according to the provisions of the Code of Obligations regulating the representation and power of attorney act, the power of attorney agreement is largely based on the mutual trust of the parties. Most of the deputy’s debts arise from this element of trust, his obligation to behave in accordance with the interests and will of the deputy.
6098 pp. In the Turkish Code of Obligations (TCC), the debt of loyalty and care has been recognized as the most prominent debt of the trustee to the trustee and 506. in his article (818 p. 390 of the Code of Obligations.) in the same way as in the article; “The deputy is obliged to personally fulfill the deputy’s debt. However, in cases where the proxy has been authorized or the situation makes it mandatory or possible, the proxy may have someone else do the job.
The deputy is obliged to carry out the work and services he undertakes with loyalty and care, taking into account the legitimate interests of the deputy.
In determining the responsibility of the attorney arising from the duty of care, “the behavior that a prudent attorney who undertakes work and services in a similar field should demonstrate is based on.” the provision has been included. In this respect, the deputy is under the obligation to act in accordance with the interests and will of the deputy, to avoid damaging behavior. The scope of the power of attorney, if it is not clearly indicated in the contract, is determined by the nature of the work to be performed. (TBK’s 504/1.article). Even if there is no clear provision in the contract about how the power of attorney will be fulfilled or the transaction remains within the limits of the authority of external representation, this obligation of the attorney is always present. In fact, the fact that the owner is authorized by the proxy to sell the real estate to anyone he wants at any price, even specifying the person he will sell to, ignoring the rule of decency, loyalty and care debt to him, does not give him the right to sell beyond reasonable limits by ignoring the debt of loyalty and care. The deputy who commits an action or an action incompatible with the benefit of the proxy shall be liable in accordance with the last paragraph of the said article. This responsibility is determined in comparison with the responsibility of the worker who is lighter in the BK, while the responsibility of a clairvoyant deputy who bases his work and services in a similar area in the TBK is further aggravated on the basis.
On the other hand, the person who contracts with the surrogate is 4721 p. 3 of the Turkish Civil Code (TCC). if he has good intentions in the sense of his article, that is, he does not know that the deputy has abused his power of attorney, or if he cannot know that he has taken the expected care of himself, if he cannot, his contract with the deputy is valid and binds the deputy. Even if the deputy abuses his/her power of attorney, this issue remains an internal problem between the deputy and the deputy, and cannot affect the rights gained by the person dec contracts with the deputy.
However, if the third party comes out and cooperates with the proxy, or if it is malicious and knows that the proxy is abusing his/her proxy position, or if it is necessary to know that the proxy is not considered bound by the contract, TMK 2. it should be considered as a natural consequence of the rule of honesty written in the article. Since the article of the law in question is of a binding nature, it is mandatory to be considered spontaneously (formally) by the judge. On the contrary, encouraging bad intentions is at least turning a blind eye to it. However, in all modern legal systems, bad faith has not been preserved and has always been condemned. As a matter of fact, practice and scientific opinions have developed and gained stability in this direction.
When it comes to a concrete case, a subject of debate of Attorney special power of attorney is, where is located the authority to sell the plaintiff with the consent of the representative authorities deliberately in a power of attorney of the son, sa’id return from the witnesses listened to the narrative; the defendant …’s came to him and sold the shop, asked that whether you want to be stated, Moreover, defendant
On the other hand, as a result of the report received from technical experts as a result of the application made at the local 95.000 of the real value of the real estate on the date of transfer.-It turned out to be TL, and 10,000 for the defendant … by proxy.-Although the assignment has been made at a cost of TL; the defendant …’s sales price is actually 90.792.-By defending that it is TL and that the sales price was deposited into the Vakıfbank Account of the proxy on 01.12.2009 and by correspondence with the Çatalca Branch of Vakıfbank; on 01.12.2009 …’s follow-up account-No doubt he paid TL.
On the other hand, the defendant closed the loan with the sale price paid to the bank …’s event saw gains because of, therefore, would not affect the case of the declaration of acceptance that the other defendants, on the other hand, the defendant declared that his wife was on the account is pulled from the case of 91.300 halkbanka 01.12.2009 gonc from Selma.-It is clear that the claim that TL was used for the purchase of real estate cannot be proven, nor will it change the fact that the proxy Erol was paid in an amount close to the real price for the security.
If so, when these cases mentioned are evaluated together with the principles mentioned above, it is concluded that the security is voluntary and the power of attorney is not abused. If the price related to the sale by the proxy has not been paid to the plaintiff, it is also possible to file a lawsuit against the proxy arising from the price, since there is no request arising from the price in the case.
As such, it is not true that the judgment has been established as written with a erroneous assessment, while the rejection of the case should be decided …”
at the end of the re-trial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
It is understood that the defendant …’s name was written as “Mustafa” as a result of a material error in the third line of the fourteenth paragraph of the decision to break the Private Apartment, while the word written as “Mustafa” was corrected as “Mehmet” and the decision to break the Private Apartment adopted by the General Assembly of Law should be complied with in this way to correct the material error and resist the previous decision it is against the procedure and the law.
Therefore, the decision to resist must be overturned.
CONCLUSION: The defendant … decided unanimously on 31.05.2017 to correct the financial error described above by accepting the appeal of his/her attorney, to overturn the decision to resist for the reasons shown in the decision to overturn the Special Chamber, to return the advance fee of the appeal to the depositor upon request, with the decision open for correction on 31.05.2017.
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