Since The Plaintiff Does Not Have a Request According To The Turkish Code Of Obligations, The Case Must Be Dismissed By The Court

16 May Since The Plaintiff Does Not Have a Request According To The Turkish Code Of Obligations, The Case Must Be Dismissed By The Court

Supreme Court of the Republic of Turkey 15.Legal Department Basis: 2017 / 4843 Decision: 2019 / 2993 Decision Date: 26.06.2019

Abstract: the court cannot prove the claim that the plaintiff’s claim that akdin himself became impossible to perform without his fault, that the defendant waived the power of attorney so that the owner of the land would not use his powers in the power of attorney provided to the plaintiff’s official, that the parties ‘ will to return from the contract was not consistent, and that the plaintiff’s Tbk 137 and 138. according to their articles, the decision to dismiss the case should be decided if there is no request, while the result of the incorrect evaluation was not partially accepted and the decision was found appropriate to be overturned.

(6098 P. K. m. 136, 137, 138) (492 P. K. m. 42)

Case: the date and number of the above written provision was requested by the defendant’s attorney to review the appeal at trial, but the plaintiff’s attorney did not show up on the day appointed for the hearing. Counsel acting defendant…. She came. After it became clear that the appeal was granted within the time limit and the defendant’s lawyer was heard, due to the lack of time, the work was examined and the decision was left to another day. This time, after reading the papers in the file, the need for work was discussed and considered:

The case relates to the request for collection of expenses, loss of profits and compensation receivables incurred due to the inability to perform the construction contract in exchange for a share of the land. The court’s decision on the partial acceptance of the case over US $ 689,058.88 was appealed by the defendant’s attorney.

1-according to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, it is possible for the defendant to file a separate lawsuit in case of compensation for delay, rent paid to the moved house, the cost of repair of damage and destruction caused, as well as the conditions for leaving the comment, other appeals that fall outside the scope of the following Bend have not been seen on the spot, they have been rejected.

2-plaintiff contractor, defendant is the land owner and between the parties … province,… district, 2767 Island 5 parcels for the construction of floors on the land … 57. 16.10.2014 day in notary public office, 38802 in the form of Regulation No.of the sale of Real Estate and land in exchange for the construction contract was organized and signed.

In the case of the plaintiff contractor, the defendant claimed that the land owner did not want to deliver the real estate empty, constantly made new requests, did not approve the research projects on an unfair basis, prevented the performance of the contract with a contrary and bad approach, and demanded compensation for the cost, negative damages, criminal conditions and loss of profits paid in addition to the contract due to the impossibility of performance.

Defendant land owner in response petition and defense in stages, the case is rejected, but 27.06.2016 declaration petition does not mean acceptance of delay compensation, loss of rent, losses caused by non-delivery during the period and damage caused by the repair of the damage caused in the building in exchange for the amount of damages from the contractor will receive swap and Offset. The defendant has no express or implied declaration that the landowner has terminated the contract or that the execution of the contract has become impossible.

Impossibility of performance is regulated in articles 136 and continuation of TBK No. 6098 136. Article 137, if the performance of the debt becomes impossible for reasons that the borrower cannot be held responsible, the debt will end, the parties will want back what they have given. in case of partial impossibility in Article 138, the debtor will be freed from the debt in the part that is only impossible. in the article, it is stated that due to excessive performance difficulties, the performance of the debt will become impossible, and accordingly, the borrower has the right to request that the contract be adapted to new conditions, and to return from the contract if it is not possible. In the justification of the court’s decision, the claims that the plaintiff contractor made it impossible to perform akdin due to the fact that the land was not delivered empty, the study projects were rejected without justification, and the subject of the lawsuit did not want to deliver the building were not seen on the spot, and the plaintiff did not request an appeal against this reason of the court.

Since construction contracts for land share also include the transfer of shares in the deed, termination is not possible when the parties unilaterally declare their will and reach the opposite party. A court order or the merger of the parties ‘ termination Wills may be terminated. In accordance with the contract, the dismissal of the trustee appointed by the land owner by the power of attorney provided to the contractor or his representative is not sufficient to tacitly accept that he has returned from the contract. Despite the dismissal of the power of attorney, the contractor can file a lawsuit against the land owners, requesting and granting the powers necessary for the execution of the akdin in the power of attorney, which is avoided and dismissed, even though it must be done by the land owner in accordance with the contract.

In this case, the court cannot prove the claim that the plaintiff’s claim that the akdin itself becomes impossible to perform without his fault, the defendant’s dismissal of the power of attorney so that the owner of the land does not use his powers in the power of attorney provided to the plaintiff’s official, is not in the nature of returning from the contract, the parties ‘ will to return from the contract does not match, and the plaintiff’s Tbk 137 and 138. according to their articles, the decision to dismiss the case should be decided if there is no request, while the result of the incorrect evaluation was not partially accepted and the decision was found appropriate to be overturned.

Verdict and Conclusion: 1 above. rejection of the defendant’s other appeals for the reasons described in Paragraph 2. in accordance with bent, the provision is broken for the benefit of the defendant,the trial attorney’s fee of us $ 2,037.00 is taken from the plaintiff and given to the defendant, who is represented by the attorney at the hearing in the Supreme Court, Law No. 5766 11. in accordance with the amendment made by Article 42/2-d of the fees law, it was unanimously decided on 26.06.2019 that the Court of Cassation application fee of us $ 176.60 to be taken from the appellant, the appellant advance fee paid to be returned to the appellant in case of request, that the decision can be requested for correction within 15 days from the date of notification against the decision. (¤¤)