Decision Of The Supreme Court On The Case Of Cancellation Of The Contract And Receivables

06 Mar Decision Of The Supreme Court On The Case Of Cancellation Of The Contract And Receivables

T.C. SUPREME

23.Legal Department
Basis: 2012/2464
Decision: 2012/5486
Decision Date: 27.09.2012

CANCELLATION OF THE CONTRACT AND CLAIM FOR RECEIVABLES-THERE IS NO ROOM FOR A DECISION TO BE MADE ON ABANDONING THE CLAIM FOR RECEIVABLES – DECISION TO REJECT THE CASE FOR TERMINATION OF THE CONTRACT-DECISION TO REJECT THE CASE OUTRIGHT IN THE REASONED DECISION – VIOLATION OF THE PROVISION

SUMMARY: in a concrete case, termination of the contract with the petition, commentary on the cancellation of the immovable, and so far, TL prompt to the collection of accounts receivable relating to abandoned atıye made during the trial, the trial of a decision given in brief in the case in relation to a decision that there is no place for receivable atıye rejection and termination of the agreement regarding the denial made a decision in a reasoned decision, the case completely dismissed. In this case, a different provision was established with a reasoned decision than a short decision. In this case, the court had to overturn the provision in order to make a new short and appropriately reasoned decision, without adhering to this short decision, within the framework of the decision of the Supreme Court to combine case law.

(2709 P. K. m. 141) (1086 P. K. m. 294, 381, 388, 389) (6100 S. K. m. 294, 298)

Case: at the end of the trial of the cancellation of the contract between the parties and the receivables case, the call paper was sent to the interested parties after the decision to dismiss the case for reasons written in the ad was appealed at a hearing by the attorney of the plaintiff. On a certain day, the attorney of the plaintiff Attorney  S. A. with the defendant’s attorney Attorney A. U.after hearing the oral statements of the lawyers who were present when the hearing began and it became clear that the appeal was pending, the file was reviewed, discussed and considered.:

Decision: the plaintiff’s attorney defendant’s Yenimahalle District of Ankara, between the contractor with his client, Alacaatli Dark Yerlidag Position, in relation to immovable 38.000 M2 M2 plots in part 515 of Kain 108.250 05.06.1995 plot and a construction contract has been signed, dated 8 months after when you decided to begin construction within the zoning regulation of the deed, that begin construction after a time of 16 months, citing the aforementioned termination of the agreement, in the commentary on the immovable abandonment and now 7.500,00 TL wanted to give the collection of decision, during the trial, he abandoned his request for what he would receive.

The defendant’s attorney requested that the case be dismissed.

According to the scope of the claim, defense and file, the court decided to dismiss the case on the grounds that the plaintiff dismissed it on 26.03.1996 before the regulation of zoning deeds from the duty of attorney dated 05.06.1995, which he gave to the defendant’s official for the purpose of fulfilling the requirement of the contract, and therefore the defendant could not obtain a building license.

The decision was appealed by the acting plaintiff.

1-after all the evidence of the parties has been collected and examined and the last words have been heard and the hearing has been declared over, the judge must write the decision in accordance with Article 388 of the Humk (298/3 of the HMK) together with the justification and interpret the result of the sentence in the form provided for in Article 389 of the humk (294/3 of the Humk). However, in practice, based on the provision of paragraph 381/last of the Humk (294/4 NCI of the HMK), only the result of the provision is passed to the minutes for mandatory reasons and the reasoned decision is written later.

In such cases, a reasoned decision must be written in accordance with the short decision that clearly shows the rights and obligations of the parties in accordance with Article 389 of the Humk (294/3 of the HMK), as well as a public and legal entity. In fact, the judge who wrote the short decision and withdrew his hand from the case by tefhim is no longer legally able to change this decision. In Article 298/2 of the HMK, the reasoned decision cannot be contrary to the conclusion of the provision. On the other hand, the fact that the reasoned decision with the short decision is contradictory or different creates a situation that contradicts the publicness of the trial, the public interpretation of the decisions, as well as Article 141 of the Constitution and the domineering articles of the Humk and HMK mentioned above. In addition, the aforementioned issue is related to public order, and its supervision is an assignment assigned to the judge by law. Contrary thought and practice are incompatible with the principle that the judiciary, the judge and his decisions are far from any thought, respected and reliable.

In a concrete case, termination of the contract with the petition, and is currently commentary on the cancellation of the immovable 7.500,00 TL prompt to the collection of accounts receivable relating to abandoned atıye made during the trial, the trial of a decision given in brief in the case in relation to a decision that there is no place for receivable atıye rejection and termination of the agreement regarding the denial made a decision in a reasoned decision, the case completely dismissed. In this case, a different provision was established with a reasoned decision than a short decision.

In this case, the court, within the framework of the decision to merge the case law of the Court of Cassation No. 1992/4, based on day 10.04.1992 and 1992/7, it was necessary to break the provision in order to make a new short and appropriately reasoned decision without adhering to this short decision.

2-according to the reason for the violation, the appeals of the attorney of the plaintiff do not need to be examined for now.

Conclusion: for the reason described in Paragraph 1 Above, It was decided unanimously on 27.09.2012 that there is no room for the review of the appeals of the plaintiff’s attorney, for the reason described in Paragraph 2, to return the advance expenses on request, to pay the plaintiff the trial attorney fee of us $ 900.00 from the defendant and to correct the decision within 15 days from the notification of the decision.