The Defendants Are Shareholders In The Real Estate Subject To The Lawsuit With One Third Share – The Plaintiff Paid The Defendants Separately For Their Shares – Decision On The Acceptance Of The Decision That The Defendants Cannot Be Held Jointly And Severally Liable For The Total Price Paid By The Plaintiff
T.C. JUDICIARY
3rd Civil Chamber
Basis: 2013/9856
Decision: 2013/12617
Date of Decision: 12.09.2013
LAWSUIT FOR DEBT – THE DEFENDANTS ARE SHAREHOLDERS WITH ONE-THIRD SHARES IN THE IMMOVABLE PROPERTY SUBJECT TO THE LAWSUIT – THE PLAINTIFF GAVE MONEY TO THE DEFENDANTS SEPARATELY FOR THEIR SHARES – IT IS NECESSARY TO ACCEPT THAT THE DEFENDANTS CANNOT BE HELD JOINTLY RESPONSIBLE FOR THE TOTAL AMOUNT GIVEN BY THE PLAINTIFF
SUMMARY: The plaintiff party stated that he purchased the immovable property in which the defendants were 1/3 shareholders out of the title deed and that he gave the defendants 10.000 TL each in return for their shares. When the title deed record is examined, it is seen that the defendants are shareholders with 1/3 shares in the immovable subject to the lawsuit. It should be accepted that the defendants cannot be held jointly and severally liable for a total of 30.000 TL given by the plaintiff to the defendants, since the shares of the defendants are known in the title deed and it is understood that the plaintiff gave 10.000 TL to the defendants separately for their shares.
(6098 S. Code Art. 102, 162) (818 S. Code Art. 141)
Case: The judgment rendered by the local court at the end of the trial of the debt case between the parties has been appealed by the defendants’ counsel.
After it was understood that the appeal request was in due time, all the papers in the file were read and considered:
Decision: In the petition for the lawsuit, the attorney for the plaintiffs stated that the parties agreed on the sale of the immovable property with parcel no. 166, block 166, parcel 2 in Edirne Center, İskenderköy, where the defendants are 1/3 shareholders, and that the plaintiffs paid a total of 30.000,00 TL, 10.000,00 TL each to each shareholder, and that the defendants sold this immovable property to a third party a short while ago. the defendants jointly and severally together with the legal interest to be accrued from the date of the lawsuit for the amount of TL 30.000,00 paid to the defendants, stating that although the return of the money paid to the defendants was requested, it was stated that “the money given is a deposit, therefore it cannot be returned”.
In his reply petition, the attorney for the defendants stated that the plaintiff’s right to claim back will start to operate from the date the fees were given, that the right to claim is time-barred, that the fees given by the plaintiffs to the defendants were given in accordance with the agreement made for the sale of the land, that no contract was presented regarding the conditions required for the payment and return of these fees, that there is no other document other than the receipts that TL 10,000 was given to the land owner in the documents presented, and that there is no other document other than the receipts that TL 10,000 was given to the land owner, T.B.K.102 . article, stating that if there is no clarity in the receipt, the payment will be deemed to have been made for the debt, and that the lawsuit should be dismissed for the defendants H. P. heirs due to lack of hostility, and requested the dismissal of the lawsuit.
The court accepted the lawsuit and decided to pay the claimant 30.000,00 TL receivable together with legal interest from the date of the lawsuit, jointly and severally from the defendants, and the judgment was appealed by the attorney of the defendants.
According to the writings in the file, the evidence on which the decision is based, the legal reasons and especially the appreciation of the evidence, the other appellate objections are not relevant.
Joint and several liability is also referred to as chain liability, joint liability, joint indebtedness and chain indebtedness. In private law, joint liability is based on the “presumption of succession”. The presumption of succession means that each of the multiple debtors is liable to the creditor or the debtor is liable to each of the multiple creditors for the entire debt. Joint liability is generally regulated under Article 162 of the Turkish Commercial Code No. 6098 (Article 141 of the Turkish Commercial Code No. 818). According to this article, joint and several liability is the situation where “If each of more than one debtor declares that he accepts to be responsible for the entire debt against the creditor, joint and several liability arises.” Paragraph 2 of the same article stipulates that “If there is no such notification, joint and several liability arises only in cases stipulated by law”.
Joint and several indebtedness is a state of joint indebtedness in which each of more than one debtors of a divisible performance is obliged to perform the entire performance due to a declaration of will or a provision of law, and the creditor will release the others from the debt against the creditor at this rate by the performance of one of the debtors or the act that replaces the performance in order to obtain the entire performance only once.
In the concrete case, the plaintiff party stated that the defendants purchased the immovable property in which they were 1/3 share owners out of the title deed and gave the defendants 10.000 TL each in return for their shares. When the title deed record is examined, it is seen that the defendants are shareholders with 1/3 shares in the immovable subject to the lawsuit. Since the shares of the defendants are clear in the title deed and it is understood that the plaintiff gave 10.000 TL each to the defendants for their shares, it was not deemed correct that the defendants were held jointly and severally liable for a total of 30.000 TL given by the plaintiff to the defendants.
Conclusion: In this respect, it is inappropriate to establish a judgment in the written manner without taking into account the principles explained above, and since the appellate objections are appropriate for these reasons, it was unanimously decided on 12.09.2013 that the judgment shall be DISMISSED in accordance with Article 428 of the Code of Civil Procedure and the prepaid appeal fee shall be returned to the appellant upon request.