04 Dec WHEN THE PLAINTIFF DOES NOT HAVE A REQUEST IN ACCORDANCE WITH THE RELEVANT ARTICLES OF THE TBK, A DECISION SHOULD BE MADE TO DISMISS THE CASE, WHILE PARTIAL ACCEPTANCE AS A RESULT OF AN INCORRECT ASSESSMENT IS NOT CORRECT
T.C SUPREME COURT 15.Legal Department, Base: 2017/ 4843 Decision: 2019 / 2993 Decision Date: 26.06.2019
ABSTRACT: The court cannot prove the claim that the plaintiff’s performance has become impossible without the fault of the contract itself, the defendant decommissioned the power of attorney so that the owner of the land does not use the powers of attorney given to the plaintiff’s official, the parties’ will to return from the contract does not qualify for return, and the plaintiff’s will to return from the contract does not match, and the TBK 137 and 138. according to its articles, when it does not have a request, a decision should be made to dismiss the case, while as a result of an incorrect assessment, its partial acceptance was not correct, and it was considered appropriate to overturn the decision.
(6098 P. K. m. 136, 137, 138) (492 Pp. K. m. 42)
Case: The defendant’s attorney requested the appellant’s examination of the provision written above with the date and number of the hearing, but the plaintiff’s attorney did not arrive on the day appointed for the hearing. The defendant’s deputy Lawyer…. She came. After it became clear that the appeal had been filed within the deadline and the defendant’s lawyer was present, it was left to another day to examine the work and make a decision due to the lack of time. This time, after the papers in the file were read, the need for the job was discussed and considered:
The case, in return for a share of the land due to the lack of the possibility of performance of the construction contract, costs or expenses, loss of profits and prompt compensation is related to the collection of receivables. The court’s decision on the partial acceptance of the case over TL 689,058.88 was appealed by the defendant’s attorney.
1-the decision is based on the posts in the file in accordance with the law and especially with the evidence of the defendant compensation for the delay causes gerektirici the owner of the land, moving home, paid rent, damages and the cost of repair of damage and analysis about the cancellation of the conditions on the occurrence of the following according to whether it is possible to open a separate case for appeals that fall outside the scope of clause over the objections of other unprecedented, had a disclaimer.
2-The plaintiff contractor is the defendant landowner and the parties … for the construction of decking on the plot of land No. 2767 island 5 parcel … for the construction of dec decking … 57. On Dec. 16.10.2014, a Construction Contract was issued and signed in exchange for the Promise of Sale of Real Estate and a Land Plot in the form of Regulation No. 38802 yevmiye at the Notary Public Office.
Dec the plaintiff contractor case, the defendant claimed that the landowner did not want to hand over the real estate as empty, constantly made new requests, did not approve the research projects on an unfair basis, prevented the performance of the contract by a contractual and malevolent approach, claiming that the price paid in addition to the contract due to the impossibility of performance, october damages, punitive damages and loss of profit demanded compensation for receivables.
Answer the petition and the stage in the defence of the defendant property owner, demanding a dismissal dated 27.06.2016 agree with the statement in the petition that mean delay compensation, rent loss, damages that occur due to failure to deliver on time and the destruction of the building that you get the contractor for the repair of damages to the sum of the swap and wanted to carry out. The decedent does not have an explicit or implied statement that the owner of the land has terminated the contract or that his/her performance has become impossible.
Impossibility of performance is regulated in Articles 136 and its continuation of the TCC No. 6098 and 136. in article 137, if the performance of the debt becomes impossible for reasons for which the debtor cannot be held responsible, the debt will be terminated and the parties will ask for what they have given back. in case of partial impossibility in the article, the borrower will only get rid of the debt in the part that is impossible, 138. in its article, it is also stated that due to excessive performance difficulties, the fulfillment of the debt will become impossible, and accordingly, the borrower has the right to request that the contract be adapted to the new conditions and to return from the contract if it is not possible. On the grounds of the court’s decision, the plaintiff’s claims that akdin execution became impossible due to the fact that the contractor’s land was not delivered empty, the surveying projects were rejected without justification, and the defendant did not approach to deliver the building were not considered on the spot, and the plaintiff’s party did not request an appeal against this justification of the court.
Since the construction construction contracts in exchange for a share of the land plot also include the transfer of shares in the title deed, it is not possible to terminate the parties’ unilateral declaration of will and its decease by reaching the other party. It may be terminated by a court decision or by a merger of the termination wills of the parties. In accordance with the contract, the fact that the deputy appointed by the landowner to the contractor or his representative by the power of attorney has been dismissed is not sufficient to tacitly accept that it has been decommissioned from the contract. Despite the decommissioning of the power of attorney, the contractor can file a lawsuit against the land owners and request and provide the necessary powers for the execution of the contract in the decommissioned power of attorney, which is avoided and dismissed, although it must be done by the landowner in accordance with the contract.
In this case, the court cannot prove the claim that the plaintiff’s performance has become impossible without the fault of the contract itself, the defendant has decommissioned the power of attorney so that the owner of the land does not use the powers of attorney granted to the plaintiff’s official, does not have the right to return from the contract and the parties’ wills to return from the contract do not coincide, and the plaintiff’s TBK 137 and 138. according to its articles, when it does not have a request, a decision should be made to dismiss the case, while as a result of an incorrect assessment, its partial acceptance was not correct, and it was considered appropriate to overturn the decision.
Verdict and Conclusion: 1. refusal of the defendant’s other appeals for reasons described in paragraph, 2. according to paragraph 1 of the Law No. 5766, the defendant’s benefit will be IMPAIRED by its acceptance, the trial attorney’s fee of TL 2,037.00 will be taken from the plaintiff and given to the defendant represented by the attorney at the hearing in the Supreme Court, 11. the amendment clause, pursuant to law, the fees 42/2-d TL 176,60 that need to be taken in accordance with the Supreme Court of appeals to the appeal of how to contact paid fees in advance of tuition received from a defendant who at the request of a defendant who appeals the decision within 15 days from the date of notification of the decision, extradition for the correction of 26.06.2019 can be requested on the day it was decided unanimously. (¤¤)