Housing Construction Co-operative Is Not A Consumer
3rd Civil Chamber 2020/8172 E. , 2021/2772 K.
“Case Law Text”
COURT : …. REGIONAL COURT OF JUSTICE …LAW DEPARTMENT
As a result of the appeal examination made by the regional court of justice regarding the decision on the rejection of the cancellation of the objection seen in the first instance court between the parties; The decision given for the rejection of the plaintiff’s appeal was appealed by the plaintiff’s attorney with a hearing; On 16/03/2021, which was set as the hearing date, the plaintiff’s attorney Av. … came. The open hearing started and after listening to the verbal explanations of the attorney who was present, it was deemed appropriate to leave the matter to 14.00 for the examination and decision, at a certain hour, all the papers in the file were read, the explanations of the Examining Judge were heard and the necessity was considered:
JUDGEMENT OF THE COURT
The plaintiff claimed that pursuant to the real estate purchase and sale and commission agreement signed between the real estate broker and the seller of the immovable property and the president Yılmaz Salık on behalf of the defendant cooperative, the parties agreed on the purchase and sale of the immovable property subject to the contract in return for the flat, that the defendant buyer accepted and undertook to pay a commission fee of 3% over the fair value of the real estate, but did not pay this fee, and that he objected unfairly to the enforcement proceeding initiated for the collection of the receivable, and requested the cancellation of the objection and the award of execution denial compensation.
Defendant argued that the president of the co-operative, whose signature was on the contract, did not have the authority to make the co-operative indebted by himself and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit, and the plaintiff appealed against the judgement.
… The 17th Civil Chamber of the … Regional Court of Appeals decided to reject the plaintiff’s appeal in accordance with Article 353/1-b.1 of the CCP, since there is nothing contrary to the law in terms of procedure and substance in terms of the court’s factual and legal assessment in the decision of the … 7th Consumer Court dated 12/10/2017, numbered 2016/629 main, 2017/635 decision, in terms of the scope of the file, the state of evidence, and the judgement was appealed by the plaintiff.
1- The lawsuit is the cancellation of the objection to the enforcement proceeding initiated for the collection of the fee arising from the brokerage agreement. The case was rejected by the court of first instance, and the Regional Court of Justice stated that “…Although the plaintiff claims that it is contrary to the rules of good faith to claim that the contract is invalid due to the single signature of the contract, the follow-up made by the plaintiff is long after the contract and the defendant has the right to claim the invalidity of the contract in his objection to the follow-up and in his response to the lawsuit.
He asserted this defence when he encountered the proceeding and the lawsuit. In addition, the amount to be paid to the plaintiff is not clear in the agreement. Brokerage agreements must be made in writing and the fee to be paid must be shown in the agreement. For these reasons, it was decided to reject the appeal on the grounds that “no claim can be made based on the invalid contract”.
According to Article 3 of the Law No. 6502 on the Protection of Consumers, which was in force at the time the lawsuit was filed, consumer refers to the natural or legal person acting for commercial or non-professional purposes, and consumer transaction refers to all kinds of contracts and legal transactions, including contracts of work, carriage, brokerage, insurance, proxy, banking and similar contracts, established between consumers and natural or legal persons, including public legal entities, acting for commercial or professional purposes or acting on their behalf or account in the goods or services markets.
In order for a legal transaction to be considered a consumer transaction, it must comply with the definitions stated above. The defendant is a housing construction co-operative and does not qualify as a consumer. Likewise, although the plaintiff is a real estate broker, since the co-operative is not a consumer, the general courts are competent to hear the case since it is understood that the relationship between the parties is outside the scope of Law No. 6502. The inclusion of brokerage contract relations within the scope of the consumer law does not result in the case where one of the parties is not a consumer to be heard in the consumer court.
The issue of jurisdiction is a matter of public order and must be taken into consideration by the court at every stage and there can be no vested right in the matter of jurisdiction. In this case, while the court should make a decision of non-jurisdiction on the grounds that the civil court of first instance has jurisdiction, it is contrary to the procedure and the law to establish a judgement by hearing the case in the consumer court, and this is a reason for reversal.
2-According to the reason for reversal, it is not necessary to examine the plaintiff’s appeal objections for now.
CONCLUSION:
For the reasons explained in subparagraph 1 above, the decision of the 17th Civil Chamber of the … Regional Court of Appeals on 26/06/2019 day 2018/1471 Esas 2019/1324 Decision numbered decision of the 17th Civil Chamber of the … Regional Court of Appeals on 26/06/2019 day 2018/1471 Esas 2019/1324 Decision numbered decision to reject the appeal application for the decision given by the first instance court is revoked and the judgement of the …
7th It was decided unanimously on 16/03/2021 that the judgement of the Consumer Court numbered 2016/629 Esas 2017/635 Decision be DISMISSED, for the reasons explained in paragraph 2, the other appeal objections of the plaintiff are not examined at this stage, the attorney fee of 3.050,00 TL for the Court of Cassation hearing be taken from the defendant and given to the plaintiff, the file be sent to the court of first instance, and a copy of the decision be sent to the … Regional Court of Appeal.
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