Deed Cancellation And Registration
T.C.
JUDICIARY
LAW DIVISION
2012/10938
2012/10436
01.10.2012
* ALLEGATIONS OF DISORDER OF WILL AND EXCESSIVE BENEFIT IN LEGAL PROCEEDINGS (Can be Proved with All Kinds of Evidence/It Was Wrong Not to Hear the Plaintiff Witnesses – Elements of Mistake, Fraud and Gimmickry/Exclusionary Periods)
* LACK OF WRITTEN EVIDENCE REQUIREMENT (Local Court Should Observe That Claims of Irregularity of Will and Excessive Benefit in Legal Transactions Can Be Proved by Any Evidence – Failure to Hear the Plaintiff Witnesses is Erroneous)
* WITNESS EVIDENCE (Claims of Irregularity of Will such as Mistake, Fraud and Gabin can be proved with all kinds of evidence – The Court did not take this into consideration / Insufficient Research was conducted / Plaintiff’s Witnesses Should be Listened to)
* TIME LIMITATION OF LAWSUIT IN CASE OF GABIN (Cancellation Lawsuit Can Be Filed Within the One-Year Limitation Period – Determination of the Excessive Disproportion Between the Acts – Investigation of the Psychological Structure and Subjective Elements of the Damaged Person)
* LEARNING OF THE FRAUD (A lawsuit can be filed within the one-year prescriptive period – The statement of will directed to the other party through defamation is also valid / It is possible to prove the claim with all kinds of evidence / There is no written evidence requirement)
* SUIT FOR CANCELLATION AND REGISTRATION OF THE REGISTRATION OF THE PROPERTY DEED BASED ON THE CAUSES OF ERROR, ERROR AND GABIN (There is no obligation to prove with written evidence – Even if there is no written document, it is possible to prove with all kinds of evidence / Plaintiff Witnesses Should be Listened to) 6098/m. 28,36 818/m. 21,28 6100/m. 203
SUMMARY : The lawsuit is related to the request for cancellation and registration of the title deed based on the legal grounds of mistake, fraud, and gabin.The court decided to dismiss the lawsuit on the grounds that the claim must be proved by absolute written evidence.However, it is possible to prove the allegations of error and fraud and over-exploitation in legal transactions such as error and fraud and gabin with witnesses and all kinds of evidence, even if there is no written document.Error is a mistake and fraud is misleading.The fraud can be proved by all kinds of evidence, and the use of the right of cancellation does not depend on any form. The existence of gabin (excessive exploitation) gives the injured party (the exploited party) the right to file an action for annulment within one year from the date of the contract, stating that he is not bound by the contract within one year from the date of the contract, and to prove his claim with all kinds of evidence and to request the return of what he has given. In the case of gabin (excessive exploitation), first of all, the excessive disproportion between the performances should be focused on, and if the objective element is proved, the subjective element, that is, the material and moral aspects such as the personality, age, health status, place in the society, economic power and psychological structure of the victim, should be investigated and examined in depth. The court did not conduct an investigation covering the principles and facts explained above, and the plaintiff’s witnesses were not heard, and the request to hear witnesses was rejected.
LAWSUIT : At the end of the “deed cancellation and registration” lawsuit between the parties, the decision of the local court regarding the rejection of the lawsuit was appealed by the plaintiff within the legal period, the file was examined, the report of the Examining Judge İlknur ACAR was read, her explanations were listened to, and the necessity was discussed and considered:
DECISION : The lawsuit is related to the request for cancellation and registration of the title deed based on the legal grounds of mistake, fraud and gabin. The court decided to dismiss the lawsuit.
From the file content and the collected evidence; it is understood that the plaintiff assigned the independent section numbered 16 on the parcel 6064, block 3, parcel 3, which is the subject of the dispute, to the defendant, who is his daughter-in-law, through sale on 09/02/2010.
The plaintiff filed the present lawsuit claiming that he assigned his immovable property with the suggestion of his son and daughter-in-law in order to contribute to the financial difficulties of his daughter, that the price was not paid, that he was 71 years old, that he was deceived, that the said assignment was carried out by fraud, and that the value in the contract was shown very low.
As it is known; cheating is generally defined as intentionally arousing a mistaken belief in order to induce someone to make a declaration of will, especially to make a contract, or to protect or maintain an erroneous belief that actually exists. As explained in Article 36/1 of the Turkish Code of Obligations No. 6098, which entered into force on 01/07/2012 (Article 28/1 of the Code of Obligations No. 881), “If one of the parties has made a contract as a result of the deception of the other, even if his mistake is not fundamental, he is not bound by the contract. In the presence of the aforementioned conditions, the deceived party may, by exercising its right, terminate the legal relationship with retroactive effect (maximally applicable) and may demand the return of what it has given.
On the other hand, the fraud may be proved by any evidence and the exercise of the right of rescission does not depend on any form. It may also be exercised through a statement of will, a defense or a lawsuit to be directed to the other party within the one-year prescriptive period from the date of learning of the fraud.
On the other hand, in order for the contract to be deemed to be causative due to gabin (over-utilization), the disproportion between the performance and counter-performance must occur as a result of one of the parties knowingly exploiting and exploiting a special situation existing in the person of the other party. Due to their narrow and difficult situation, in order to protect the people who have been dragged into making contracts and transferring their goods at a very low price, regulations have been made in our law in order not to crush the weak to the strong, Article 28 of the Turkish Code of Obligations No. 6098, which entered into force on 01/07/2012 (Article 21 of the Code of Obligations No. 818). Article 28 of the Turkish Code of Obligations No. 6098 (Article 21 of the Code of Obligations No. 818), which entered into force on 01/07/2012, provides that “If there is a disproportion between the mutual obligations in a contract, if this disproportion is realized by taking advantage of the difficult situation of the injured party or his/her thoughtlessness or inexperience, the injured party may request the return of his/her performance by notifying the other party that he/she is not bound by the contract or to eliminate the disproportion between the obligations by adhering to the contract, depending on the nature of the situation.”.
Therefore, in order to be able to speak of gabin (excessive exploitation), in addition to the objective element of excessive disproportion between the performances, two subjective elements such as the existence of one party’s narrowness, inexperience, thoughtlessness (lightness) and the other party’s intention to exploit and exploit must be realized. The existence of gabin (excessive exploitation) gives the injured party (the exploited party) the right to file an action for annulment within a period of one year from the date of the contract, stating that he is not bound by the contract, to prove his claim with all kinds of evidence and to demand the return of what he has given.
It should be noted immediately that in the case of gabin (excessive exploitation), first of all, the excessive disproportion between the performances should be emphasized, and if the objective element is proved, the subjective element, i.e. material and moral aspects such as the personality, age, health status, place in society, economic power and psychological structure of the victim, should be investigated and examined in depth.
As for the concrete case; the court decided to dismiss the lawsuit on the grounds that the acquisition of ownership is possible through official deed and registration and that the claim must be proved by absolute written evidence. However, in the face of the principles and facts explained above and the regulation in Article 203/ç of the CCP No. 6100 (Article 293/5 of the Code of Civil Procedure No. 1086), it is clear that it is possible to prove the claims of defect of will and excessive benefit in legal transactions by witnesses and all kinds of evidence, even if there is no written document.
However, the court did not conduct an investigation in a way to cover the principles and facts explained above, and the plaintiff’s witnesses were not heard, and the request to hear witnesses was rejected.
As such; it is not correct to make the necessary research in line with the claims and evidence of the parties and the principles explained, to obtain explanatory and satisfactory concrete information from the witnesses in this direction, to determine the value of the immovable subject to cancellation on the date of assignment through expert experts, to make an evaluation in terms of the claim of gabin (excessive benefit) if the fraud claim cannot be proven, and to make a judgment according to the result to be obtained, but it is not correct to conclude with an incomplete investigation as written.
CONCLUSION : The plaintiff’s appeal objections in this respect are appropriate. It was unanimously decided on 01.10.2012 that the judgment shall be annulled in accordance with Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100) for the reasons explained, and the advance fee shall be returned to the appellant.