In The Event That The Requested Penal Clause Is Of Such A Nature As To Cause The Economic Ruin Of The Defendant, It Is Necessary To Make A Decision On The Appropriate Result To Be Reached By Making An Appropriate Discount
T.C Judiciary Court 19th Civil Chamber Esas: 2016/ 9422 Decision: 2018 / 1089 Date of Decision: 01.03.2018
SUMMARY: It is not correct for the court to take the legal interpretations in the expert reports prepared in violation of the provisions of the contract and the law as a basis for the judgment. The work to be done by the court is to determine whether the defendant has violated the provisions of the contract according to the provisions of the contract according to the material facts, since the responsibility to return the contribution share arises from the contract, since his short-term arrest will not constitute a force majeure for him to close the business, It should be based on the calculations made in the current financial advisor expert report in terms of the amount of contribution share and penalty clause that the plaintiff can demand from the defendant, and by evaluating whether the requested penalty clause will cause the economic ruin of the defendant, it should consist of making a decision on the appropriate result to be reached by making an appropriate discount if the requested penalty clause is of a nature that will cause the economic ruin of the defendant. It is contrary to the procedure and the law to decide to dismiss the lawsuit with an erroneous evaluation without considering the aspects explained above.
(6098 S. Code Art. 136)
Case: At the end of the trial of the receivable lawsuit between the parties, the file was examined, upon the appeal of the judgment given for the dismissal of the lawsuit for the reasons written in the judgment by the plaintiff’s attorney within the time limit, the file was examined, the necessity was discussed and thought.
DECISION
The plaintiff’s attorney claimed that an open point of sale contract was signed between the plaintiff company and the defendant to be valid between 01.04.2012-01.04.2016, that contributions were made to the defendant within this scope, but that the defendant caused the transfer of the workplace to a third party before the expiration of one year, and demanded and sued for the termination of the contract without prejudice to the rights of claim and lawsuit arising from the contract, and the collection of the discounted contribution fee of 92,056.00 TL and the discounted penalty fee of 80,437.00 USD from the defendant.
Defendant’s attorney argued that his client was arrested shortly after the signing of the contract, that he was on the verge of bankruptcy due to this unfortunate event, that he had to close his workplace, that his client did not close his workplace arbitrarily, that the amount of the penalty clause requested was exorbitant and that it would cause the ruin of his client and requested the dismissal of the lawsuit.
The court stated that a contract was signed between the plaintiff company and the defendant, the defendant was arrested in the first year of the contract for being a member of an organization established for the purpose of committing a crime, he terminated his activity while his detention continued, the date of termination of activity corresponded to the period of detention, he did not transfer the workplace to a third party in violation of Article 6 of the contract, the performance of the contract became impossible due to the uncertainty of how long the detention would last, in this case, the defendant was not at fault, there was no fault of the defendant, and the TCO Art. 136 regulates the termination of the obligation in case of impossibility of perfect performance, it is not possible to request a penalty clause since the obligation is terminated due to impossibility, the plaintiff delivered 200 kegs of beer to the defendant, pursuant to Art. 136 of the TCO, in case the debt is extinguished, the parties should return what they have taken from each other in contracts that impose mutual obligations in accordance with the provisions of unjust enrichment, the good faith unjust enricher is not obliged to return what has been taken away, as stated in the first expert report, the defendant’s capital is zero, in other words, there is nothing left in his hands, the decision was decided to dismiss the lawsuit, and the judgment was appealed by the plaintiff’s attorney.
It is not correct for the court to take the legal interpretations in the expert reports prepared in violation of the provisions of the contract and the law as a basis for the judgment. The work to be done by the court is to determine whether the defendant has violated the provisions of the contract according to the provisions of the contract according to the material facts, and since the responsibility to return the contribution share arises from the contract, the short-term arrest will not constitute a force majeure to close the business, It should be based on the calculations made in the current financial advisor expert report in terms of the amount of contribution share and penalty clause that the plaintiff can demand from the defendant, and by evaluating whether the requested penalty clause will cause the economic ruin of the defendant, it should consist of making a decision on the appropriate result to be reached by making an appropriate discount if the requested penalty clause is of a nature that will cause the economic ruin of the defendant. It is contrary to the procedure and the law to decide to dismiss the lawsuit in writing with an erroneous evaluation without considering the aspects explained above.
CONCLUSION: For the reasons explained above, it was unanimously decided on 01/03/2018 to VACATE the judgment in favor of the appellant, and to refund the advance fee to the plaintiff upon request. (¤¤)
You can access our other article examples and petition examples by clicking here.