THE ISSUE OF WHETHER THE PERFORMANCE HAS BECOME IMPOSSIBLE HAS BEEN INVESTIGATED AND A PROVISION HAS TO BE ESTABLISHED ACCORDING TO THE RESULT

02 Dec THE ISSUE OF WHETHER THE PERFORMANCE HAS BECOME IMPOSSIBLE HAS BEEN INVESTIGATED AND A PROVISION HAS TO BE ESTABLISHED ACCORDING TO THE RESULT

T.C SUPREME COURT 13.Legal Department, Base: 2017/ 3657 Decision: 2018 / 10801 Decision Date: 19.11.2018

SUMMARY: The documents in the court’s file, the situation where the zoning plan of the place where the transformer is being moved has been canceled, and the provisions of the contract are in accordance with the relevant Article 136 of the TCC described above.considering the provision of the article, it is necessary to investigate whether the performance has become impossible and establish a provision according to the result, while it is contrary to the procedure and law that the acceptance of the case has been decided in writing with an incomplete examination and required to be overturned.

(6098 P. K. m. 136)

Case: At the end of the trial of the case for the return of the letter of guarantee between the parties, the file was examined and considered as necessary after the defendant’s lawyer appealed the decision made to accept the case for reasons written in the dec.

The plaintiff is between the defendant and … the province, … the county, dec007 island – 23 3007 3 plots in the plots island 151.117 to move into transformer,76 GBP worth, a protocol was signed check dated 05/11/2009 obligation falling upon the protocol’s requirement 6 months will be displaced as the No. 3 plots the transformer transformer pay all the costs and allocation of land and place is to do registration on behalf of … , however, during the implementation of transformer displacement operations … since it is not allowed to put a transformer on parcel 3 by the Municipality upon appeal to the Municipality, the displacement operation was carried out by installing the substation on the land allocated in the zoning plan, the defendant agreed to it, but since the new transformer location is not in the ownership of the main protocol 14. According to Article 6 of the articles of association, that all costs are borne by the claimant himself, and that they have made an october protocol for the expropriation operations to be carried out by him.as a guarantee for his actions in accordance with the article … The Bank … issued a final letter of guarantee dated 31/12/2009 dated 606421 with a cost of 16,000.00 TL and dated until 13/12/2012 to the defendant institution, after registering the transformer location in the protocol … on behalf of the General Directorate of the letter of guarantee it was given to the defendant will be returned, according to the article dated 15.11.2012 of the defendant institution … that the deed for the transformer location has not been received, the letter of guarantee must be renewed and replaced with a letter with an indefinite statement until the completion of the title transfer procedures, otherwise the existing letter will be converted into cash, the letter of compensation has been extended twice to date, the letter must now be returned, expropriation initiated in accordance with the contract that the non-completion of his transactions was not caused by him, for the reason that the provision ”until the registration of immovable property” contained in the contract is not caused by it, its performance becomes impossible and the defendant accepts the impossibility, BK. 136. According to the provisions of the article, the debtor will be relieved of liability if the performance of the debt becomes impossible, noting that there is no possibility that the plaintiff will harm the defendant, first of all … TL 16,000.00 dated 31/12/2009, 606421, issued by the branch of the Bank…. 16,000.00. converted price in cash to the Prevention of letter of guarantee, letter dated between the parties to the protocol with the return of 05/11/2009 due to the acts of the parties have ended, and this situation with the detection of forward and demand that it be given to decide on the termination of the attachment protocol and has prosecuted.

The defendant requested the dismissal of the case, arguing that the reason why the letter of guarantee was not returned was that the plaintiff had not provided registration on behalf of the place where the transformer was transported in accordance with the protocol, which was the plaintiff’s obligation.

The court decided to accept the case, return the letter of guarantee No. 16,000.00 TL dated 31/12/2009 dated 606421 issued by the Bank’s branch to the plaintiff; the judgment was appealed by the defendant.

The case concerns the return of the claimant’s letter of guarantee, which they signed with the defendant in accordance with the protocol dated 05.11.2009, for reasons that were not caused by the bankruptcy itself, which became impossible for the plaintiff in accordance with the claimant’s claim letter of guarantee dated 05.11.2009. The defendant has requested the dismissal of the case. According to the court; ”.. since the ownership of the immovable property belongs to the treasury, the registration process … should be deciphered between the defendant … and the plaintiff, and since the plaintiff is performing his/her part in accordance with the protocol, the letter of guarantee should be returned to the plaintiff..” it has been decided to accept the case on the grounds of.

136 of the Turkish Code of Obligations No. 6098, which was in force at the time of the case, entitled ”Impossibility of performance”.article; “If the performance of the debt becomes impossible for reasons for which the borrower cannot be held responsible, the debt is terminated. it has the form “. During the examination of the documents in the file, the plaintiff requested the cancellation of the decision of the Municipal Council dated 29/12/2010 and numbered 295 on the implementation of zoning covering the immovable property numbered 1482 parcels belonging to the treasury in which the transformer was transported … 1.A lawsuit was filed in the Administrative Court, the Administrative Court decided to cancel the zoning process subject to the lawsuit with decision No. 2012/647 based on 2011/854 dated 21.06.2012, and the decision was appealed to the State Council 6.It is understood that it was decided to approve the Department with decision No. 2015/4360 based on decision No. 2012/6778 dated 17.06.2015 and it was finalized in this way. For this reason, the plaintiff has filed the lawsuit by declaring that the title deed of the place where the transformer was transported cannot be registered on behalf of the General Directorate in an understandable way and that the performance has become impossible for a reason that is not caused by it. Although october additional protocol signed between the parties stated that the letter of guarantee will be returned after the expropriation procedures have been completed and the new transformer location has been registered on behalf of the General Directorate dec; the documents in the file filed by the court indicate that the zoning plan of the place where the transformer is being transported has been canceled, and the provisions of the contract are in accordance with the relevant Article 136 of the TCC described above.considering the provision of the article, it is necessary to investigate whether the performance has become impossible and establish a provision according to the result, while it is contrary to the procedure and law that the acceptance of the case has been decided in writing with an incomplete examination and required to be overturned.

Conclusion: For the reasons described above, it was decided unanimously on 19/11/2018 that the appealed decision would be OVERTURNED for the benefit of the defendant, the fee received in advance would be returned on request, and the way to correct the decision would be open within 15 days from the notification in accordance with Article 440/I of the HUMK, on 19/11/2018. (¤¤)