T.C.
JUDGMENT
GENERAL ASSEMBLY FOR THE UNIFICATION OF THE JUDICIARY
E. 1944/15
K. 1944/28
T. 4.10.1944
– ASSURANCE TO EVACUATE (Given at the Time of the First Lease Agreement)
– LEASE AGREEMENT (Invalidation of the Eviction Commitment given during the first time)
– INFRINGEMENT OF PUBLIC ORDER (Eviction Commitment Given at the Time of the First Lease Agreement)
– NATIONAL PROTECTION LAW (Conditions and Commitments Regarding the Evacuation of the Leased Property as long as it is in force are not valid)
818/m.19,20 3780/m.30 6570/m.11 2004/m.275
SUMMARY : The eviction commitment given at the time of the first lease agreement is not valid. The eviction commitments put into the first lease agreements are unlawful and invalid because they neutralise the provision of the lease agreements that legally extend automatically.
CASE AND JUDGEMENT : Between the decisions of the Third Chamber of Appeal dated 28/9/1943 and numbered 11185/9698 and the decisions of the Commercial Chamber dated 8/5/1943 and numbered 863 /917 on the issue of whether the eviction clause undertaken at the beginning of the contract can be valid in accordance with the thirtieth article of the National Protection Law The settlement of the contradiction and inconsistency was requested by the First Presidency’s letter dated 22/4/1944 and numbered 3/107, and the file registered under number 944/20 was also merged as it was the same as the incident, and the judgements constituting the subject matter of the dispute were duplicated and distributed to the members of the General Assembly.
The General Assembly convened at 9.30 a.m. on Wednesday, 27/9/1944, the date appointed for the deliberation, under the chairmanship of the First Chairman Halil Özyörük, and after the points constituting the basis of the dispute were explained in detail by the First Chairman, the following took the floor:
O. Nuri Köni : It is against the main lines of the National Protection Law. Such a condition cannot be included in a contract. This right given by the National Protection Law to the contractor, it is not the time to say this condition before the contract is concluded. This concerns public order. There is no authorisation to say such a thing at the time of the contract. Judgement agreements are like this. Waiver of appeal is not valid before the appeal is made. The decision of the Commercial Department is correct.
First Chief: A man has travelled to the countryside. The other has rented out his house for the duration of the holiday. Can he not be evicted during this period if he files a writ of execution?
O Nuri Köni: I can accept exceptional cases and we do.
Cevdet Baybura : The contract is made for four or six months in the case of houses in the countryside and one year in the case of dwellings. Laakal will give fifteen days notice and evict. According to the word “laakal”, is it valid if he does this one hour after the contract?
If a contract is finalised and signed and an annotation is given under it, and it says that it will be evicted after five months, can a temporary contract be issued on the same date according to the situation of the parties and the condition of the dwelling, and after saying that it will be evicted after one month, can it say that it will not be evicted because of the National Protection Law? The National Protection Law was enacted for necessity. It is applied to the extent of necessity.
Şefkati Özkutlu : Rights that are in the interest of order cannot be waived at once. We do not accept things that are Muaddünlil istiğlal. The National Protection Law is valid. Such a condition cannot be stipulated in the contract.
In some special cases, we accept only if there are such conditions in the contract. For example, a man is going to the army. If he says that he will enter the shop when he comes back, such cases are valid.
O.Nuri Köni : We will set a general principle here. It can be considered for some special cases, such as a holiday home. The judge will make a judgement for that particular case, and due to lack of time, the discussion was adjourned to be continued in the next meeting. 27/9/1944
SECOND SESSION : 4/10/1944
After the quorum was established and the previous discussion and incident was once again explained by the First Chairman, the floor was opened to the floor:
O Nuri Köni : The nineteenth and twentieth articles of the Code of Obligations recognise that some things cannot be included in the contract and if they are included, they are null and void. Notice is something used after ownership. In the other, there is a threat. Because if you do not put this record, it says I will not give it. For the sake of order and public order, the law-makers have put the thirtieth article of this National Protection Law. As a matter of fact, the inventors are a little bit mutazzir, what can we do. In order to eliminate the harm of the general public, the harm of the particular is preferred.
The countryside belongs to a class of people. For this, the courts are more lenient. Appeal can do this too. Therefore, for the sake of five or ten cottages, it cannot undermine the principles laid down in the thirtieth article for the sake of public order. The decisions of the Commercial and Enforcement Offices are correct.
Şefkati Özkutlu : We all accept that the thirtieth article is a matter of public law. When making a contract, he says that he will not benefit from the provisions of Article 30 or that he will evacuate as soon as the term expires. Or a paper is taken from his hand. According to these forms, it is necessary to make a judgement according to these facts. If the landlord admits, I signed without any influence, but now my work is spoilt, I will not leave, what will happen in this situation and how will we settle it? The notice is one of the conditions of the contract according to the Code of Obligations. In my opinion, if the contractor has made the contractor sign a contract in violation of the law and has acted with the intention of circumventing the provision of the law, this contract is not valid. When it is not valid, the contractor sits for ever. If this is not the case, but a property that is not actually rented is rented for a certain and temporary period of time due to the fact that it is no longer necessary to use it and it is stipulated to be evicted at the end of this period, it is correct to consider this condition as valid. However, even in such a case, the tenant may defeat the lawsuit by proving with all kinds of evidence and presumptions that the reasons on which the condition is based are groundless and fabricated with the aim of eliminating the provision of the law. There is no provision of law to prevent this.
Fevzi Bozer, Fourth Chief of Law : In the thirtieth article of the National Protection Law, it is written for what reasons the eviction of the dwelling may be requested ( 2 ).
1 – Necessity of housing,
2 – The behaviour of the owner in violation of the provisions of the contract,
3 – At least fifteen days before the expiry of the term of the contract, the owner must notify the landlord that he will vacate the property.
Here, the third reason has caused a dispute Some of my honourable friends are of the opinion that : Since it is accepted in the thirtieth article that the evacuation of the house with a notice of at least fifteen days, the evacuation of the house can be undertaken during the term of the contract and this undertaking is valid.
In my opinion, this commitment is not valid. Because it is contrary to the provisions of the Law. In fact, it has been accepted to evacuate the apartment on condition of at least fifteen days’ notice. However, according to the contract, this is not a notice of eviction, but a condition imposed on the eviction of the evacuation of the evacuation during the conclusion of the contract. This condition is against the landlord and is contrary to the mandatory provisions of the thirtieth article.
The landlord is in no way disadvantaged by this. Because, if there is a necessity of housing, only for this reason, the owner has the right to evacuate. If there is no necessity of housing, he cannot demand evacuation based solely on this condition. Because if evicted, the place will be rented to someone else again. The rent cannot be more than 939. Therefore, the landlord has no interest in eviction. He has the sole intention of harassing the landlord. I am of the opinion that the mucirin who has acted with malicious intent will not be entitled to the protection of the law and in this way, the commitment and the condition are not valid.
Vehbi Yekebaş : Notice is required by law. If it is included in the contract, it becomes a condition of the contract. However, according to the Protection Law, the continuity of the contract is dependent on the observance of the conditions of the contract. Here, the condition of the contract is eviction at the end of the term. This is not permissible, I think. Isn’t the imposition of such a condition a departure from the truth at the expense of the owner? Could Mr Şemsettin Temizer inform me on this matter?
Third Chief Justice Ş. Temizer: I was not present at the first hearing of this case and I listened to the arguments repeated by the dissenters. Their point of view centres on the fact that a tenant notifies the landlord that he will evacuate before the expiry of the written term in the lease agreement, or more precisely, that all provisions regarding lease agreements in the thirtieth article of the National Protection Law are for public order and the arguments are based on this.
In this case, what is public order and which of the various provisions of the thirtieth article is related to public order and which is not? If we analyse and solve this issue, we will easily solve this case. It is well known to your High Council that legal transactions, relations and matters which are legally obliged to be concluded, finalised and executed within the framework of the law, and in which the parties’ desires and consents must be expressed within the framework of the law, fall under the concept of public order, and matters other than this, in which the parties can act as they wish and in which they are free to decide, do not fall under the concept of public order.
When we analyse this thirtieth article, we see that the provision of this article that the rent cannot be more than the rent for the year 939 is directly related to public order. Even if the rent between the lessor and the lessee exceeds the rent for the year 939 with their consent, this does not have any effect. The part related to the excess is null and void and contrary to the provision made for public order. The consent of the parties to this transaction is contrary to the provision for public order. Again, this article denies the landlord the right to demand eviction and the tenant the right to quit solely because of the expiry of the lease term. It extends the lease term, which obliges the lessor and the lessee to comply with all the terms of the contract, against the consent of the parties, until three months after the law ceases to be in force. In this way, the provision on the extension of the lease term against the will and consent of the parties is a public order. However, if the lessee proposes to leave halfway and even before the end of the term written in the contract between them and to break the contract, and the lessor accepts this proposal and terminates the contract, this termination is valid. Because the thirtieth article does not include the finalisation of the contract in its provisions and does not extend public order to this.
Again, although the law has extended the lease term beyond the desire and discretion of the parties, as I mentioned above, in order to protect both the lessor and the lessee, it has made a provision that it can be removed or removed even without the consent of the other. In other words, it gives the right and authority to the lessor to evict the lessee who is obliged to live in the dwelling, provided that the contract between them expires, and to the lessee to leave, provided that he notifies in writing at least fifteen days before the end of the lease period. Even this provision has nothing to do with public order, as it gives the parties a choice. In other words, the lessor, who is obliged to live in a dwelling, and the lessee, whose contractual term has expired, are left free to exercise this right or not.
Which provisions of the thirtieth article are related to public order and which are not? Since this has been revealed by examination, it is not correct for the honourable opponents to talk about public order in absolute terms. Therefore, why is it a matter of public order for the lessor, who is obliged to return to the rented house after six months or one year, and the lessee, who knows this situation, to write this fact in the lease agreement? Likewise, why should the tenant write in the contract that he only needs the rental house for one year and that after one year he will leave not only the house, but even the country where the house is located, by notifying the lessor of this fact and writing it in the contract and the parties accepting and signing it? The high opponents only say that it is against public order and cut it off. They criticise each other, some saying that it is not permissible to include it in the contract, some saying that it is not permissible to include it in the contract, some saying that it is not permissible to include it as a condition.
Whether the tenant’s exercise of this right is called a notice, a condition or a commitment, in short, whatever it is called, since this thirtieth article grants the lessor the right and the power to remove the tenant at the expiry of the term of the residential obligation and to use the right and the power to leave the house if the tenant notifies the tenant in writing at least fifteen days before the expiry of the term. What is the obstacle to the exercise of this right at the time of the contract? Can it be legally prohibited for them to compile this into the contract by realising the necessity that will arise for them at the end of the term while concluding the contract? Hasn’t it already accepted the tenant to notify the tenant in writing at least fifteen days before the expiry of the term? Doesn’t the most of this last until the time of the contract?
If the opponents accept the written notification of the lessee to the lessor a few hours after the contract, why do they not accept the commitment made a few hours earlier? It was not possible for me to understand this from their arguments. The point they fear the most is that the landlord may have taken advantage of the tenant’s difficulty in finding a house for rent due to the housing crisis and the landlord may have forced the tenant to accept this commitment at the time of the contract of tenancy. If there is such a situation, the tenant always has the right to claim and prove the invalidity of this consent in accordance with the general provisions. The landlords, who are aware of the jurisprudence of the honourable authorities who do not consider it permissible to include such a commitment even in the contract, try to achieve their purposes by obtaining an undated letter from the lessor while making the rent. This jurisprudence, which is very similar to what was once called fraudulent shari`a, now constitutes a fraudulent law. The jurisprudence which requires honest behaviour should be strengthened rather than giving preference to deceitful behaviour which will complicate the transactions of the right.
As regards Mr Vehbi’s question whether the insertion of such a clause in the contract and agreement would not be a departure from honesty on the part of the beneficiary, it is possible to find the answer to this question in my above-mentioned explanation. If the landlord is obliged to use the rented house as a dwelling after a certain period of time and the tenant, knowing this obligation and necessity of the landlord, has undertaken to evacuate the house at the end of the contract period, and this undertaking is deemed acceptable by the jurisprudence of your Supreme Council, why would there be a departure from the truth on behalf of the landlord? If the landlord has misled the tenant with such declarations, has lured him into life, or has made this commitment by taking advantage of the tenant’s state of distress and necessity, our general provisions protect the tenant. Such cases can always be claimed in every contract.
However, it is understood from the statements of the Honourable Chairman of the Fourth Civil Chamber and the explanations of the Honourable Mr. Nuri that those who have rented out the whole or part of the dwelling house as a country house, if they have their tenants accept such a commitment and write it in the lease agreement, they accept that this will be valid and they say that decisions have been made in this way. In this case, it means that we are united. As I said above, the landlord is obliged to go to another country with his family for a temporary civil service, for example, for a job that will last for a year. It is not right for the house to remain empty for a year from both economic and conservation points of view. He wants to rent it on this condition and makes an application to the tenant for a lease agreement in this way. The tenant also accepts the offer in this way. What is the difference between this and the example of the country house? Why was it not valid? As for the landlord: what is the difference, what is the drawback, if the landlord in the above example, who rents his house and goes to another country for a year’s work, notifies the landlord in writing that he will live in the house he has rented for a year and then evacuate and return to his homeland, and notifies the landlord in writing that he will evacuate the house he has rented for a year at the end of the year after a month, and uses this right and authority in the preparation of the lease agreement and includes it in the agreement?
In short, no matter how one looks at it, the opinions and words of the honourable opponents did not cause me to change my opinion based on the reasons I have listed at length, and I find the salvation in this opinion. It has also been said that the phrase in the thirtieth article, if he notifies in writing at least fifteen days before the expiry of the lease period, requires that this right must be exercised after the contract and this record prevents the legal eviction commitment from being included in the contract. In my opinion, this reasoning is not correct. Because it is obvious that the drafters of the law used this expression by taking into consideration the situation that the landlord is obliged to leave the house after the time of the contract and the situation that he cannot stay for more than one year for any reason at the time of the contract. Because the law, by using the expression “at least until the expiry of the term”, means that the landlord can use this right until fifteen days from the time of the contract until the expiry of the term, and if he uses it after that, he cannot evict the landlord without the consent of the landlord, and if he evicts the landlord, he will bear the consequences of the law. Therefore, to what extent it is correct to say that the term “to notify” does not extend to the notification of the inventor at the time of the contract, I do not know.
In short, the case law of our Chamber is correct in terms of the fact that the issue has nothing to do with public order and the clear wording of the law.
F. Hulusi Demirelli, Chief of Commerce: The provisions of the thirtieth article of the National Protection Law regarding the non-hearing of eviction cases and the deemed extension of the lease term have been enacted in order to constitute an exception to these provisions of the Code of Obligations for the duration of the crisis, although it is known that the obligations imposed by the Code of Obligations on the lessee to evict and return the leased property at the end of the term are known. The conditions and commitments contained in the printed articles of the contracts of tenancy and lease, for example in their number 8, which confirm the similar provisions of the old Mecelle and the current Code of Obligations in this respect, should be cancelled as long as the thirtieth article of the National Protection Law is in force. This cannot be otherwise. Because, both those conditions and commitments and the provision of the thirtieth article cannot run together. The notice stated in the aforementioned article is of a different nature than the requirements of the contract and the written or specially written eviction commitments in the contract. The condition stipulated and the commitment made by the parties during the conclusion of the contract is one thing, and the notice to be made voluntarily by the lessee after the contract that the leased property will be evacuated at the end of the term is another. If these are confused and the condition and undertaking at the time of the contract are considered as notice, the purpose or objective of Article 30 will be undermined and the exceptional and mandatory provision set forth therein will be rendered ineffective in many cases, especially in new leasing cases.
Şefkati Özkutlu : In our case, there can never be any ikrah.
Necati Ünlügil : In this case, the “expressions” used in the law should be considered as denunciation.
First President : Freedom of contract is the freedom of the individual. Anything that violates the freedom of contract must be related to public order. The rights of the parties in a contract of tenancy are subject to the law. According to the provisions of the National Protection Law, the landlord cannot say “get out” when the contract is concluded. It is only possible under certain conditions. Therefore, the restriction of this contract is the public order. It is natural that such a commitment cannot be based on a reasonable and logical basis at the time of the contract. There must be a difference between condition and notice. These fifteen days have a customary and specific time. It cannot be correct to relate it to the time of the conclusion of the contract:
The National Protection Law was enacted to prevent the cost of living. The thirtieth article of the Law has been drafted with the aim of preventing the crisis of both home and labour market and the cost of living that may result therefrom. Therefore, like all the provisions of the Law, the provisions in this article are among the mandatory provisions as they are derived from the public order. As a matter of fact, the aforementioned article has extended the periods agreed upon by the parties in the lease agreements on the condition that the provisions of the agreement are complied with by the lessee, and has eliminated the provisions of the Code of Obligations regarding the necessity to return the property to the lessee at the expiry of the contracted period for a temporary period of time in accordance with this condition, and has prohibited the hearing of the eviction lawsuits of the lessees based on the Code of Obligations and the eviction commitments of the lessees written with clear wording in the printed contracts. The article, of course, does not and cannot interfere with the termination of the contract with the consent of the parties. However, in the facts, such termination with the consent of the parties is not in question. What is in question is only the case where the notice of eviction to be given by the tenant is included in the contract in the form of a condition agreed by the parties during the contract. In a way, since the necessity of evacuation will accrue if the notice is made by the tenant at least fifteen days before the expiry of the term, it may be assumed that the inclusion of such a statement in the contract while the contract is still being concluded should give the same result. However, the intention of the drafter of the law and the meaning of the term “notice” are not suitable for this. Because, although it is accepted that the tenant can get rid of the provisions of the extension of the term with such a notice when the contract is concluded or as in our cases, the evacuation commitment during the contract cannot be taken as the authority of this notice. It is known that it is not customary to give such a notice during the contract. contracts contain only terms and conditions. In order to prevent the prolongation of the contractual term in advance in accordance with the law, the eviction commitment to be accepted by the lessee cannot be anything other than the condition that the general provisions and the provisions of the contract relating to eviction remain in force, contrary to the mandatory and exceptional provisions of the law. In most of the cases, the tenant accepts and signs this condition in order to find a dwelling or a place of art and commerce. In any case, this condition and undertaking is null and void and cannot be valid in accordance with the nineteenth article of the Code of Obligations due to its opposition to the mandatory and exceptional provisions of the aforementioned thirtieth article. The notice stated in the article is a written declaration that is not of this nature and that the lessee will make spontaneously after the contract is concluded. Even if the tenant has consented to the eviction commitment to be considered as a notice in the special conditions section of the contract, since this commitment cannot be anything other than accepting a condition stipulated by the inventor to consent to the contract, it cannot be considered as a notice, and it means that a condition and commitment contrary to the mandatory provision of the article has been accepted, and there can be no doubt that such commitments must be considered null and void in accordance with the aforementioned article nineteen of the Code of Obligations. For this reason, it is not permissible to consider the provisions of such agreements as a kind of notice as stipulated in the aforementioned thirtieth article of the National Protection Law, and to consider the contrary would not be in accordance with the purpose of the Law.
CONCLUSION : For the reasons and considerations mentioned above, it was decided on 4/10/1944 by a majority exceeding two thirds of the votes that the conditions and commitments to be included in the lease agreements that the premises will be evacuated at the end of the contracted period are not valid as long as the National Protection Law remains in force.
You can access our other article examples and petition examples by clicking