Compensation Case Court Of Cassation Decision
T.C JUDGMENT
13th Civil Chamber
Main: 2017/ 5241
Decision: 2018 / 12169
Decision Date: 17.12.2018
Case: At the end of the trial of the compensation lawsuit between the parties, the file was examined and discussed upon the appeal of the judgment given for the acceptance of the lawsuit for the reasons written in the judgment by the defendants’ attorney within the time period.
The plaintiff stated that he purchased the independent section numbered C1-2 Block D:51 from the project named “…” built by the defendants on 16.01.2008, the house was delivered on15.12. 2008, after the delivery, the defects related to his own residence and common areas were notified to the defendants both by him and the other floor owners, and also the commitments promised to the customers within the scope of the project were not fulfilled, there were incomplete and defective works, claiming that he suffered damages due to the deficiencies concealed by gross negligence and fraud and causing loss of value in the immovable property, and for the time being, without prejudice to his rights regarding the surplus, he is entitled to a sum of TL 15. 000.00 TL for the time being, and with the amendment petition submitted during the trial, a total of 28.069.00 TL to be decided to be collected from the defendants.
The defendants defended that the apartment was delivered to the plaintiff in full and complete, that there were no defects and deficiencies, and that the defect notification obligation was not fulfilled in due time and requested the dismissal of the lawsuit.
The court, by complying with the reversal, decided to accept the lawsuit and to award the plaintiff 28,069 TL of the 28,069 TL pecuniary compensation together with the interest to be calculated by applying the variable legal interest rate as of the breeding date of 20/02/2012 to the 13,069 TL part, jointly and severally from the defendants; the judgment was appealed by the defendants.
1-According to the writings in the file, the fact that the court has rendered a judgment in accordance with the reversal decision complied with and that it is no longer possible to examine the appellate objections regarding the aspects that have been finalized outside the scope of the reversal, the appellate objections of the defendants other than the scope of the following paragraph should be rejected.
2-The case is about the claim for the payment of the loss of value of the house purchased by the plaintiff due to the works specified in the project and promotions presented during the sale but not performed or incomplete in accordance with them.
The defendants stated that there were no defects and deficiencies, and that the notice of defect was not made in due time, and requested the dismissal of the lawsuit.
Since the plaintiff is a consumer, the regulation regarding the defect related to consumer law is included in Article 4 of the Law No. 4077 on the Protection of Consumers (TKHK).
In the first paragraph of the said article; “Goods or services that are contrary to the quality and/or quantity specified in the packaging, label, introduction and user manual or promised by the seller or determined in the standard, or that contain material, legal or economic deficiencies that reduce or eliminate their value in terms of allocation or intended use or the benefits expected by the consumer from them, are considered defective goods or defective services.”, and the following paragraphs list the formal conditions regarding this.
Defect is the lack of one or more of the elements stipulated in the law or contract, or the lack of qualities that should not be present.
As explained in detail above, the rights and obligations of the parties in the event of defective goods are regulated in Article 4 of the Law No. 4077 on the Protection of Consumers, as amended by Law No. 4822; separate notice periods have been introduced for the cases where the defect is hidden or open, and it is clearly stated that the statute of limitations cannot be utilized if the defect is concealed by gross negligence or fraud.
According to the Article, the consumer shall make the necessary inspection of the goods and services provided to him/her, and as a result of this inspection, he/she shall notify the party to the contract that provides the goods or services to him/her of the defects he/she detects in the goods or services within the notice periods starting from the provision of the goods or services; in case of neglect of this duty of notification (notice of defect), the consumer shall lose his/her legal rights based on the defect. As stated in Article 223 of the Code of Obligations No. 6098 (Article 198/2 of the Code of Obligations No. 818), failure to notify the defect will result in the consumer’s acceptance of the goods or services subject to performance as they are, and the contrary of this assumption cannot be proved in any way.
According to the provision of paragraph 2 of Article 4 of the TPL No. 4077 in force as of the date of the lawsuit; the consumer is obliged to notify the seller of obvious defects within thirty days from the date of delivery of the goods. In this case, the consumer has the right to rescind the contract, including the return of the price, replacement of the goods with a defect-free equivalent or a price reduction in proportion to the defect or free repair. The seller is obliged to fulfill this request preferred by the consumer.
There is no provision in the Law on the Protection of Consumers on how long the hidden defects should be notified to the seller. Thus, pursuant to Article 30 of the Consumer Protection Law No. 4077, in cases where there is no provision in this law, it is necessary to resolve the dispute in accordance with the general provisions, and according to Article 223 of the TCO No. 6098 in force on the date of the lawsuit (Article 198 of the Code of Obligations No. 818), the buyer is obliged to inspect the goods received as soon as it is possible, according to the ordinary course of business, and when he sees a defect that requires the seller’s responsibility, he is obliged to notify the seller within the appropriate period. If he neglects to do so, he shall be deemed to have accepted the goods. However, if there is a defect in the goods that cannot be discovered by an ordinary inspection, if this defect is discovered later, if he does not notify the seller immediately, he is deemed to have accepted the goods with this defect. In that case, hidden defects must be notified immediately (as soon as possible in accordance with the rule of good faith) within the statute of limitations and after the defect is revealed; and the knowledge of an average (average) consumer must be taken into consideration in determining whether the defect is open or hidden.
When the concrete case is examined in the light of these explanations; it is understood with the scope of the file that the independent section purchased by the plaintiff on 16.01.2008 was delivered to the plaintiff on 15.12.2008 and this lawsuit was filed on 09.06.2010.
Regarding the missing works in the reversal decision of our chamber, which is complied with by the court, if the social facilities subject to the requested lawsuit have been built by the defendants and the project has been completed by eliminating the deficiencies, it is decided that there is no need to decide on this issue since the case will not be subject to this aspect, and if there are still social facilities under construction, It has been stated that it is necessary to determine whether the plaintiff has concrete damages arising from the fact that the plaintiff does not benefit from these facilities and to award this damage in case of determination of concrete damage, and if there are social facilities that have not been built and it is certain that they will not be built in the future, the damage suffered by the plaintiff due to them should be calculated according to the relative method and a decision should be made in accordance with the result. In this case, the court complied with the reversal order for research and in the expert report taken as basis for the judgment; the … project subject to the lawsuit has not yet been fully completed, the market and commercial areas determined to be in place during the discovery do not coincide with what was promised, they are areas belonging to different sites in a scattered structure, these promised facilities have not been built in terms of their location and size, the contractor of the “… Family Health Center” built on block 520, parcel 4 is … Holding A.Ş. There is no health facility built by the defendants, the health services on block 546, parcel 2 are in the nature of a shack, no health facility promised to the plaintiff has been built, religious facilities and schools are far away from the site subject to the lawsuit, the plaintiff cannot easily benefit from and cannot be connected to the site, and there is no document in the file showing that they were built by the defendants; It is undoubted that the fact that these were not done is a clear defect that reduces the economic value of the independent section purchased by the plaintiff, that the defendant did not resort to any fraud to conceal this defect, and that the plaintiff could have easily learned about these defects on the date of purchase and delivery of the independent section. It is also understood that the plaintiff did not report the defect to the defendant within 30 days from the date of delivery of the goods in accordance with Article 4 of Law No. 4077. The precedent practices of our Chamber in similar disputes are in this direction, as well as the decision of the Supreme Court of Appeals General Assembly of Civil Chambers dated 4.12.2015, 2015/13-1581 main and 2015/2792. As such, while it should be decided to reject the lawsuit in terms of these items, the decision to accept this request with the wrong evaluation and written justification is against the procedure and the law and is a reason for reversal.
CONCLUSION: For the reasons explained in subparagraph 1 above, the other appellate objections of the defendants are rejected, for the reasons explained in subparagraph 2 above, the appealed decision is DISMISSED in favor of the defendants, the advance fee of 479,50 TL is paid to the defendant …, 60,00 TL is paid to the defendant … Konut Gayr. Partnership, TL 59,24 to the defendants …, Construction and … Paz. Construction, it was unanimously decided on 17.12.2018, with the way of decision correction open within 15 days from the notification in accordance with Article 440/I of the Code of Civil Procedure.