General Assembly of the Law 2016/245 E. , 2016/330 K.
“Text Of Jurisprudence”
COURT :Consumer Court
At the end of the trial held due to the “receiv Dec” case between the parties; Istanbul 3. 26.10.2010 day and 2007/334 E, which were issued by the Consumer Court regarding the acceptance of the case. – 2010/820 K. upon request of the defendant’s deputy to examine the decision No. 13 of the Supreme Court.16.03.2012 days and 8732/2011 e of the Legal Department., 2012/6821 K. by his numbered decision;
“The plaintiff, the defendant signed a preliminary agreement to sell dated 1.10.2002 with housing, the residence of months ago 49 subject of the contract the defendant had delivered a cease and desist letter dated 12.4.2006 upon payment of the full cost of the tabernacle with the agreement following termination for good cause, despite the warning, of the defendant’s unjust occupation still continues that of the convention, 9/F, in accordance delivered to your home in the event of termination of the contract until the date of the sale price of 2% monthly usage fee shall be payable in respect of citing that it was agreed that, provided that the rights of the surplus are reserved, the cost of use of the dwelling from the delivery date to the termination date in accordance with the provisions of the contract is determined, according to the provisions of the contract from the termination date to the trial date is currently 7.500TL and the defendant has requested the collection of 5.000TL for the time being due to wear and loss of the dwelling; with the reclamation petition dated 23.8.2010, he has increased his request to 100.000 TL.
The defendant has requested the dismissal of the case.
The court decided to collect the ecrimisil price of TL 100,000 from the defendant, provided that the plaintiff’s rights to the surplus were reserved, with the acceptance of the case on the grounds that the contract is valid due to the formal execution of the contract, the defendant must pay a monthly usage fee of 2% of the upfront sale price of the housing in accordance with Article 9 /f of the contract; the provision was appealed by the defendant.
The plaintiff, claiming that the defendant did not pay the full cost of the housing in accordance with the contract of sale of housing that they signed with the defendant, therefore they terminated the contract, filed the lawsuit with the request to collect the monthly use price from the defendant at the rate of 2% of the sale price in accordance with article 9 / f of the contract due to the justified termination. The court has decided to accept this request.6. Amendments to the Law No. 4822 of the Law No. 4077 on Consumer Protection. the unfair condition in the contracts is regulated by the article and states that “The contractual conditions that the seller and the provider enter into the contract unilaterally without negotiating with the consumer, which cause an imbalance against the consumer in such a way that the parties contradict the rule of good faith in the contractual rights and obligations, are an unfair condition. The unfair terms contained in any contract created by the consumer, one of the parties to which is the consumer, are not binding on the consumer. If a contract condition has been prepared in advance and has not been able to affect the content of the consumer, especially because it is included in the standard contract, it is accepted that this contract condition has not been negotiated with the consumer. If, from the evaluation of the contract as a whole, it is concluded that it is a standard contract, the fact that certain elements or an individual provision of a condition in this agreement have been negotiated does not prevent the application of this article to the remaining part of the contract. If a seller or provider claims that a standard requirement has been discussed individually, the burden of proof rests with it …” with the provision of Law 4077 amended 6. and 31. article 7 of the Regulation on Unfair Conditions in Consumer Contracts prepared on the basis of its articles. in its article, the provision ”unfair terms used by the seller, provider or lender in the contract concluded with the consumer are false” is introduced.
A Contract of Promise on the Sale of Housing dated 1.10.2002 was Dec between the parties. Article 9 / f of the contract contains the provision “… The buyer will pay Sinpaş a monthly rental fee of 2% of the total sale price of the housing for its use within the periods to be considered as rent in accordance with the provisions of this article from the date when Sinpaş discovered the notice of termination of the contract …”. Considering the provisions of the laws and regulations described just above, it is necessary to accept that this provision of the contract is an unfair condition. In this case, the defendant consumer cannot be held responsible for the provision of the said contract. So, while the court should have decided to reject this request, the incorrect assessment is the reason for violating the provision in writing, contrary to the procedure and law …”
the grounds were overturned and the file was returned to its place, but at the end of the retrial, 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:
The case is related to the claim of receivables.
The dispute between the local court and the Private Department is being collected Dec the Dec of whether Article 9 / f of the contract between the parties is an unfair condition and, proceeding from this, whether the defendant-consumer can be held responsible for the cost of use that will be calculated in accordance with this article.
According to the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons explained in the decision to overturn, the decision to overturn the Special Chamber adopted by the General Assembly of Law must be followed, while resisting the previous decision is contrary to procedure and law.
The decision to resist for the reason described must be overturned.
CONCLUSION: It was decided unanimously on 16.03.2016 that the decision of the defendant’s deputy to resist the acceptance of the appeals was OVERTURNED for the reasons shown in the decision to disrupt the Special Chamber.
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