Allegation Of Failure To Notify Hidden Defects Is Contrary To The Rule Of Honesty
General Assembly of Civil Chambers 2017/580 E. , 2020/97 K.
“Case Law Text”
COURT :Civil Court of First Instance
1. At the end of the trial held due to the “compensation” lawsuit between the parties, the decision on the acceptance of the lawsuit given by Eskişehir 3rd Civil Court of First Instance as a consumer court was reversed by the 13th Civil Chamber of the Court of Cassation upon the appeal of the defendant’s attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the defendant’s attorney.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Plaintiff’s Claim
4. In the statement of claim dated 14.08.2013, the plaintiff’s attorney stated that the immovable property in Sıraevler Houses, which his client purchased from the defendant with a contract dated 25.04.2005, was delivered on 05.09.2007, the sheathing and exterior plaster of the building started to crack and fall off over time due to the faulty manufacturing of the building using poor quality materials, upon the emergence of this situation in all buildings in the site,
the defective and defective manufacturing in all residences was determined in the determination made by the defendant itself through the file numbered 2012/3 D. İş numbered file of the Eskişehir 3rd Civil Court of First Instance, the defective and incomplete manufacturing in all residences was determined, despite this, no action was taken by the defendant, claiming that the real damage of his client will be determined as a result of the examination to be made by the court, he demanded and sued for the collection of 2.000,00TL compensation from the defendant, without prejudice to his rights regarding the excess, and amended his request as 2.835,70TL with his petition dated 15.04.2014.
Defendant’s Reply:
5. The defendant’s attorney stated that the elimination of the works within the scope of the project and the contract, which were found to be incomplete and defective, belonged to the non-suit contractor in accordance with the contract between the client and the defendant, and that the defects notified to the client on the subject were evaluated and eliminated by the contractor company,
In spite of this, the plaintiff’s claims to the administration is in the nature of abuse of right, in addition to this, the defect was not notified within the period stipulated by the Law No. 4077 on the Protection of Consumers, the construction was completed in accordance with the standards, 3/4 of the sales contract between the plaintiff and his client. Article 3/4 of the sales contract between the plaintiff and his client, it was expressly agreed that the buyer would not request subsequent repairs, repairs or credits regarding the property purchased by seeing its current condition, and requested the dismissal of the lawsuit.
Decision of the Court of First Instance:
6. With the decision dated 30.05.2014 and numbered 2013/525 E., 2014/320 K. given by Eskişehir 3rd Civil Court of First Instance as a consumer court, it was decided to accept the case over the amended amount on the grounds that the defendant was responsible for the damage arising from the hidden defect arising from the manufacturing and that the lawsuit was filed in due time.
Special Chamber Reversal Decision:
7. The defendant’s counsel appealed against the above-mentioned decision of the Local Court within the prescribed period.
8. With the decision of the 13th Civil Chamber of the Court of Cassation dated 20.10.2014 and numbered 2014/37088 E., 2014/32238 K;
“The plaintiff stated that the defects appeared later on in the flat he purchased, and that these defects were not eliminated by the defendant, and demanded a repair fee. Court decided to accept the case by adopting that the defects in question were hidden defects in line with the expert report included in the file. The immovable subject to the lawsuit was delivered to the plaintiff on 05.09.2007, and the plaintiff filed the present lawsuit on 14.08.2013, claiming that there were hidden defects in the immovable.
It is understood from the collected evidence and the scope of the file that the immovable subject to the lawsuit has a hidden defect. The hidden defect should be notified immediately upon its discovery. It is understood that the plaintiff did not notify the defendant until the date of the lawsuit. In this case, while it should be decided to reject the lawsuit, the decision to accept the lawsuit with the written justification is contrary to the procedure and the law and is a reason for reversal.”
Decision on Resistence:
9. With the decision dated 26.06.2015 and numbered 2015/475 E., 2015/651 K.; the defendant made a determination with the file numbered 2012/3 D.İş regarding the houses including the property subject to the lawsuit, with this determination, the defendant was aware of the defect before the filing of the case at hand, therefore, the plaintiff no longer has the obligation to inform the plaintiff of the hidden defect,
and that the notification is not subject to form, in the decision of the General Assembly of Law numbered 2009/13-160 E., 2009/185 K, 2009/185 K. numbered decision of the General Assembly of Civil Chambers, which explained that the notice is not subject to form, that the evidence detection report is accepted as a notice of defect, that many acceptance decisions in the same direction have been approved by the Special Chamber, and that there is no situation that requires a different decision to be made regarding the same case.
Appeal of the Resistence Decision:
10. The resisting decision was appealed by the defendant’s attorney within the time limit.
II. DISPUTE
11. The dispute before the General Assembly of Civil Chambers by way of resistance is whether the plaintiff consumer, who claims compensation for the hidden defect detected, has an obligation to notify the court in the event that the seller has made a determination by the court regarding the defect subject to the lawsuit before the date of the lawsuit.
III. REASON
12. Before proceeding to the resolution of the dispute, it would be appropriate to examine the concept of defect in consumer law and the provisions regarding liability for defect.
13. While there are already general regulations to protect the buyer against the sale of defective goods [Art. 194-207 of the Code of Obligations (CO) No. 818 and Art. 25/3 of the Turkish Commercial Code (TCC) No. 6762 in force on the date of the lawsuit], this issue has been regulated separately in the Law No. 4077 on the Protection of Consumers (TKHK), which came into force with the aim of protecting the consumer more effectively.
14. In the first paragraph of Article 4 of the Law No. 4077, which should be taken into consideration in the dispute as of the effective date; “Goods or services that are contrary to the quality and/or quantity stated on the packaging, label, introduction and user manual or promised by the seller or determined in the standard, or that contain material, legal or economic deficiencies that reduce or eliminate their value in terms of allocation or intended use or the benefits expected by the consumer from them, are accepted as defective goods or defective services.”, and the following paragraphs list the formal conditions regarding this.
15. In order to hold the seller liable for the defect in the goods in case of defect, certain material conditions must be fulfilled (existence of a deficiency deemed to be a defect, the defect must be significant, the defect must exist at the time when the benefit and damage of the goods pass to the buyer, the consumer must have purchased the goods without knowing the existence of the defect), and especially formal conditions such as notification of the defect must be met by the buyer.
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16. The legislator has obliged the consumer to notify the addressee of the defect within thirty days following the delivery of the goods in case of an obvious defect (Article 4/II of the TPL). In the case of hidden defects, which cannot be detected by ordinary observation according to the average consumer knowledge or which can be revealed later, the consumer, regardless of this period, should immediately report the defect as soon as possible in accordance with the rule of good faith, as stated in the established jurisprudence, in accordance with the provision of Article 198/II-III of the Code of Civil Procedure with reference to Article 30 of the TPL.
17. The defect shall be subject to the consumer’s optional rights (Art. 4/II-2.c; rescission of the contract including the return of the price, replacement of the goods with a defect-free equivalent or price reduction in proportion to the defect or free repair) (Art. 4/III; seller, manufacturer-manufacturer, seller, dealer, dealer, agent, importer and affiliated credit institutions), provided that it is convenient to notify the addressee, is not subject to any form (Explanation in the same direction is made in the decision of the General Assembly of Civil Chambers dated 13.05.2009 and numbered 2009/13-160 E., 2009/185 K. numbered decision of the General Assembly of Civil Chambers dated 13/05/2009,
it should be noted that this decision mentioned in the decision of resistance is not directly applicable to the concrete dispute since the dispute between the Special Chamber and the court is not precedent to the case at hand). In the law of obligations and consumer law, the form of notice is mostly a matter of proof, and when this issue becomes contentious between the parties, the general rules of proof as well as the prohibition of abuse of right, which is also a general rule, should not be overlooked.
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18. When the concrete case is examined in the light of these explanations; upon the onset of blistering and spalling on the exterior facades of all immovables in the housing project subject to the lawsuit, the defendant, who is the addressee of the lawsuits filed by the consumers, applied to the Eskişehir 3rd Civil Court of First Instance and requested the determination of this situation with the file numbered 2012/3 D.İş. In this way, it is incompatible with the rule of honesty within the meaning of Article 2 of the Turkish Civil Code No. 4721 for the defendant, who knows that the defect exists throughout the project, including the plaintiff’s immovable property, and claims that it should be repaired by the contractor in accordance with the contract between them, to argue that there is no defect notification in the present case.
19. As such, the decision of the local court to resist is in accordance with the procedure and the law and is appropriate.
20. However, since the appellate objections of the defendant’s attorney regarding other issues have not been examined according to the reason for reversal, the file should be sent to the Special Chamber for further examination.
CONCLUSION:
For the reasons explained;
The resistance is appropriate and the file should be sent to the 13th LAW CHAPTER for the examination of the appellate objections of the defendant’s attorney regarding other aspects,
Pursuant to Article 440/III-1 of the Code of Civil Procedure No. 1086, which is being applied according to the provisional article 3 of the Code of Civil Procedure No. 6100, it was unanimously decided on 06.02.2020, with the way of decision correction closed.
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