The Due Date For The Return Obligation Starts With The Deputy’s Account Or The Termination Of The Contract
General Assembly of Civil Chambers 2017/1750 E. , 2019/321 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the lawsuit between the parties for “cancellation of title deed registration, cancellation of usufruct right”, the decision dated 27.09.2013 and numbered 2012/857 E., 2013/641 K. given by Menemen 1st Civil Court of First Instance on the dismissal of the lawsuit due to statute of limitations was appealed by the plaintiff’s attorney, and with the decision of the 14th Civil Chamber of the Court of Cassation dated 14.05.2014 and numbered 2014/2616 E., 2014/6369 K.,
“…The lawsuit is related to the request for cancellation and registration of title deed based on a contract of faith.
The defendant defended the dismissal of the lawsuit.
Court decided to dismiss the lawsuit due to statute of limitations.
The judgement was appealed by the plaintiff’s attorney.
A fiduciary transaction is a transaction in which the believer transfers a thing or right within the scope of its assets to the believer in order to create collateral or to be managed, and the believer uses the thing subject to belief in accordance with the conditions in the belief agreement, and returns it to the believer in the specified manner when the purpose is realised.
With a fiduciary transaction, the believer transfers a property or a right to a receivable to the believer through an accretive transaction, but also puts the believer under certain obligations through an obligatory contract.
The parties to a fiduciary transaction are the believer and the believer. A person who transfers a right or an object to a trusted person is called a “believer”. The person who directly or indirectly uses the transferred right or object for his/her own benefit as a right belonging to him/her is called the “believer”. The right or object that the believer gives to the believer is characterised as “the thing subject to belief”. In a fiduciary transaction, the parties to the gaining transaction are the same as the parties to the agreement giving rise to an obligation.
In a fiduciary transaction, the believer undertakes to comply with the agreed conditions while exercising his right, and to transfer the right or object back to the believer (or to the third party indicated by him) when the purpose is realised or the period expires. A fiduciary transaction is a contract that gives the person who made the transfer, i.e. the believer, the right to demand the return of the transfer when certain conditions are fulfilled. If this obligation is not fulfilled, it may be requested to be fulfilled by judgement through litigation.
Pursuant to the Supreme Court of Appeal Unification of Jurisprudence Decision dated 05.02.1947 and numbered 20/6, the belief contract can only be proved by written evidence. This written evidence must be a document brought by the parties and bearing their signatures.
Even if there is no written evidence of the described nature, if there is a document that is not sufficient to prove the entire dispute between the parties, but there is a document in the nature of a “beginning of evidence” (such as a deed or letter written by hand but not signed by the party to be believed, a document written by typewriter or computer but bearing the initials of the party to be believed, a document with fingerprints or sealed documents that have not been duly approved), the belief contract can be proved by all kinds of evidence, including “witnesses”, in accordance with Article 202 of the CCP No. 6100.
If there is no written evidence or “preliminary evidence”, it is also possible to prove the belief contract by conclusive evidence such as confession (Article 188 of the CCP) and oath (Article 225 et seq. of the CCP). If the plaintiff relies on oath evidence, the court should remind the plaintiff of this right.
Since there is no special statute of limitations for the cases arising from the belief contract, the statute of limitations for the cases arising from the belief contract is accepted as ten years in accordance with Article 146 of the Turkish Code of Obligations numbered 6098.
As for the concrete case in the light of these principles;
The plaintiff claimed that he sent money and a power of attorney to his defendant brother from Germany and asked him to buy immovable property, and that his defendant brother did not use the power of attorney and purchased the immovable property numbered 963 parcel with the money he sent and registered it in his name and requested cancellation and registration of the title deed. Pursuant to Article 33 of the CCP, it is the duty of the parties to describe the events in a case and the judge to make the legal characterisation. As explained, the legal nature of the case is cancellation and registration of title deed based on faithful transaction.
The court decided to dismiss the case due to statute of limitations. What is important here is to determine when the statute of limitations starts. Pursuant to Article 149 of the Turkish Code of Obligations, the statute of limitations starts to run from the date when the claim becomes claimable, in other words, when the claimant loses the hope of waiver. Since the plaintiff will be deemed to have lost the hope of waiver on the date the lawsuit was filed, the ten-year statute of limitations foreseen for these cases has not yet expired.
In this case, it was not deemed correct for the court to decide to dismiss the case due to the statute of limitations, while a judgement should be made by going into the merits of the case, and for this reason, the judgement had to be reversed….”
The court reversed the judgement on the grounds of reversal and returned the file to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
The General Assembly of Civil Chambers examined the appeal decision and after it was understood that it was appealed in due time and after the documents in the file were read, the necessity was discussed:
The lawsuit is related to the cancellation and registration of the title deed and the cancellation of the usufruct right.
Plaintiff’s attorney stated that his client and the defendant were brothers, his client residing in Germany sent 50.000. 000ETL, the defendant, without processing the power of attorney at all, used the money sent by his client to purchase the 4/12 share registered in the name of Selahattin Çelik and Hatice Polat in the said immovable property with a sales contract dated 22.06.1992 and numbered 1828, and the 2/12 share of Reyhan Arabacı in the same immovable property with a sales contract dated 17.07.1992 and numbered 2013. 07.1992 dated 17.07.1992 and with the sales contract numbered 2013,
the defendant registered a total of 6/12 shares in his name in the title deed, and the defendant left the usufruct right of this share to him after a short period of time and registered his bare ownership on 25.12. 1992 dated 25.12.1992 and numbered 3614, the defendant transferred the naked ownership of the immovable to Sadık Gönç, the son of his wife’s uncle, by showing a sale in the title deed in a collusive manner;
our client, who learnt that the immovable property, which he thought was bought in his name by sending money and power of attorney, was actually bought in his name by his brother, whom he had made his proxy, asked for the transfer of the immovable property in his name, but the defendant stalled by saying that he would transfer the shares he bought, and as a result of the insistence of our client, he transferred the 3/12 share of the naked ownership of the immovable on 14.12. 1995 dated 14.12.1995 with 4551 journal sale transaction, the shares of the immovable property subject to the lawsuit were transferred to the defendant … and his client … as a result of the zoning applied, and the usufruct right of the 6/12 share, which is the sum of these bare ownership shares, was transferred to the defendant …
claiming that the defendant has benefited himself by abusing his power of attorney and that the defendant has been registered in the name of the defendant in İzmir province, Menemen District, Koyundere Village, parcel 963, parcels 4101 block 3 and 4, parcels 4220 block 3 and 4 … and usufruct rights of 3/12 shares of naked ownership and 6/12 shares registered in the name of the defendant, and the cancellation of the naked ownership of 46/2401 shares and usufruct rights of 92/2401 shares in 4224 block 1 parcel, and the registration of the same in the name of his client.
The defendant’s attorney stated that there was no abuse of attorneyship by his client, there was no collusion in any of the transactions stated in the petition, the plaintiff could not claim registration but could claim receivables, and the claims for receivables subject to the lawsuit were time-barred,
The claims of the plaintiff regarding the transfer of half of the title deed and the establishment of a usufruct right on the title deed by deceiving and misleading the plaintiff are also subject to a one-year statute of limitations, the transaction that the title deed will be taken and given back to the plaintiff is a fiduciary transaction and the fiduciary transaction can only be proved by a written contract,
Plaintiff has to prove that the general power of attorney given by the plaintiff to his client for the follow-up of his affairs in the past years was given for the purchase of the immovables subject to the lawsuit, and that the plaintiff, who claimed that the title deed transactions made in 1992 and 1995 were fraudulent and collusive in order to deceive him, sent money to his client and followed his affairs even after 1995, The court stated that the fact that the plaintiff has not been dismissed by the plaintiff since the date he became an attorney is in need of explanation, that the power of attorney given by the plaintiff to his client has no connection with the purchase of the immovable properties and that there is no abuse of power of attorney in this case, and requested the dismissal of the lawsuit.
The local court decided to dismiss the lawsuit on the grounds that the plaintiff learnt on 14.12.1995 that the 3/12 shares were transferred in violation of the power of attorney agreement and that the lawsuit was not filed within the five years stipulated for power of attorney agreements in Article 126 of the Code of Obligations No. 818 or within the ten-year statute of limitations stipulated in Article 125 of the Code of Obligations No. 818.
Upon the appeal of the plaintiff’s attorney, the decision was reversed by the Special Chamber for the reasons written in the title section above.
Local Court decided to resist on the previous grounds.
The decision of resisting was appealed by the plaintiff’s attorney.
Dispute before the General Assembly of Civil Chambers by way of resistance is whether the plaintiff lost the hope of waiver on 14.12.1995, the date of partial performance, or on the date of the lawsuit; and according to the conclusion to be reached here, whether the plaintiff filed the lawsuit within the statute of limitations.
As it is known, pursuant to Article 33 of the Code of Civil Procedure No. 6100, the judge is bound only by the material facts and the results of the claims asserted by the parties in a lawsuit, and is obliged to adjudicate the claims in the claim and defence by applying the laws ex officio, without being limited to the provisions of the law on which they are based and their legal qualifications. The legal characterisation of the claims expressed by the parties is of great importance in terms of determining the rules to which they will be subject and their effects and consequences.
In this respect, firstly, it is useful to explain the concepts of fiduciary transaction and power of attorney agreement.
The source of belief agreements is the Unification of Case Law Decision of the Court of Cassation dated 05.02.1947 and numbered 20/6.
In the aforementioned decision, it was discussed whether the allegations of collusion and fictitious allegations, which were possible and valid according to the former law, could be heard about immovable properties after the enforcement of the Civil Code.
In the aforementioned decision; it is possible to show another name instead of the real owner in an immovable property record and a third party instead of one of the contractors in a contract for various reasons and purposes; in such cases, as in the disposals made by the attorney on his own behalf and on behalf of his client, it may be aimed to conceal the truth from third parties for a legal situation or for any purpose; except for “malicious and unjust concealments”, a lawsuit to be filed according to the possibilities mentioned will indeed have the nature of either a change of possession based on an existing right or the protection of a right;
in this case, even if the ownership of the property is considered to belong to the attorney for the purpose of correcting the subrogation, it cannot be preserved and continued since it is contrary to the provisions of representation, since the provision of the Code of Obligations stating that “when the principal fulfils his various debts against his attorney, the attorney’s receivables from the third party in his own name and on behalf of his client become the client’s” confirms this idea, and in conclusion, it has been decided that the fictitious name cases can be heard and it is possible to prove them with written evidence.
A fiduciary transaction can be defined as a contract in which the believer (relying party) undertakes to transfer a right to the believer for a certain period or purpose, and the believer undertakes to use the right according to the believer’s orders and instructions and to transfer the right back to the believer when the purpose is realised or the period expires (Özkaya, E.: Fiduciary Transaction and Muvazaa Davaları, Ankara 2004, p. 25).
In judicial decisions, a fiduciary contract is defined as an agreement that includes the commitment of the believing party to transfer the right obtained by the believing party to the believer or a third party after the purpose pursued by the parties has expired or a certain period of time has passed (HGK, dated 13.5.1992, 1992/14-249 E, 1992/323 K).
With a fiduciary contract, the believer (creditor) transfers a property or receivable right to the believer (fiduciary), and with an obligatory contract, the rights and powers of the believer are limited. The believer is obliged to comply with the agreed conditions while exercising his/her right and to return the right back to the believer when the purpose is realised or the time period expires.
As with belief transactions, the statute of limitations for these transactions is not regulated in our Law. Both in the scientific field and in practice, it is accepted that the right of action for the return of the subject matter of belief, and the right of action for compensation if the subject matter of belief has been transferred to a third party and the believer has lost the right of belief, is subject to the 10-year statute of limitations set forth in Article 125 of the Code of Obligations (CO) No. 818.
The statute of limitations starts to run on the date the receivable becomes due, in other words, on the date when the thing subject to belief must be returned. If the believer is justified in holding the subject of belief, the statute of limitations cannot start (General Assembly of Civil Chambers dated 15.04.2011, No. 2011/13-14 E., 2011/189 K. and dated 29.01.2014, No. 2013/11-376 E., 2014/49 K.).
The contract of agency is defined in paragraph 1 of Article 386 of the abrogated Code of Obligations No. 818 as follows: “Agency is a contract whereby the agent undertakes the management of the work entrusted to him in accordance with the contract or the performance of the service he has undertaken.
With the power of attorney contract, the attorney is under an obligation to perform work against his/her principal. This may be an act of service, an act of work in a broad sense, or an activity in favour of another person. In a power of attorney regarding legal acts, the attorney is obliged to perform legal transactions in the interest of his client, especially to acquire, use and transfer subjective rights (Yalçınduran T.: Fee in Power of Attorney Contract, Ankara 2007, p. 35).
From this definition, the elements of an agency contract can be listed as follows: the agent undertakes an obligation to perform a task; the obligation to perform is performed for the benefit of another person; the obligation to perform is fulfilled in accordance with the will of the principal; the agent undertakes the act of performance, not the result of performance; the agent acts independently while fulfilling the obligation to perform; the fee (which is not compulsory).
As a rule, the scope of the power of attorney agreement is determined by the consent of the parties in accordance with the general provisions of the Law of Obligations and general principles. However, it is not legally possible for the rights strictly attached to the person to constitute the subject matter of the power of attorney agreement. Pursuant to the principle of freedom of contract, an agency agreement may be concluded on any subject other than this mandatory rule. If the wills of the parties are not guiding the determination of the scope of the contract, or if this issue is not mentioned in the contract, the scope of the contract shall be determined according to the nature of the work to which the contract relates, according to the regulation of paragraph 1 of Article 388 of the CO.
In the solution of the case at hand, it is necessary to focus on the “accountability obligation” of the attorney to the principal.
Pursuant to the provision of paragraph 1 of Article 392 of the Code of Civil Procedure, upon the request of the principal, the agent is obliged to account to him for the work he has performed and which is the subject matter of the agency agreement. This obligation arises upon the conclusion of the contract and is not necessarily dependent on the performance of the contract, and may continue after the termination of the contract, depending on the circumstances.
The duty of accountability obliges the attorney to account for the financial matters related to his/her duties, more specifically, the goods or money he/she has received, the expenditures he/she has made, and where he/she has used the advances and expenses he/she has received, and to submit the relevant documents to the principal. In a sense, this is also a type of the obligation to provide information as a requirement of the duty of loyalty.
The obligation to account is a natural consequence of the agent’s performance of work belonging to another person; indeed, the person whose work is performed (the principal) needs to know whether the work has been started, how the work has been carried out and finalised.
Thus, the duty of accountability, in its broad sense, manifests itself as a general obligation to provide information. The attorney is obliged to inform the principal not only at the end of the work but also during its execution.
In an agency contract, the agent’s obligation to account arises with the establishment of the agency contract and continues during the execution of the work by the agent and at its termination. It does not depend on the fulfilment of the contract. Moreover, when necessary, this obligation continues even after the termination of the contract of agency. Thus, if the principal asks the attorney to repeat the accountability after the termination of the contract of mandate, the attorney is obliged to fulfil this obligation again. However, in this case, the principal shall reimburse the agent for the expenses incurred by the agent in this regard and the wages of the labour spent for this work.
As for the concrete case within the scope of all these explanations; considering that the plaintiff, in the petition of the lawsuit and in the preliminary examination hearing dated 27.09.2013, authorised the defendant with a power of attorney to purchase the real estate subject to the lawsuit and requested the cancellation and registration of the title deed with the claim that the defendant purchased the real estate in his name, it was accepted by the General Assembly of Civil Chambers that in the concrete case, the request for cancellation and registration of the title deed based on the abuse of the power of attorney agreement was made, not the request for cancellation and registration of the title deed arising from the contract of faith.
At this point, it would be appropriate to make a brief explanation about the concept of statute of limitations and the application of the statute of limitations in the power of attorney agreement.
Statute of limitations, which is a technical concept in private law, means the exhaustion of the period of time accepted by the law in the acquisition or loss of a right.
Statute of limitations is a legal reason for the loss of the ability to sue and execute due to the failure to use the right within the periods determined by the law, with the defence of the other party and has an effect on the rights. With the expiry of the debt, the receivable will not be terminated, but the creditor’s ability to obtain its receivable through litigation will be eliminated. In other words, the debt will become an incomplete debt (natural debt=obligatio naturalis).
The state ceases to use its own power to collect the time-barred receivable, and thus, it is left to the will of the debtor whether or not to pay the receivable in question. However, it should be noted that the mere fact that the receivable is time-barred is not sufficient for it to become an incomplete debt; for this purpose, the debtor must assert the statute of limitations defence against the creditor in the claim filed against him. Otherwise, the statute of limitations defence cannot be taken into consideration by the judge ex officio. In this regard, Article 140 of the Code of Obligations stipulates that ‘The judge cannot take into account the statute of limitations ex officio, unless the statute of limitations is raised.
The existence of a debt subject to statute of limitations can be counted as the existence of a debt subject to statute of limitations, the debt being due and the passage of a certain period of time in the law starting from the date the debt is due. However, when these three conditions come together, the statute of limitations is fulfilled, and the defendant, who asserts the statute of limitations defence, states that the plaintiff’s right to claim has arisen, but that he is not obliged to perform the performance because it is time-barred, and thus can ensure the dismissal of the lawsuit.
It should be noted immediately that the debtor (defendant), who claims that the statute of limitations has expired, is also under the burden of proving that this period has expired.
The law does not regulate in a certain system which rights are time-barred and which are not. According to the existing legal order and legislation, all receivables, whether arising from debts, commercial, property and public law, are subject to prescription.
Article 125 of the Code provides a general provision on the scope and duration of prescription. According to the provision of this article; “Unless otherwise provided in this law, every action is subject to a prescription period of ten years.”
Article 128 of the Code emphasises that the statute of limitations for contractual receivables starts to run as soon as the receivable is due in principle. The date of default is not important in this respect
Since the concept of “due and payable” here means that the receivable has become claimable and actionable by the creditor, the existence of a receivable must first be established.
However, if the due date of the receivable is subject to a notice condition, the statute of limitations starts to run from the moment the notice can be given. Indeed, according to Article 128 of the Code, the statute of limitations starts to run when the receivable becomes due, and if the due date of the receivable is subject to the occurrence of a notice, the statute of limitations starts to run from the day on which this notice can be given.
Pursuant to Article 101 of the Code, the debt being due means that the time for performance has come. If the performance of the obligation cannot be demanded yet, there can be no talk of a due and payable obligation.
Pursuant to Article 74 of the Code, if the fulfilment of the obligation is not subject to a period of time, the receivable becomes “due and payable” upon the occurrence of the obligation.
If the fulfilment of the debt is subject to a maturity, the statute of limitations for the creditor starts to run from the date of maturity.
In the case of return debts that are not subject to maturity (such as vedas, power of attorney for the management of an asset), the debt starts from the date of termination of this relationship, not from the date of the contract. In this respect, it is accepted as the dominant opinion in the doctrine that the statute of limitations should start from the date of termination of the relationship.
İn Article 128 of the Code, the legislator has departed from the principle of default of the debtor for the commencement of the statute of limitations and deemed it sufficient for the receivable to be due and payable.
Pursuant to Article 125 of the Code, in principle, receivables are subject to a prescription period of ten years, unless otherwise stipulated. Article 126 of the CO. Article 126 regulates exceptions to this principle. Accordingly, some receivables are time-barred in five years.
If the subject of the agent’s obligation to pay the receivables is money, according to paragraph 2 of Article 393 of the CO, the agent is obliged to pay the interest of the money in his possession (Tandoğan, H.: Law of Obligations, Vol. II, p.506-508).
According to the provision of the fourth paragraph of Article 126 of the Code of Obligations, the obligation of the agent to return the receivables to the principal and the principal’s right to demand these receivables are subject to a five-year statute of limitations like all receivables arising from the agency agreement.
It is undisputed that the statute of limitations for contractual receivables starts from the date the receivable becomes due. Pursuant to Article 74 of the Code, if the fulfilment of the obligation is not subject to a period of time, the receivable becomes due and payable when the obligation arises, and again pursuant to Article 128 of the Code, the statute of limitations starts on the date the receivable becomes due and payable.
In this sense, the moment of performance is called the due date of the debt. The creditor can only sue for the receivable after that, and the statute of limitations for the receivable starts to run from this moment.
When the concrete case is evaluated in the light of all these explanations:
The case is related to the request for cancellation and registration of the title deed arising from the misuse of the power of attorney contract, and as stated above, among the most important elements of the power of attorney contract is the duty of the attorney to account. The agent is obliged to account for his/her work and to return everything he/she has acquired in the name and account of his/her principal, and to keep the things he/she has taken until he/she returns them. Attorney’s obligation of accountability arises with the establishment of the contract of attorneyship and continues during the execution of the work by the attorney and at its termination.
For this reason, the statute of limitations for the attorney’s obligation to return what he has taken does not run as long as the contract of attorney continues. In other words, the due date in the return obligation starts with the accountability of the attorney or the end of the contractual relationship (General Assembly of Civil Chambers dated 2011 and numbered 2011/13-161 main and 2011/276 decision). In the concrete case, there is no document in the file that the defendant, acting as an attorney, has fulfilled his accountability obligation
As such, it cannot be mentioned that the statute of limitations has expired in the case at hand. The lawsuit was filed in due time and it is not correct to decide to dismiss the lawsuit on the grounds that the statute of limitations has expired, while the merits of the case should be examined, the evidence of the parties should be collected and a decision should be made accordingly.
During the discussions held at the General Assembly of Civil Chambers, it was stated that since there was no transaction made by the defendant in his capacity as the plaintiff’s attorney regarding the assignment of the immovable properties subject to the lawsuit, it cannot be accepted that the lawsuit is based on the legal reason of “misuse of proxy duty”, Since the plaintiff has relied on the relationship of faith by stating that the plaintiff sent money to the defendant, the statute of limitations in the case at hand will start to run on the date of the lawsuit, which is the moment when the plaintiff lost the hope of waiver, and therefore the judgement should be reversed in line with the Special Chamber’s reversal decision indicating that the lawsuit was filed within the statute of limitations, but this opinion has not been adopted by the majority of the Board.
In that case, the judgement should be reversed with the different justification explained above.
CONCLUSION:
With the acceptance of the appeals of the plaintiff’s attorney, it was decided by majority of votes on 19.03.2019, in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with the provisional Article 3 of the Code of Civil Procedure No. 6100, to return the advance appeal fee to the depositor if requested, and to open the way of decision correction within fifteen days from the notification of the decision in accordance with Article 440 of the same Law.
VOTE AGAINST
The plaintiff’s attorney stated that the plaintiff sent a power of attorney and money to the defendant’s brother in order to purchase the immovable property numbered 963 parcel, but the defendant purchased shares in his name from non-suiting persons on 22.06.1992 and 17.07.1992 without acting on the power of attorney and ensured the registration of a total of 6/12 shares in his name, and then he left the usufruct right of the said share on him and transferred the bare ownership to his relative Sadık on 25. 12.1992 to his relative Sadık,
and although Sadık stated that he would assign the immovable to the plaintiff, the defendant fraudulently purchased 3/12 shares of the naked ownership although the usufruct right was already in his name, and transferred the naked ownership of 3/12 shares to the plaintiff who thought that he had purchased the whole immovable on 14. 12. 1995, after the plaintiff learnt about the situation,
he demanded the transfer of the half naked ownership share and the usufruct right to the defendant, but the defendant delayed, the defendant abused his duty of attorney with fraudulent and collusive transactions, in the meantime, as a result of the partial zoning application of the immovable property numbered 963 parcel, 4101 block 3, 4; 4220 parcels 3, 4 and 4224 parcel 1 as a result of the partial zoning application of the immovable property numbered 963 parcel; and requested the cancellation of the naked ownership shares and usufruct rights in the name of the defendant in the disputed immovables and their registration in the name of the plaintiff.
As it is known; pursuant to the provision stipulated in Article 33 of the Code of Civil Procedure No. 6100, “The judge shall apply Turkish law ex officio”, the duty of legal qualification in a case belongs to the judge. The judge is not bound by the parties’ statements regarding legal characterisation. The parties are obliged to declare the facts (material facts), and the judge is obliged to determine and apply the legal regulation in accordance with the declared material facts.
It should be noted immediately that; in order for the contracts aiming at the transfer of immovable property (sale, donation, trampa, etc.) to be valid, the contract must be made officially as stipulated in Articles 706 of the Turkish Civil Code, 237 of the Turkish Code of Obligations (213 of the Code of Obligations) and 26 of the Land Registry Law. On the other hand, one of the principles of keeping the land registry is the registration, another is the publicity (reliability) of the registry, another is the perfect liability of the Treasury, and the last one is the existence of a valid legal reason, that is, the registration should not be divorced from the cause.
On the other hand, with the Unification of Case Law Decision dated 05.02.1947 and numbered 20/6, it was decided that “pseudonym cases can be heard and it is appropriate to introduce them with written evidence”; and with the Unification of Case Law Decision dated 07.10.1953 and numbered 8/7, it was decided that “in order for the plaintiff to request the correction of the land registry in his name with the assertion of the existence of a contractual relationship, the two parties must have a legal relationship in accordance with Article 634 of the CC. If it is understood from the statement of the plaintiff that such a contract does not exist, the proof of a situation that the law recognises as non-existent cannot be considered by the judiciary (court)”.
In the concrete case; since the plaintiff claims that the immovable property was purchased with the money he sent, and that a registry record was created in the name of the defendant even though he is the real owner, it is undisputed that his claim is directed to the land registry, and it is undoubted that such a claim should be evaluated within the scope of the Unification of Case Law Decision dated 05.02.1947 and numbered 20/6. Although it is accepted by the parties that the plaintiff has appointed the defendant as an attorney, there is no legal action taken by the defendant as the plaintiff’s attorney regarding the assignment of the disputed immovables, and it cannot be said that the legal reason of “abuse of attorneyship duty” is relied on in such a lawsuit filed against the land registry with the allegations stated in the lawsuit petition.
As mentioned above, the official sale of immovable property is a condition of validity, and the registration, which is one of the principles of keeping the land registry, must have a valid legal reason. The plaintiff, on the one hand, relies on the relationship of faith by stating that he sent money to the defendant for the purchase of the immovable subject to the lawsuit; on the other hand, by asserting that he purchased the disputed immovable himself and that he is the real owner, he opposes the registration in the name of the defendant and the official sales contract on which this registration is based, that the said contract is invalid, in other words, he relies on the claim of “collusion on the side” against the official contract; such claims must be proved by written evidence in accordance with the aforementioned Case Law Unification Decision.
However, the allegation of abuse of power of attorney can be proved by any evidence duly obtained. Again, in the Case Law Unification Decision dated 07.10.1953 and numbered 8/7, in relation to the cases similar to the concrete case between husband and wife, it is stated that “…the plaintiffs may prove that they have an attorney contractual relationship with their wives with witnesses based on Article 293 of the procedure. However, the fact that the existence of this relationship is proved does not entitle them to request the registration of the immovable properties in their name from the court, but the attorney may be obliged to indemnify the attorney for acting contrary to the commitment…”
It is emphasised that the plaintiff cannot request the registration of the immovable properties acquired by the attorney from the third party on the basis of the attorney relationship. Anyway, accepting otherwise would lead to the conclusion that the property right of the attorney in respect of the immovables acquired by the attorney in his own name is kept under the threat of the principal, in other words, the principal may file a lawsuit for the property right based on the attorney relationship between them, and this can be proved with all kinds of evidence, which is clearly not acceptable in the face of the aforementioned legal regulations and the CCP.
In such a case, both the principles of official form being a condition of validity in immovable property assignment transactions and the principles of keeping the land registry, as well as the principles of the Court of Cassation dated 05.02.1947 and numbered 20/6 and 07.10.1953 and numbered 8/7. 1953 dated 05.02.1947 and numbered 20/6 and 07.10.1953 dated and 8/7 numbered Case Law Unification Decisions, “the claim that the immovable properties have been registered in the name of someone other than the person who paid the price, according to the way the claim is put forward and the material facts, “faith transaction-belief contract” “name-alias” or “collusion in the name of the contract-party collusion” should be qualified as “faith transaction-belief contract” or “collusion in the name of the contract-party collusion” and evaluation should be made accordingly.
As a matter of fact, the 1st Civil Chamber of the Supreme Court of Cassation, which is in charge of the appellate review of the decisions rendered in the title deed cancellation and registration cases based on the legal ground of abuse of power of attorney. Civil Chamber of the Supreme Court of Cassation, which is responsible for the appellate review of the decisions rendered in title deed cancellation and registration cases based on the legal ground of abuse of power of attorney, is qualified as “title deed cancellation and registration cases based on fiduciary transaction or party collusion” and evaluated accordingly. (Precedents: Decrees of the Court of Cassation 1st HD dated 26.12.2005 and numbered 12473-13753, dated 22.05.2006 and numbered 4130-5812, dated 22.11.2018 and numbered 2016/348 Esas-2018/14790 )
In that case, in the case at hand, an evaluation should be made by concluding that “cancellation and registration of the title deed and abandonment of the usufruct right based on the belief contract is requested” in terms of the content of the petition and the way the claim is put forward.
In this context, since the dispute subject to the resistance is whether the statute of limitations has expired or not, the statute of limitations must be determined in accordance with Article 146 of the Turkish Code of Obligations No. 6098, since a special statute of limitations is not stipulated in cases arising from belief contracts. The aforementioned article stipulates that “unless otherwise provided by law, every receivable is subject to a ten-year statute of limitations” and Article 149 of the same Law stipulates that “the statute of limitations starts to run with the due date of the receivable.
In cases where the due date of the receivable depends on a notification, the statute of limitations starts to run from the day this notification can be made”. In accordance with the established case law of the Court of Cassation, it is emphasised that the statute of limitations in cases based on the contract of faith shall commence from the date on which “the hope of renunciation is lost”, and this point is also accepted by the local court. However, there is a dispute between the Special Chamber and the Local Court in terms of determining the date when the hope of waiver is lost in the concrete case.
From the file content and all the evidence collected; since there is no assignment transaction made by the defendant to the plaintiff regarding the immovable property subject to the lawsuit, partial performance cannot be mentioned, and it is not claimed that the defendant has a notification or action to realise the performance or to reject the plaintiff’s waiver request. In fact, the defendant’s attorney stated in his reply petition that the plaintiff can at most file a claim for receivables according to the provisions of unjust enrichment, and that the claims for receivables are time-barred according to the transaction dates.
The plaintiff stated in the petition that the defendant delayed him regarding the assignment. Within the scope of the file, there is no evidence and indication that the plaintiff lost the hope of assignment before the date of the lawsuit. Therefore, it must be accepted that the plaintiff hoped to acquire the property right in accordance with the contract of faith until the date of the lawsuit.
As such; In view of the above-mentioned legal regulations and the nature of the case and the characteristics of the concrete case explained, the plaintiff filed the present deed cancellation and registration lawsuit by losing the hope of waiver, in other words, he lost the hope of waiver as of the date of the lawsuit, and thus it cannot be said that the statute of limitations has expired, the court should examine the merits of the case, while it is not correct to decide to dismiss the lawsuit due to the statute of limitations, and since I am of the opinion that the decision to resist should be reversed in line with the Special Chamber reversal decision, I cannot agree with the reversal decision of the majority on different grounds.
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