Decision On Contract Cancellation Case
T.C. JUDICIARY
13th Civil Chamber
Basis: 2003/2749
Decision: 2003/5860
Date of Decision: 12.05.2003
ANNULMENT OF THE CONTRACT – ASSIGNMENT CONTRACT – DEFECTIVE SERVICE CLAIM – JUSTIFIABILITY OF THE TERMINATION – PRINCIPLES OF THE REFUND OF THE PRICE – THE NEED TO MAKE A DISCOUNT AS MUCH AS THE BENEFIT PROVIDED FROM THE SERVICE RENDERED
SUMMARY: It is also prohibited to make advertisements and advertisements that deceive, mislead or exploit the consumer’s lack of experience and knowledge. The plaintiffs are justified in terminating the contract. In this case, the plaintiffs may demand the return of the price paid and the promissory notes and duplicate promissory notes that have not yet been paid. However, if it is impossible to render the defective service again, or if it is of a nature that will have consequences contrary to the purpose, the refund shall be reduced by the amount of the benefit provided by the consumer from the defective service.
(4077 S. K. Art. 4, 16)
Case: At the end of the trial of the contract cancellation case between the parties, the judgment given for the dismissal of the lawsuit for the reasons written in the judgment was appealed by the plaintiffs’ attorney with a hearing, and a summons was sent to the relevant parties. On the appointed day, the attorney representing the plaintiffs, Mr. Ş. A. Işık came and since the other party was not present, the hearing was started in his absence and after the oral explanation of the attorney present was heard, it was left to another day for the decision. This time, it was determined that the petition for appeal was in due time, and the file was examined and considered accordingly:
Decision: The plaintiffs claimed that they made a timeshare vacation contract with the defendant dated 5.8.1999, that they used their timeshare vacation right in 2001, but that many of the elements promised by the defendant in the promotional brochure were not available in the facility subject to the lawsuit, and requested a decision on the invalidity of the contract due to defective service and the return of the 3300 dollars and 210.000.000 liras they paid and the outstanding promissory notes and duplicate promissory notes.
The defendant did not respond to the lawsuit.
The court decided to dismiss the lawsuit; the judgment was appealed by the plaintiffs.
The plaintiffs stated that they used their timeshare vacation right in accordance with the timeshare vacation contract they made with the defendant, but they filed this lawsuit for the invalidity of the contract due to defective service. After the plaintiffs used their timeshare vacation right between August 11 and August 18, 2001, they notified the defendant company upon their return from their vacation, and then sent the notice dated 3.9.2001 and requested the return of the money they paid and the promissory notes they gave. During the trial, discovery was made in the facilities of the defendant where the plaintiffs vacationed and in the expert report, the features that were promised in the promotional brochure but were not available in the facility were listed. Although it was stated in the promotional brochure that the defendant’s facility had ski slopes up to 12 kilometers long, fireplaces in the houses, an indoor swimming pool and a five-star hotel, it was understood that these were not present in the facility subject to the lawsuit. Likewise, it is also explained in the expert report that the football-volleyball-basketball courts, whose pictures are printed in the promotional brochure, are not of the same quality in the facility in the case. In this case, the service provided by the defendant is a defective service defined in Article 4/1 of Law No. 4077. In addition, pursuant to Article 16 of Law No. 4077, it is prohibited to make advertisements and advertisements that are deceptive, misleading or exploiting the consumer’s lack of experience and knowledge. The plaintiffs are justified in terminating the contract. In this case, the plaintiffs may request the return of the price they paid and the promissory notes and duplicate promissory notes that have not yet been paid. However, pursuant to Article 4/5 of the Law No. 4077, if it is impossible to see the defective service again or if it is of a nature that will have consequences contrary to the purpose, a discount is made in the refund of the price as much as the benefit provided by the consumer from the defective service. The court should determine the price for the one-week period during which the plaintiffs took a vacation by means of an expert expert and deduct this amount from the sales price to be refunded. The rejection of the lawsuit as written is contrary to the procedure and the law and is a reason for reversal.
Conclusion For the reasons explained above, it was unanimously decided on 12.05.2003 that the appealed decision shall be DISMISSED in favor of the plaintiffs and 275.000.000 liras of attorney fees for the hearing shall be paid to the plaintiffs by the defendant.