Republic of Turkey
Supreme Court of Appeals
General Assembly of Law
2011/19-841
2012/144
March 14, 2012
Article 4721/m.684
Article 2918/m.20
CASE: Following the trial in the case of “annulment of objection” between the parties; upon the request of the defendant’s attorney for the review of the decision dated May 1, 2008, numbered 2007/466 E.-2008/314 K., issued by the Tuzla 1st Civil Court of First Instance, which partially accepted the case, the 19th Civil Chamber of the Supreme Court of Appeals, with its decision dated February 18, 2010, numbered 2009/3729 E.-2010/1695 K., ruled as follows:
(…The plaintiff’s attorney claimed that a contract was made between the parties to sell the minibus belonging to his client to the defendant for 25,000.00 YTL, with payment to be made in installments; that a final sales agreement was subsequently drawn up at the notary public, and the vehicle was registered in the defendant’s name; that the defendant paid a total of 17,069.00 YTL but did not pay the remaining 7,931.00 YTL to his client; and that the defendant unjustly objected to the enforcement proceedings initiated by his client to collect the debt. Therefore, he requested the annulment of the objection and a judgment for compensation for denial of execution.
The defendant’s attorney, in his response, stated that the case should be heard in the Bodrum Courts, where the requested execution file is located; that his client paid all due amounts and purchased the vehicle unconditionally, without any mortgage or encumbrance, through a final sales agreement; that the final sales agreement included a clause stating that the seller had “received full payment”; and that the subject of the lawsuit was irrelevant.) The defendant argued for the dismissal of the case and requested compensation in their favor.
The court, based on the claims, defenses, and collected evidence, determined that the vehicle in question was sold at a notary public. While the plaintiff, as the seller, stated in the final sales contract that they had received the full payment, the handwritten car sales contract submitted to the file between the parties stipulated that 14,729.00 YTL of the vehicle’s price would be paid in 13 equal installments of 1,133.00 YTL each. The defendant did not deny signing this contract, and thus, 7 installments totaling 7,931.00 TL of the vehicle’s price were not paid. The court further determined that the plaintiff had not issued a notice to the defendant before the enforcement proceedings, and that the objection to the enforcement proceedings was unjust and intentional. Therefore, the court partially accepted the claim, and the judgment was appealed by the defendant’s attorney.
The final sales contract dated May 15, 2006, included in the file, shows that the plaintiff had received the full sale price. The plaintiff stated that he received the property. The defendant, on the other hand, argued that he had paid the purchase price and requested the dismissal of the case. In this situation, the court should have dismissed the case, considering the formal sales contract made later, which stated that the purchase price had been fully received, as the earlier contract was made in an ordinary manner. However, the court’s decision to accept the case with the written justification is incorrect, and the judgment must be overturned… ),
The case was remanded for retrial, and after a new trial, the court upheld its previous decision.
After the Supreme Court of Appeals examined the case and determined that the appeal against the resistance decision was filed within the time limit, and after reviewing the documents in the file, the following was considered:
DECISION: The case concerns a request for the annulment of an objection.
The court partially accepted the request.
Upon the appeal of the defendant’s attorney, the Special Chamber overturned the decision with the reasoning shown in the heading section above.
The court upheld its previous decision and brought the judgment to appeal.
The dispute is; The case centers on whether the defendant buyer paid the plaintiff seller the full agreed price for the vehicle, according to the written protocol and the formal contract notarized between the parties regarding the sale of the vehicle.
The Turkish Civil Code No. 4721 (TMK) regulates movable property in its third section, following immovable property. However, unlike immovable property, the Code only sets out rules regarding the subject matter, acquisition, and loss of movable property; it does not allocate any provisions to the scope and restrictions of this property.
This is because the scope of movable property is limited to the movable property that constitutes its subject matter and the things that form an integral part of that property according to Article 684 of the TMK. There is no reason to require any other rules in this regard.
The restrictions on movable property arising from the law, leaving aside those based on public law (in this context, the Law on Firearms and Knives, the Highway Traffic Law), consist of restrictions covering all kinds of rights, such as the abuse of rights, from the perspective of Civil Law. (Oğuzman K., Seliçi Ö., Özdemir S.O., Property Law, Filiz Bookstore, Istanbul, 2009, pp. 586 et seq.)
One of the restrictions based on public law is Article 20(d) of the Highway Traffic Law No. 2918, which states: “All types of sales and transfers of registered vehicles shall be carried out by notaries based on the registration certificate or traffic registration records issued in the name of the vehicle owner; all types of sales and transfers not carried out by notaries shall be invalid; the sale and transfer transaction shall be reported to the relevant traffic registration authority and tax office within three working days for registration in the registry; with this notification, the traffic registration process in the name of the buyer shall be deemed completed.”
While a price is specified in sales contracts made at a notary, it is a known fact from practice that the sale price (insurance value) in the final sales contract is automatically determined according to the vehicle model and age, and the price declared in the final sales contract is stated by the parties to avoid contradicting this price.
If this price is not stated correctly, it is important to determine which price should be considered if the sale price stated in the final sales contract is lower or higher than the stated price. In resolving disputes that may arise here, it is necessary to utilize the provisions regarding collusion.
As is known, collusion is when the parties to a contract, with the aim of deceiving third parties, conceal the true situation and agree on something that does not conform to their true intentions and is invalid between themselves; transactions carried out in this way are called collusive transactions. (Supreme Court of Appeals, February 9, 2005, 2005/1-19 E, 2005/42 K; June 16, 2010, 2010/1-281 E, 2010/323 K).
In collusion, there is always a legal transaction that appears to exist but is never actually desired by the parties, and is carried out solely to mislead and deceive third parties, along with a collusive agreement between them stating that this transaction is invalid. In some cases, in addition to these two, there is a hidden transaction that corresponds to the true intentions of the parties (what the parties actually want), but which they conceal behind the apparent transaction for various reasons. Depending on whether a hidden transaction exists between the parties, two types of collusion are discussed:
Absolute (simple) collusion occurs when the parties, while not intending to enter into any valid legal transaction between themselves, perform a transaction solely to give the impression to third parties that a legal transaction exists between them.
In contrast, in relative (qualified) collusion, although a legal transaction corresponding to the true intentions of the parties exists, this transaction is concealed by another legal transaction made outwardly, which does not conform to their intentions.
This type of collusion can occur in the nature, persons of the parties, subject matter, and conditions of a contract.
In the case of collusion in the subject matter and conditions of a contract, the apparent legal transaction corresponds to the true intentions of the parties. However, some terms and a specific part of the subject matter of the apparent transaction are regulated differently from the hidden transaction between them. In this type of collusion, while the parties change some terms of the apparent contract, the entire contract, i.e., its nature, is not the case; only some terms do not conform to the hidden contract. For example, showing a lower sale value of the immovable property in the land registry to pay less tax, or showing a higher sale price in the apparent (official) contract to prevent the exercise of the right of pre-emption and to gain more profit if it is exercised, constitutes this type of collusion. As explained, the parties seriously intend to enter into the apparent contract and agree on its nature (qualifications). However, the price is shown as less or more than the actual price. In other words, only the price of the apparent contract is changed. The collusion is in a part (an element) of the contract, not the whole (Özkaya E., İnançlı İşlem ve Muvazaa Davaları, Şekçin, Ankara 2011, p. 173).
Formal requirements are not sought in a collusive contract. It can be written or oral. Even if the apparent contract is subject to formal requirements, a collusive agreement does not need to be in writing or in an official form. If the apparent contract is subject to formal requirements, the rule that collusion must be proven by written evidence is a requirement not for the validity of the collusive agreement being in writing, but for its provability. (YİBK 5.2.1947, 1945/20, 1947/6) According to Articles 289 of the Code of Civil Procedure and 13 of the Code of Obligations, the party claiming the contrary of an apparent written contract is obliged to prove their claim with written evidence. Since a collusive agreement alters or invalidates the apparent contract, it must be in writing to gain probative value, as required by the explicit provisions of the aforementioned laws. For example, vehicle sales are subject to formal requirements. While the validity of a collusive agreement drawn up for an apparent transfer contract subject to formal requirements is not dependent on form, its proof is only possible with written evidence. (YİBK 5.2.1947, 1945/20-1947/6)
Regarding the specific case:
The plaintiff claims that he sold his minibus to the defendant for 25,000.00 YTL, with an agreement that 10,271.00 TL would be paid in cash by January 31, 2006, and the remaining amount in installments. He further claims that the vehicle was registered in the defendant’s name with a definitive sales contract, that the defendant paid 17,069.00 TL, and that due to the non-payment of the remaining 7 installments totaling 7,931.00 TL, he initiated enforcement proceedings against the defendant through the Bodrum 2nd Enforcement Office under file number 2006/1631. He alleges that the proceedings were halted due to the defendant’s objection and requests the annulment of the objection, the continuation of the enforcement proceedings, and a 40% enforcement denial compensation.
It is undisputed that an undated protocol, drawn up privately between the parties, stated the sale price as 25,000 TL, and that based on this protocol, the defendant paid a total of 17,069.00 TL (10,271.00 TL in cash and 6,798.00 TL via bank transfer), while the official sales deed dated May 15, 2006, shows the sale price as 16,387.00 TL.
Furthermore, the defendant has not raised any objection regarding the non-existence of such a protocol.
The dispute centers on whether 7,931.00 TL has been paid.
As is known, the fact that the sale price is shown as 16,387.00 TL in the notarized sales contract stems from the fact that a price determined based on the minimum insurance value, according to the model and age of the vehicle at the time of the notarized sale, was used as the basis; the inclusion of this price in the notarized deed does not invalidate the contract between the parties.
The parties seriously intend to enter into the apparent contract and agree on its nature. Only the price of the contract is being changed. Here, the collusion occurs not in the entire contract, but in a part of it, the price element.
As explained above, while the transfer of registered movable property is subject to formal requirements, the validity of a collusive contract drawn up for an apparent transfer contract subject to formal requirements is not subject to formal requirements; however, proof will be possible with written evidence.
Since the protocol presented by the plaintiff was not denied by the defendant, the plaintiff has proven with ordinary written evidence that the movable property was sold for 25,000.00 TL, and that they received 17,069.00 TL in cash and through a bank. Thus, since the plaintiff has proven the collusion in the price and that the sale price was 25,000.00 TL, the burden of proof that the entire amount stipulated in the written contract was paid, i.e., that the remaining 7,931.00 TL was paid, now rests with the defendant.
Furthermore, given that the protocol between the parties stipulated a price of 25,000.00 TL and that partial payments would be made, and the defendant did not object to this protocol, it is clear that the sale price of 16,387.00 TL stated in the notarized sales contract is not the actual price, and that the sale price is the one stated in the protocol, which the defendant did not object to, and this is also acknowledged by the defendant.
It should be noted immediately that it is not possible to accept that the plaintiff received only the price stated in the notarized sales contract. Because, if it were accepted that the plaintiff received the 16,387.00 TL price in the sales contract, considering the cash payment, the installments paid through the bank, and the price written in the notarized sales contract, the total price would exceed even the price in a simple written sales contract. Therefore, it should not be accepted that the price shown in the notarized sales contract was received by the plaintiff; the fact that the sale price was shown as 16,387.00 TL should be considered a price determined by the system, not by the will of the parties.
Therefore, the transaction has gained validity in accordance with Article 20 of the Traffic Law No. 2918 regarding the transfer of movable property. The buyer’s failure to fully fulfill their obligation arising from the price cannot alter the legal outcome arising from the official contract. The non-payment of a portion of the actual price stated in the written promissory note will give the seller the right to demand the collection of the unpaid portion. The burden of proof that this amount was paid rests with the defendant, as explained above.
Therefore, the dissenting decision pointing to the same issues is appropriate and correct.
However, since the defendant’s attorney’s other appeals concerning the merits of the case, including the awarded price, were not examined by the Special Chamber, the file should be sent to the Special Chamber for examination in this regard.
CONCLUSION: For the reasons explained above, the decision to resist is deemed appropriate; and it was decided by majority vote on March 14, 2012, to send the file to the 19th Civil Chamber for examination of the defendant’s attorney’s other appeals concerning the merits of the case, including the awarded amount.