26 Feb THE DECISION OF THE SUPREME COURT OF CASSATION ON THE CASE OF COMPENSATION
T.C THE DECISION OF THE SUPREME COURT
13.law office
Base: 2017/ 5241
Decision: 2018 / 12169
Date of Decision: 17.12.2018
Case: At the end of the trial of the compensation case between the parties, the case was reviewed and considered by the defendants’ lawyer after the decision was made to accept the case for the reasons written in the application was appealed within the period of time dec
The plaintiff, the defendant, for his “…” from the project named C1-2 Blok D:16.01.2008 bought on 51 independent department, the tabernacle is delivered on 15.12.2008 if you own the home and public places for the defendant after the delivery of shame about the project itself as well as the need that has been reported by other owners have promised to the customers whether it is within the scope of fulfilling commitments, incomplete and defective work that is hidden by gross negligence and fraud by asserting that suffered damage due to deficiencies result in loss of property and premises and surplus value, without prejudice to the rights 15.000.00 on citing for now.TL TL total breeding 28.069.00 given during the trial of the defendant begged for the collection with a petition to be determined.
The defendants requested the rejection of the case, arguing that the plaintiff’s apartment was fully and completely delivered, that it was not found to be defective and incomplete, and that the liability for a defective notice was not fulfilled within the period of time.
By the court, in accordance with the regulations to disrupt the case with the acceptance of financial compensation variable part of 13,069 28.069 TL TL calculated by applying the rate of interest accrued from the date of breeding 20/02/2012 legal interests of defendants severally taken to be given to the plaintiff made a decision; judgment was appealed by the defendants.
1-Since the articles in the file have been ruled in accordance with the decision to overturn complied with by the court and it is no longer possible to examine the appeals of the complaints that have been finalized by excluding the shumulu of the violation, the defendants’ appeals that fall outside the scope of the following paragraph must be rejected.
2-The lawsuit relates to the claimant’s request to pay for the loss of value caused by the housing purchased by the plaintiff due to the work specified in the project and promotions submitted during the sale, but not performed in accordance with them or incomplete.
The defendants requested that the case be dismissed by informing them that it was not found to be shameful and incomplete, and that the report of shame was not made within the period of time.
Since the plaintiff is a consumer, the regulation on discrimination related to consumer law is part of Article 4 of the Law No. 4077 on Consumer Protection (TKHK). it is included in the article.
In the first paragraph of the aforementioned article; “the packaging on the label or in the manual introduction and promised by the dealer identified in the standard or quality and/or quantity or value or in terms of the consumer or purpose which is contrary to allocate that reduces or eliminates the benefits expected from it, financial, legal, or economic deficiencies that contains the defective goods or defective goods or services is considered a service.” it is said, and in the ongoing paragraphs, the formal conditions related to this are considered.
A shame is that one or more of the elements provided for in the law or contract have qualities that should be lacking or not.
As explained in detail above; 4 of the Law on Consumer Protection No. 4077, amended by Law No. 4822, which consists of the rights and obligations of the parties if the goods are defective, as well as the Law No. 4077.it has been clearly stated that the statute of limitations cannot be used if the error is hidden by a serious defect or trickery.
According to the article, the consumer will conduct the necessary examination (audit) about whether he is guilty of the goods and services provided to him, and as a result of this examination, he will inform the party of the contract that provides him with the goods or services within the notice period from the provision of the goods or services, the consumer will lose his legal rights based on the shame when the assignment of this notification (notice of shame) is neglected. TBK No. 6098.the 223rd edition on this topic. As stated in Article 198/2 of the Code of Obligations No. 818), failure to report a defect will result in the consumer accepting the goods or services subject to performance as they are, and the contrary of the assumption made in this direction cannot be proven in any way.
TKHK No. 4077, which is in force as of the date of the lawsuit.4th. article 2. according to the provision of paragraph; The consumer is obliged to notify the seller of obvious defects within thirty days from the date of delivery of the goods. In this case, the consumer has the right to withdraw from the contract, including the refund of the price, replace the goods with a defective one, or request a price reduction or free repair at a defective rate. The seller is obliged to fulfill this request, which the consumer prefers.
There is no provision in the Law on Consumer Protection on how soon hidden offenses will be reported to the seller. As such, Article 30 of the TKHK No. 4077. in accordance with article 6098 of the Turkish Commercial Code in force on the date of the case, since the settlement of the dispute is necessary in accordance with the general provisions, in cases where there is no provision in this law, the resolution of the dispute is required.the 223rd edition on this topic. according to the article, (198 of BK No. 818.article), the buyer is obliged to review the goods he has received in accordance with the usual course of work as soon as possible and notify the seller within the appropriate period of time when he sees a shame that requires the seller’s responsibility. If he neglects this, he is considered to have accepted the one that was sold. However, if there is a defect in the seller that cannot be revealed by the usual review, if this defect occurs later, if he does not immediately notify the seller of this situation, he is again considered to have accepted the seller along with this defect. Therefore, hidden faults should be reported immediately (as soon as possible in accordance with the honesty rule) within the statute of limitations of the case and after the fault has been revealed; if the fault is obvious or hidden, the information of the average (mediocre) consumer should be taken into account.
Considering the concrete case in the light of these explanations; 15.12 of the independent part that the plaintiff purchased on 16.01.2008 from the plaintiff. it is understood by the scope of the file that it was delivered in 2008 and that this case was opened on 09.06.2010.
Ruining any of the provisions by the court in the case of the missing sentence in our apartment requested by the defendants in relation to the work of social facilities and deficiencies shall be made if the project is completed this way, no subject will remain in place for a decision decide if this is the case that was given to this matter, and if there are still those who continue the construction of social facilities, the plaintiff whether or not it has a material impact resulting from the use of the property damage in the case of detecting the determination of a concrete, a reduction in the loss of this work, not made, and that if you have social facilities that will be made after the final, because of these, it is stated that the damage suffered by the plaintiff should be calculated according to the relative method and an appropriate decision should be made as a result. In this case, the decision on the violation issued by the court for the investigation was complied with and the expert’s report based on the decision was also; the project was not completed yet fully determined in situ during the case that market and commercial areas of overlap with the promised discovery, whether located in a messy structure, promised that belongs to a different site, they are not constructed in terms of size and location of these facilities are built on parcels 4 520 Island”… Family Health Center” Holding A. contractorSh. Although it has been assessed that the action was performed incompletely due to the fact that there is no medical facility owned by the defendants, the medical services in the 546 ada 2 parcel are sheds, no medical facility promised to the plaintiff has been built, the religious facilities and schools are at a distance from the subject of the lawsuit, the plaintiff cannot easily use and cannot be contacted with the site, and there is no document indicating that it was done by the defendants in the file; it is undoubtedly a clear shame that these were not done, which reduces the economic value of the independent part purchased by the plaintiff, the defendant did not resort to any tricks to hide this shame, the plaintiff can easily find out about these disadvantages at the time of purchase and delivery of the independent part. 4 of Law No. 4077 due to the independent section that the plaintiff has received. in accordance with the article, it is also understood that the defendant was not notified of the defect within 30 days from the date of delivery of the goods. As well as the precedent practices of our department in similar disputes in this direction, there are also decisions of the General Assembly of the Supreme Court of Law of 4.12.2015 of the day and 2015/13-1581 of the basis and 2015/2792 of the same opinion. As a result, it is necessary to decide on the rejection of the case in terms of these items, while the decision to accept this request with an incorrect assessment and written justification is contrary to the procedure and law and is the reason for the violation.
CONCLUSION: The 1st described above. refusal of other appeals of the defendants in accordance with paragraph, 2. for the reasons described in the paragraph, the appealed decision should be OVERTURNED for the benefit of the defendants, the £ 479.50 fee received in advance is paid to the defendant … on request, the £60.00 fee is paid to the defendant … Housing is Non-Residential. You have to pay the Partnership 59,24 TL to the defendants …, Inşaat ve … Sun. The restitution to the construction was decided unanimously on 17.12.2018, with the path of decision correction open within 15 days from the notification in accordance with Article 440 /I of the HUMK.
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