If The Performance Of The Contract Of Promise Of Sale Is Impossible, The Fair Value On The Date Of The Lawsuit Should Be Calculated
14th Civil Chamber 2021/17 E. , 2021/937 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the hearing held on the request for cancellation and registration of the title deed and compensation in the second stage with the petition given by the plaintiffs’ attorney on 07/05/2013 against the defendants; the Supreme Court of Appeals examination of the judgement dated 11/07/2016 on the partial acceptance of the case was requested by the attorneys of the defendants … and …, and it was decided to accept the petition of appeal, which was understood to be in due time, and then the file and all the papers in it were examined and considered accordingly:
DECISION
The lawsuit is related to the cancellation and registration of the title deed and compensation in the second stage.
The attorney for the plaintiffs stated that …, the grandson of his clients, purchased the parcel 293 in the neighbourhood of … from the defendants’ grandsons … and …, who were joint owners, with a real estate sale promise agreement dated 07.07. 1970 dated 07.07.1970 dated real estate sales promise contract from the defendants … and …, who are joint owners, and since then it has been used by the muris … and then by his heirs, who are his clients, without interruption and without interruption, the promise debtor … died in 1974 and the promise debtor … died in 1981, the defendants,
who are his heirs, did not want to transfer the immovable property in the title deed for many years, and in 2011 they sold the immovable property to third parties by performing the transfer procedures in the title deed. They stated that they sold the immovable to third parties and had the sales promise annotation that appeared on the title deed removed, and asked for the cancellation of the sale, and if not, to determine the current market value of the immovable and to give it to their clients with interest to be charged.
The attorney for the plaintiffs, with the amendment petition dated 05.05.2016, increased the value of the lawsuit and demanded a total of 114.590,00 TL together with the interest to be accrued and to be accrued.
Attorneys of some of the defendants defended the rejection of the lawsuit.
The court, with partial acceptance of the lawsuit;
1- Although a lawsuit was filed by the plaintiff’s attorney for the heirs of … with the request to award compensation for the amount of the amount to be determined in accordance with the fair value and the principle of equalising justice, whichever is more, since the plaintiff’s attorney waived the lawsuit filed for the share corresponding to … due to the fact that this share was sold to the plaintiffs, the lawsuit filed for the amount of the share corresponding to the share of … is dismissed due to waiver,
2-… The immovable registered in the name of …. at the rate of 1/8 in the former parcel numbered 293, as a result of the zoning application … province, … district, … village, … district, … village, 11272 island, 3 parcel, 1606/12841 shares and 8732 island, 8 parcel, 31/6833 shares, and since the possibility of performance of the promise of sale is not possible as a result of the disposal of the immovables based on the promise of sale by the defendants on 13/09/2011,
the defendant … for 14. 324,10.-TL for the defendant …, 28.647,60.-TL for the defendant …, 28.647,60.-TL for the defendant …, 14.324,10.-TL for the defendant …, 7.161,85. -TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25. -TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1. 953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, 1.953,25.-TL for the defendant …, together with the legal interest to be accrued as of 13/09/2011, it was decided to be taken from the defendants and given to the plaintiffs … … heirs in proportion to their shares.
The judgement was appealed by the attorneys of the defendants … and …..
The contracts of promise of sale of immovable property, which take their source from Article 29 of the Turkish Code of Obligations, are a type of contract that must be drawn up ex officio before a notary public in accordance with the provisions of Article 237 of the Turkish Code of Obligations, Article 706 of the Turkish Civil Code and Article 89 of the Notary Public Law, in other words, its validity is subject to the official form requirement, imposes obligations on both parties and provides personal rights. Promissory creditor may request the fulfilment of the obligation from the seller, who is obliged to transfer the ownership with the immovable property sales promise agreement, in the cancellation and registration of the title deed lawsuit to be filed pursuant to Article 716 of the Turkish Civil Code when the performance is not fulfilled.
In order to decide on the acceptance of the lawsuits arising from the sales promise agreement, the contract must have the possibility of performance. When there is no possibility of performance of a valid contract, Articles 77 and 136 of the Turkish Code of Obligations should be taken into consideration.
In the concrete case; a valid sales promise agreement dated 07.07.1970 and numbered 15145 was issued between the parties at the … 5th Notary Public, and it was stated in the agreement that the price determined by the parties was paid in cash and in full by the plaintiffs’ muris to the defendants’ muris. Thus, it should be accepted that the plaintiff has fulfilled its obligation arising from the sales promise agreement, since it will be necessary to prove that the price stated to have been paid in the official contract has not been paid, but with other evidence of the same value.
On the other hand, it is clear that the performance in the form of transfer to the plaintiffs arising from the sales promise agreement has become impossible since the immovable property has been transferred to third parties in the title deed by the defendants … heirs. For this reason, it was not deemed correct to calculate compensation based on the date of transfer to third parties, while the fair value of the immovable properties subject to the lawsuit should be calculated as of the date of filing the lawsuit in accordance with Articles 77 and 136 of the Turkish Code of Obligations in accordance with the contract that maintains its validity as a commitment transaction, and the judgement should be reversed for this reason.
CONCLUSION:
For the reasons explained above, it was decided unanimously on 15.02.2021, with the acceptance of the appeal objections of the defendants … and … attorneys, the judgement will be reversed, the advance fee will be returned to the depositors, and the way of correction of the decision will be open within 15 days from the notification of the decision.
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