Acceptance Of The Defendant Attorney Who Abused His Duty Of Attorney And Whose Debt Has Been Paid Does Not Affect The Other Defendants
General Assembly of Civil Chambers 2017/1202 E. , 2017/1049 K.
“Case Law Text”
COURT :
Civil Court of First Instance
At the end of the trial held due to the “cancellation and registration of title deed” lawsuit between the parties; the decision dated 16.10.2012 and numbered 2011/85 E., 2012/294 K. given by Çatalca 1st Civil Court of First Instance on the acceptance of the lawsuit, upon the appeal of the defendant … and the defendant …, with the decision of the 1st Civil Chamber of the Court of Cassation dated 19.11.2013 and numbered 2013/276 E., 2013/16152 K;
“… The lawsuit is related to the request for cancellation and registration of the title deed based on the legal ground of abuse of power of attorney.
The plaintiff filed the present lawsuit claiming that he gave power of attorney to his son Erol to mortgage the shop subject to the dispute due to his son Erol’s difficult situation, Erol transferred the immovable property to the defendant …, the husband of Mehmet’s wife’s sister’s sister, with his debt to another son, the defendant …, and with his guidance, he transferred the immovable property to the defendant … in collusion, he did not receive any money, and the assignment was intended to evade property from his other children.
Defendant … stated that he took the power of attorney in order to mortgage the property, that he sold the property to his brother-in-law Recep as a result of his brother’s pressure, that the plaintiff was right and accepted the lawsuit, the defendant … stated that he purchased the property by paying the price, that the attorney deposited the money in Vakıfbank account, that he was a third party in good faith, and the defendant … stated that he was not involved in the events and defended the dismissal of the lawsuit.
The court decided to accept the lawsuit on the grounds that the duty of attorney was abused and the defendant … cannot benefit from the protection of Article 1023 of the Turkish Civil Code.
From the file content and the collected evidence; it is understood that the shop number 1, which is the subject of the dispute registered on 44 block 11 parcel of 44 block 11 parcel, belongs to the plaintiff, and the defendant’s son Erol, who was appointed as a proxy with the power of attorney dated 26.11.2009 by the 1st Notary Office of Çatalca, transferred the said shop to the defendant … on 01.12.2009 by showing the sale to the defendant … for 10.000.-TL.
As it is known; according to the provisions of the Code of Obligations regulating the representation and proxy contract, the proxy contract is largely based on the mutual trust of the parties. Most of the obligations of the agent arise from this element of trust and his/her obligation to act in accordance with the interests and will of the principal.
In the 6098 p. Turkish Code of Obligations (TCO), the duty of loyalty and care is accepted as the most prominent duty of the agent towards the principal, and Article 506 (390 of the 818 p. Code of Obligations) reads as follows: “The agent is obliged to perform the proxy obligation personally. However, in cases where the agent is authorised or where the situation is mandatory or made possible by custom, the agent may have the work done by someone else.
The attorney is obliged to carry out the works and services undertaken by the attorney with loyalty and diligence, observing the rightful interests of the principal.
In determining the responsibility of the agent arising from the duty of care, “the behaviour of a prudent agent undertaking works and services in a similar field is taken as basis.” In this respect, the agent is under the obligation to act in accordance with the interests and will of the principal, and to avoid behaviours that may harm the principal. The scope of the power of attorney is determined according to the nature of the work to be performed, unless it is explicitly stated in the contract (Article 504/1 of the TCO). Even if there is no explicit provision in the contract on how to fulfil the power of attorney, or even if the transaction is within the limits of the external representation authority, this obligation of the attorney is always present.
In fact, the fact that the owner authorises the agent to sell an immovable property to whomever he wishes for any price he wishes, and that he even specifies the person to whom he will sell, does not give him the right to sell beyond reasonable limits by disregarding the rule of honesty, loyalty and duty of care. The agent who commits an act or transaction incompatible with the interest of the principal shall be liable pursuant to the last paragraph of the aforementioned article. While this liability is determined by analogy with the liability of an employee, which is lighter in the CO, it is further aggravated in the TCO by taking the liability of a prudent agent undertaking works and services in a similar field as a basis.
On the other hand, if the person who enters into a contract with the agent is in good faith within the meaning of Article 3 of the Turkish Civil Code (TCC), i.e., if he does not know that the agent is abusing his power of attorney, or if it is not possible for him to know that the agent is abusing his power of attorney despite exercising due diligence, the contract with the agent is valid and binds the agent. Even if the agent abuses the power of attorney, this issue remains as an internal problem between the agent and the principal, and cannot affect the rights acquired by the person who has contracted with the agent.
However, if the third party is in interest and co-operation with the agent, or if the third party is malicious and knows or should know that the agent is abusing his/her power of attorney, it should be accepted as a natural consequence of the rule of honesty written in Article 2 of the TCC that the principal is not bound by the contract. Since the aforementioned article has a mandatory nature, it is obligatory to be taken into consideration by the judge ex officio. To the contrary would be to encourage bad faith, or at least to turn a blind eye to it. However, in all contemporary legal systems, bad faith is not protected but always condemned. As a matter of fact, practice and scientific opinions have developed and stabilised in this direction.
As for the concrete case; it is understood that the power of attorney subject to the dispute is a special power of attorney and has the authority to sell, the plaintiff appointed his son as an attorney with his consent, knowing the powers in the power of attorney, in the statement of Sayit Dönmez, one of the witnesses listened to; the defendant … came to him and stated that he sold the shop and asked if he wanted to buy it, and it is understood that the defendant … clearly stated that he sold the immovable in his statement of acceptance of the case.
On the other hand, as a result of the report received from the technical experts as a result of the application made at the scene, it was understood that the real value of the immovable property was 95.000.-TL on the date of transfer and the assignment was made by the attorney to the defendant … at a price of 10.000.-TL;
however, with the defendant …’s defence that the sales price was actually 90.792.-TL and that he deposited the sales price into the Vakıfbank Account of the attorney on 01.12.2009 and with the correspondence made with Vakıfbank Çatalca Branch; 01.12. 2009, … deposited 90.792,36-TL to the follow-up account of … and that this amount was used in the collection and liquidation of the monitored risks of the attorney and that the mortgage on the immovable property belonging to …, which constitutes the collateral of Erol’s loans, was cancelled, it is undoubted that the defence of the defendant … was confirmed and the contrary of the official contract was revealed by the bank records and that the buyer Recep paid 90.792,36.-TL to the attorney in return for the sale.
On the other hand, it is clear that the defendant …, whose loan debt to the bank was closed with the sales price paid, has gained profit due to the incident, therefore the statement of acceptance of the case will not affect the other defendants, on the other hand, the claim that the 91.300.-TL withdrawn from the Halkbank account on 01.12.2009 by the non-suit Selma Gönç, who is declared to be the wife of the defendant Mustafa, was used for the purchase of the immovable property cannot be proved, and it is clear that it will not change the fact that the payment was made to the attorney Erol in an amount close to the real price for the assignment.
Thus, when these facts are evaluated together with the principles mentioned above; it is concluded that the assignment was voluntary and there was no abuse of attorneyship duty. If the price related to the sale has not been paid to the plaintiff by the attorney, since there is no request arising from the price in the case, it is also possible to file a lawsuit against the attorney arising from the price.
As such, while it should be decided to dismiss the lawsuit, it is not correct to have a judgement as written with a wrong evaluation…”
The case was reversed with the majority of votes and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of resisting was appealed in due time and the papers in the file were read, the necessity was discussed:
According to the mutual claims and defences of the parties, the minutes and evidence in the file, the reasons explained in the reversal decision, and especially in the third line of the fourteenth paragraph of the Special Chamber reversal decision, it is understood that the name of the defendant … was written as “Mustafa” as a result of a material error, the word written as “Mustafa” should be corrected as “Mehmet” and the material error should be eliminated in this way and the Special Chamber reversal decision adopted by the General Assembly of Civil Chambers should be followed, but resisting the previous decision is against the procedure and the law.
Therefore, the decision to resist should be reversed.
CONCLUSION:
With the acceptance of the appeal objection of the defendant …’s attorney, it was unanimously decided on 31.05.2017, on 31.05.2017, that the material error explained above should be corrected and the decision of resistance should be reversed for the reasons shown in the Special Chamber’s reversal decision, and that the pre-appeal fee should be returned to the depositor if requested, and the way of decision correction should be open.
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