What Is The Supreme Court’s Opinion On Equity?
THE APPROACH OF THE COURT IS CONTRARY TO EQUITY:
The approach of the Court of Cassation on this issue is also contrary to equity. Namely
As explained above, the majority of the construction contracts in return for flats are arranged in such a way that the obligation to transfer the land title deed is fulfilled after the construction is completed. For this reason, the legislator has tried to secure the rights of contractors and artisans with a legal mortgage. While this was the common practice, the landowner departed from this practice and transferred the title deed to the contractor before the construction started, making him both the owner and the right of disposition. Most probably, he accepted this in order to buy more flats and took the risk for a higher profit. Moreover, the third party did not ask for any other guarantee from the contractor, thinking that “I have the title deed anyway”, i.e. the risk was very low.
Indeed, if the contractor the third party would perhaps have refused to buy the apartment, or perhaps would have demanded a guarantee from the contractor. In this case, the landowner, who has handed over his strong legal position to the contractor by his own hand, and who has transferred the real right to the contractor, who should only have a personal right, against the landowner, who has transferred the real right to the contractor, shopping with the comfort and confidence of receiving the title deed from the contractor protecting the third party who does not require a guarantee with this trust would also be in accordance with equity.
However, the Court of Cassation, leaving the concept of the right in rem completely aside, protects the landowner who has transferred the guarantee to the contractor, and victimizes third parties on the grounds that they should only know the landowner’s right of return. Moreover, a large number of these third parties have spent their life-long hard work and small savings in the hope of buying an apartment that he could afford. Taking away his remaining land share would ruin his entire life. In this respect, the equitable solution is to protect the third party who buys an apartment from the landowner against the landowner who transfers his means to the contractor.
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