General Assembly of Law 2017/664 E. , 2017/573 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case “termination of the real estate sales contract due to decency, material and moral compensation”; Istanbul Anadolu 11. The Court of First Instance (closed Üsküdar 2. 20.09.2012 days and 2011/110 E. Issued by the Court of First Instance regarding the rejection of the case), 2012/365 K. decision No. 13 of the Court of Cassation on the appeal of the plaintiff’s deputies. The day of 06.11.2013 of the Legal Department and 15624/2013 of the E., 2013/27427 K. by decision of the numbered;
“…The plaintiff, the defendant No. 39 of the plots 102,000 in an apartment,00 TL 30.06.2010 he’s selling himself at the defendant’s apartment for years, this ground-floor sitting, despite the commitment of any moisture and flooding, rain water began to swell because of the walls, in the apartment in the determination of the court is made through the secret shame of shame, the sum of damage and loss 25.000,00 TL appeared, and received detection result of the expert testimony that had been communicated to the defendant, but the defendant’s objections to the report were not claiming that, without prejudice to the rights agreement dated 30.60.2010 the surplus on sale of real estate on termination of the sales price, which is an 102,000,00 TL with legal interest from the date of the refund to process the payment, but not less than the amount specified in the determination report to deduct a certain amount from the sales price at the expense of the property pays the commission due to the sale and purchase of real estate, land costs, mortgage interest, attorney fees, including treatment costs 5.000,00 TL financial, emotional harm to be suffered 5.000,00 TL non-pecuniary damages from the defendant is asked to decide on the collection.
The defendant requested the rejection of the case, arguing that the apartment in question is a semi-basement, the main real estate was built according to the zoning and construction technique 35 years ago, the year it was built, the plaintiff visited the apartment 3 times under the supervision of a realtor, there was no matter hidden from the buyer.
Based on the expert report, the court decided to dismiss the case on the grounds that the defendant was not responsible for the hidden or obvious shame caused by the lack of a drainage channel with the basic bundling insulation of the building; the verdict was appealed by the plaintiff.
The basis of the case is Article 217 of the Code of Obligations. according to Article 202 of the BK. it is a substance. Accordingly, “When the shame of the seller under the seller’s monopoly is understood, the buyer is responsible; if he wishes, he sues the termination of the sale by declaring that he is ready to reject the one sold, if he wishes, he detains the one sold and holds the semen in return for its lack of value. If the judge does not declare the termination of the sale in accordance with the buyer’s refusal to sell the case, he may be charged with the tendering of the semen. If the deficiency of the asset is available for the semen of the seller, the buyer can only request the termination of the sale. it is said that “. As explained, in accordance with the provisions of the monopoly on shame, the buyer, when the shame is understood, can exercise the right of termination if he wishes, or ask for a price reduction if he wishes. According to the fact that the secret defect of the apartment subject to the case is fixed both by the detection report and the expert report obtained as a result of the discovery made by the court, the court should evaluate the claimant’s priority request for termination and make a decision in accordance with the result that will result, on the contrary, it was decided to dismiss the case in writing with thoughts contrary, it is contrary to the procedure and law …”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and returning the file to its place.
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:
The case is related to requests to return from the real estate sale contract due to shame, to make a discount on the price if it is not, and to receive material and non-pecuniary compensation.
The defendant uses the plaintiff’s attorney himself in an apartment on the ground floor Üsküdar 30.06.2010 102,000,00-TL price for the homes that sold is delivered to the plaintiff on 05.08.2010 client if the client pre-contractual negotiations, the defendant is asked whether the humidity in the apartment, the defendant myself sitting in the apartment for long years, without any moisture or water that declares the event of discharge that is not in question, but first taking moisture from the walls of the apartment in the rain, the rain water and the paint was bubbling up, his client’s situation was reported to the defendant, but the defendant said that there was nothing to do, this is Üsküdar L. 2010/101 D of the Magistrate’s Court.That it was identified with the business file, that the expert’s damage and damage were caused by hidden shame; of the cost of repair 25.000,00-TL, elimination of the period was determined as 2.5 months with the statement that the termination of the sales agreement dated 30.06.2010 with legal interest from the date of payment of the sales price or to return to the client with the detected file to process determined by the expert in the amount of not less than the amount to deduct the expense from the sale of equity within specific measures, pecuniary and non-pecuniary damages to the collection of demand and the decision has prosecuted.
The defendant’s Attorney, his client’s premises move his aunt, was sitting with his wife and two children for about 2,5 years, 35 years ago, according to the technique of construction terms and an independent section of the building, constructed semi-basement floor the apartment of selling through a real estate broker if it is offered, the buyer is visited three times the plaintiff’s apartment, and that they do not hide no matter from which, the plaintiff moved by dyeing the day before the sale of the apartment, the basement of the immovable is in contact with the outer wall of the soil, hidden or open drainage and protective jacketing can be assessed in lieu of the lack of shame wall, the recipient’s location at knowing and seeing the real estate taken by a problem to be solved within the framework of the plaintiff’s condominium whole trouble is that there is a problem with the interior of the apartment, whether regarded as a public field, the exterior walls of the building owners, management or floor waterproofing can be done with the decision of the board, defended the dismissal of responsibility by announcing that according to the plot.
The court considers that the apartment subject to litigation is the basement of a very old building, that the buyer should consider and anticipate in the conditions of our country that the building may get damp and flood when buying such a real estate, that there is insufficient evidence that the defendant misled the plaintiff before buying, that the witnesses’ statements do not constitute sufficient evidence due to the fact that the plaintiff is very close, on the contrary, it was decided to dismiss the case on the grounds that there was no reason to cancel the sale process when the location of the building and the sale price were taken into account with the statements of the defendant witnesses who made a statement, and the decision was overturned on the appeal of the plaintiff’s attorney, by the Special Department on the grounds contained in the title section above.
The court decided to resist by expanding the previous justification.
The decision to resist was appealed by the acting plaintiff.
The dispute that comes before the General Assembly of the Law through resistance is brought to the point of whether the independent part subject to sale is a secret shame, whether the defendant is liable for damages in accordance with the provisions of the monopoly against shame, whether the plaintiff’s request to withdraw from the contract should be evaluated according to the conclusion to be reached here.
The provisions of the Code of Obligations No. 818 (BK) in force at the date of the incident (müga) must be applied to the dispute.
182 Of the Code of Obligations of the contract of sale. in its article, it is defined as “the sale is an agreement whereby the seller tolerates the debt of delivering the semen to the buyer and transferring the property to him in exchange for the semen that the seller favors”. A contract of sale is a synallagmatic, in other words, a contract that imposes mutual obligations on both parties. In full two-sided contracts, various side and secondary actions are loaded with an original action on both sides against each other. In other words, these contracts, by their nature, oblige each of the parties to be a creditor and debtor. Each of the parties is in debt to obtain counteraction. In addition to the seller’s obligation to deliver the goods and transfer ownership to the buyer, there is also an obligation to ensure that the seller is free of defects.
At this point, it is useful to focus on the concepts of “shame and shame against tekefful”, which form the basis of the dispute:
The legal regulation on the fault is established by Article 194 of the Code of Obligations No. 818, which must be applied in respect of the dispute subject to litigation. it is included in the article. “The seller is obliged to ensure that the goods sold against the buyer are found safe from any defects that affect their value or maximum interest for a material or legal reason, as well as the mentioned and promised qualities, or in a significant way. Even if the seller does not know about the existence of these defects, he is responsible for them. it is said that “.
In the teaching, shame is defined as a state of absence or absence of a feature that should not be present at the time of the damage, in other words, the promised qualities, or the absence of the necessary qualities expected from it in accordance with the impulsivity rule, and is classified as material, legal or economic shame. Material shame is the presence of material error in a product. (for example, if the product is torn, broken, damaged, stained). Legal disadvantage is that the use of the property is legally limited (such as there are restrictions on the property such as pledge, lien, usufruct). The economic shame is that there is a lack of economic qualities of the good.
The other classification of the shame is made according to whether the shame is open or hidden. Open shame is a shame that can be detected immediately at first or with a superficial examination. It is a shame, a hidden shame that the situation makes necessary, which cannot be understood by examination. If the buyer is not obliged to investigate hidden defects, he should immediately report it as soon as the defect occurs (DOMANIC, H.: Turkish Commercial Code Commentary, C.I, Istanbul 1988, p.155;YAVUZ, N.: Defective Performance, 2.b., Ankara 2010, p. 107;KARAKAŞ, C.F.: Duration and Form of Denunciation of Impropriety in Commercial Sale, XXII. Symposium on Commercial Law and Supreme Court Decisions, Ankara 2006, p.172). If the buyer has been seduced, that is, the shame of the goods has been deliberately hidden from him, the solution provided for by Law entails an aggravated liability from the seller’s point of view. As a matter of fact, Article 200 of the Code of Obligations No. 818. according to Article (225 of the Turkish Code of Obligations No. 6098. according to the article ), the seller who has seduced the buyer cannot get rid of the responsibility by claiming that the shame was not reported to him in time.
After these general statements about the shame, it should be noted immediately that the seller’s responsibility for the shame is also called “tekeffül against the shame”. 202 and 203 of the Code of Obligations to the buyer in the event that the conditions of monopolization against the bearer are fulfilled. electoral rights are recognized in its articles. Accordingly, the buyer may return from the contract, as well as request that the semen be downloaded or replaced with the product in a shameless manner. Regulations on consumer protection are also adopted, according to which the buyer has the right to request the repair of the goods ( 6502 p. The Law on Consumer Protection m.11/c).
It is not necessary that the seller is defective in order to apply the rules of monopolization against the bear. Indeed, according to the provision of the second paragraph of Article 194 of the Code of Obligations, the seller is responsible for them even if he does not know about the existence of defects.
If the buyer has fulfilled the obligation of notification, the burden of proof that the buyer now knows or should know about the shame belongs to the seller. Because in this way, the seller legally disclaims any responsibility that falls to him.
As for the concrete incident; the plaintiff stated that he had first returned from the sales contract, claiming that “hidden decency” had arisen later in the independent section on the subject of the real estate sales agreement concluded between the parties. The subject of the case is fixed by the expert report submitted to the evidence determination file, which is a secret shame of the independent section, and the expert report prepared after the discovery made by the court. The plaintiff also used the right of choice arising from Article 202 of the Code of Obligations on the way back from the contract due to hidden shame. As such, it is not right for the court to decide to dismiss the case on the grounds that the defendant cannot be held responsible for the hidden shame, while the request to return, which is the plaintiff’s priority request, should be evaluated and the appropriate decision should be made in accordance with the result that will be obtained.
In that case, considering these material and legal facts mentioned, it is necessary to comply with the decision to overturn the Special Chamber adopted by the General Assembly of Law, while resisting the previous decision is contrary to the procedure and law.
Therefore, the decision to resist must be overturned.
CONCLUSION: It was decided unanimously on 29.03.2017 that the decision of the plaintiff’s deputy to resist the acceptance of appeals would be OVERTURNED for the reasons shown in the decision of the Special Chamber to overturn, that the fee in advance of the appeal would be returned to the depositor if requested, and that the way to correct the decision would be open.
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