The Court Of Cassation’s Decision On The Judge’s Reduction Of The Penal Condition
T.C.
COURT OF CASSATION
LEGAL DEPARTMENT
2015/28987
2017/12575
18.12.2017
* CLAIM FOR DEBT (The plaintiff acted as an intermediary in the signing of a purchase and sale agreement between the seller and the buyer by finding real estate with the characteristics sought by the plaintiff in accordance with the brokerage agreement signed between the plaintiff and the defendant – Whether the Penalty Clause Sought from the Defendant Who Withdrew from the Sales Contract is Excessive Must Be Determined by the Judge – The Judge May Reduce the Penalty Clause if Deemed Excessive)
EXCESSIVENESS OF THE PENALTY CLAUSE (The judge is obligated to reduce penalties deemed excessive/An assessment must be made regarding the excessiveness of the penalty clause by investigating the socio-economic circumstances of the parties, and a decision must be made in accordance with the outcome)
THE JUDGE’S REDUCTION OF THE PENAL CONDITION (The court must evaluate whether the penalty clause is excessive based on the evidence in the file, and if it is excessive, reduce it and issue a decision in accordance with the outcome; however, completely waiving the penalty clause is inappropriate)
818/Article 161
SUMMARY: The case concerns a claim for debt.
Pursuant to Article 161/final of the Turkish Code of Obligations, the court is obligated to reduce penalties deemed excessive by the judge and must assess this provision ex officio. The court should have investigated the parties’ socio-economic circumstances, assessed whether the penal clause was excessive, and rendered a decision consistent with the outcome. The decision was overturned on this ground, The court failed to fully comply with the requirements of the reversal and decided to reject the penal clause in its entirety.
Under Article 161/final of the Turkish Civil Code No. 818, the judge may reduce a penal clause deemed excessive in valid contracts, but there is no provision allowing the judge to completely eliminate it.
The court should have evaluated whether the penal clause was excessive based on the evidence in the file, and if so, reduced it and issued a decision consistent with the outcome. However, the decision to completely remove the penal clause is incorrect.
CASE: Following the trial of the debt claim between the parties, the judgment partially accepting and partially rejecting the claim was appealed by the plaintiff’s attorney within the prescribed time limit. The case file was reviewed, and the following decision was reached:
DECISION: The plaintiff claims that, pursuant to the brokerage agreement signed with the defendant, they acted as an intermediary in the signing of a purchase and sale agreement between the seller and the buyer for a property meeting the specified criteria. The agreement stipulates that the seller shall pay a commission fee of 3% of the property’s value, which is 218,000.00 TL, 3% of the commission fee would be paid by the buyer, and that if either party withdrew from the sales contract, the withdrawing party would be responsible for paying the commission fee owed by both parties. The plaintiff claims that despite sending a notice of default on January 22, 2008, requesting payment of the commission fee owed by both parties, no payment was made, and therefore requests that the defendant be ordered to pay 13,080.00 TL plus commercial interest accruing from the date of default.
The defendant requests that the case be dismissed.
The court partially accepted the claim and ruled that 6,540.00 TL, plus commercial interest accruing from February 2, 2008, be collected from the defendant and paid to the plaintiff, and that the excess claim be dismissed; the plaintiff appealed the ruling.
The plaintiff, acting as a real estate agent, brought the defendant and the owner of the apartment outside the lawsuit together and had them sign a contract for the sale of the apartment. After the defendant decided not to buy the apartment, the plaintiff filed this lawsuit to collect the commission fee of 13,080.00 TL that both parties were required to pay under the contract. Upon the appeal of the court’s decision to accept the case, our court conducted an appeal review and concluded that a 3% commission fee was agreed upon in the contract dated January 8, 2008, and the remaining 3% was a penalty clause. Pursuant to the last clause of Article 161/ , the court is obligated to reduce penalties deemed excessive by the judge and must assess this provision ex officio. The court should have investigated the parties’ socio-economic circumstances to determine whether the penal clause was excessive and render a decision consistent with the outcome. The court failed to fully comply with the requirements of the reversal and decided to reject the penal clause in its entirety. Under Article 161/final of the Turkish Civil Code No. 818, the judge may reduce a penalty clause deemed excessive in valid contracts, but there is no provision allowing for its complete removal. After these explanations, considering the aforementioned legal regulation and evaluating whether the penal clause is excessive based on the evidence in the file, if it is excessive, a decision should be made by reducing it and reaching a conclusion accordingly. However, the decision to completely remove the penal clause is contrary to procedure and law and requires reversal.
CONCLUSION: For the reasons explained above, the appealed judgment is REVERSED in favor of the plaintiff, and the advance fee shall be refunded if requested. Pursuant to Article 440/III-1 of the Code of Civil Procedure, the decision is final and cannot be appealed. The decision was made unanimously on December 18, 2017.