Decision On Contract Cancellation Case

06 Mar Decision On Contract Cancellation Case

T.C. SUPREME

19.Legal Department
Principal: 2003/10736
Decision: 2004/7671
Decision Date: 25.06.2004

CASE FOR CANCELLATION OF THE CONTRACT – REQUEST FOR CANCELLATION OF THE RIGHT TO USUFRUCT – IF THE SUBJECT OF THE CONTRACT IS IMPOSSIBLE FROM THE BEGINNING, THE CONTRACT WILL BE NULL AND VOID – THE RIGHT TO USUFRUCT ESTABLISHED ON THE BASIS OF THE SUPERSTITIOUS CONTRACT IS INVALID – THE PROVISION IS UPHELD

Abstract: the court decided to accept the main and combined case on the grounds that if the subject of the contract is impossible from the beginning, the contract will be void, the construction of fuel oil and service station on the real estate subject to the contract is not in accordance with zoning legislation, the right to usufruct established on the basis of the superstitious contract is invalid because the underlying contract is superstitious.

(818 P. K. m. 20)

Sue: joined between the parties over the removal of the right of usufruct of immovable cancel the contract and at the end of the trial of the case, ref written reasons given for the adoption of both the case upon appeal by the defendant within the period of the provision by counsel, the file is examined, was spoken by.

Decision: the plaintiff’s attorney on immovable property belonging to the client with a contract between the parties dated 5.10.1992 service and sales to the station, it was decided that fuel be made, and that if it fails to obtaining required permits and Licenses, business registration agreement and a roommate agreement with the defendant to be done with the receipt of the aforementioned protocol, the front is prepared, signed, required for obtaining licenses and permits what the application does, however, the position where the real estate is located, according to the zoning law, it is not convenient to build a gas station, so the performance of the contract is legally and de facto impossible, the defendant has established a mortgage on the real estate in his favor when there is nothing, and also established a usufruct right, and even made the plaintiff pay the usufruct price, according to the contract, the plaintiff company only 200.000.000.TL credit 600.000.000.TL claiming that it was collected, he demanded and sued for the decision to terminate the contract and abolish the right to usufruct, since there was a legal impossibility from the very beginning from the fulfillment of the contract.

In response, the defendant’s attorney stated that the case is derdest, that the Bakırköy courts are authorized as of the location of the real estate subject to the lawsuit, that the dispute subject to the lawsuit does not fall within the scope of the Commercial Court of First Instance, that the right to usufruct subject to the lawsuit was established in accordance with the law in the deed in favor of the client company with the number 11611 of 16.12.1992, 16.12.1992 with undertaking given by the lawyer of the plaintiff dated the fuel stations to be constructed on the land subject of the contract, authorization and permission, otherwise it would take all of their 1.4.1993 the latest until the date near the time of the Giving of the loan that you have taken the CBT to accept payment in US dollars, based on the buying rate of the American dollar, the defendant company were dishonoured a pink slip, despite the act of the plaintiff, he didn’t borrow given as to 200,000,000 GBP worth.Made of enforcement proceedings on paid TL, plaintiff’s 3.4.1996 on his 600.000.000.The plaintiff’s undertaking that the receivable was under a lot of TL does not perform the act in the following subject with other prejudice to the rights of the mortgage recording to come fekkedild client if the company’s actual damages were not met, as if the plaintiff pay the cost of usufruct, mortgage fek usufruct in favor of the company have been established for 25 years with the right client relationship cannot be established between a dismissal of the case by arguing that muddetli requested. According to the contract concluded with the defendant company, the attorney of the plaintiff requested and sued for the deletion of the usufruct right established in favor of the defendant company, since there was a legal impossibility in terms of the zoning law in the establishment of oil fuel oil and service station on the real estate and the defendant did not have any monetary debts.

According to the court’s claim, defense and collected evidence and expert report, BC.nun 20/1. the subject of the contract if the contract in accordance will be null and void from the beginning is impossible, immovable fuel service stations and the environment by building codes subject of the contract does not comply with the contract, or from the date of judgment until the date of permits and licenses required to take pursuant to the contract of the plaintiff and he couldn’t get fuel sales to build the station, despite the long period since they could not fulfill their obligations, the contract between the parties, which is determined by the relationship cannot be established and the expected benefit for both sides is not provided, at the time of conclusion of the contract, the subject is superstitious because it is impossible, and on the grounds that the usufruct right established on the basis of the superstitious contract is invalid because the underlying contract is superstitious, the decision was taken to accept the main and combined case, and the provision was appealed by the defendant’s attorney.

Conclusion: according to the articles in the file, the evidence based on the decision and the necessary reasons, the lack of a hit in the evaluation of the evidence, the refusal of all appeals not seen in place of the defendant’s attorney to uphold the provision found in accordance with the procedure and law, the removal of the approval fee written below from the appellant, was unanimously decided on 25.06.2004.