Decision On Contract Cancellation Case
T.C. JUDICIARY
19th Civil Chamber
Main: 2003/10736
Decision: 2004/7671
Date of Decision: 25.06.2004
ANNULMENT OF THE CONTRACT – REQUEST FOR REMOVAL OF THE RIGHT OF USUFRUCT – IF THE SUBJECT MATTER OF THE CONTRACT IS IMPOSSIBLE FROM THE BEGINNING, THE CONTRACT WILL BE NULL AND VOID – INVALIDITY OF THE RIGHT OF USUFRUCT ESTABLISHED ON THE BASIS OF A VOID CONTRACT – JUDGMENT UPHELD
SUMMARY: The court decided to accept the main and the combined lawsuit on the grounds that if the subject of the contract is impossible from the beginning, the contract will be null and void, the construction of a fuel and service station on the immovable subject to the contract is not in accordance with the zoning legislation, and the usufruct right established on the basis of a void contract is invalid since the underlying contract is void.
(818 S. Code Art. 20)
Case: At the end of the trial of the combined contract cancellation and removal of the usufruct right on the immovable between the parties, the judgment given for the acceptance of both cases for the reasons written in the judgment was examined and the file was examined upon the appeal of the defendant’s attorney within the time period, and the file was examined, the necessity was discussed and thought.
Decision: The plaintiff’s attorney stated that the contract between the parties dated 5.10. 1992 dated 5.10.1992, it was agreed between the parties to build a fuel service and sales station on the immovable property owned by his client and it was undertaken to obtain the necessary licenses and permits, and upon obtaining the license, the aforementioned preliminary protocol was prepared and signed with the defendant to conclude an operating agreement and a lease agreement, They made the necessary application for obtaining licenses and permits, but the location of the immovable is not suitable for building a petrol station according to the zoning law, therefore the performance of the contract is legally and de facto impossible, the defendant has established a mortgage on the immovable in its own favor and also established usufruct right and even made the plaintiff pay the usufruct fee, the plaintiff company has given only 200. 000.000.TL and the same loan was collected as 600.000.000.TL and demanded and sued for the termination of the contract and the removal of the usufruct right since there was a legal impossibility from the beginning to fulfill the contract.
In his reply, the defendant’s attorney stated that the case is pending, the Bakırköy courts are competent due to the location of the real estate subject to the lawsuit, the dispute subject to the lawsuit does not fall within the jurisdiction of the Commercial Court of First Instance, the usufruct right subject to the lawsuit was established in accordance with the law in the title deed in favor of his client company with the journal number 11611 dated 16.12.1992, the plaintiff’s notarized undertaking dated 16.12. 1992 dated 16.12.1992, the plaintiff agreed to obtain all the licenses and permits of the fuel station to be built on the land subject to the contract until 1.4.1993 at the latest, otherwise he agreed to pay the loan in US Dollars based on the US Dollar Buying Rate of the Central Bank of the Republic of Turkey on the day of the loan, despite the notices issued by the defendant company, the plaintiff did not fulfill his obligation, the loan of 200. 000.000.000.TL lent as a loan was not paid, enforcement proceedings were initiated, the plaintiff’s payment of 600.000.000.000.TL on 3.4.1996 was much less than the receivable. TL made by the plaintiff on 3.4.1996 was far below the receivable, the plaintiff did not fulfill its performance in the commitment letter, the mortgage subject to execution proceedings was terminated without prejudice to other rights, the real damages of the client company were not covered, the plaintiff did not make any payment for the usufruct right, and no relationship could be established between the termination of the mortgage and the 25-year usufruct right established in favor of the client company, and requested the dismissal of the lawsuit. In the consolidated case, the plaintiff’s attorney demanded and sued that the usufruct right established in favor of the defendant company be deleted from the title deed, since there is a legal impossibility in terms of the zoning law to establish a petroleum fuel and service station on the immovable property according to the contract concluded with the defendant company and they do not have any monetary debts to the defendant.
The court, according to the claim, defense and collected evidence and the expert report, in accordance with Article 20/1 of the Code of Obligations. In accordance with Article 20/1 of the Code of Civil Procedure, if the subject of the contract is impossible from the beginning, the contract will be null and void, the construction of a fuel and service station on the immovable subject to the contract is not in accordance with the zoning legislation, and from the date of the contract to the date of judgment, the plaintiff could not obtain the permits and licenses required by the contract and build a fuel sales station, Despite the long period of time that has elapsed since the parties failed to fulfill their obligations, the relationship agreed upon by the contract between the parties could not be established and the expected benefit could not be achieved for both parties, the contract was null and void because its subject matter was impossible at the time it was made, and the usufruct right established on the basis of the null contract was invalid because the underlying contract was null and void, and the judgment was appealed by the defendant’s attorney.
Conclusion According to the writings in the file, the evidence on which the judgment is based, the reasons for the judgment, and the appreciation of the evidence, it was unanimously decided on 25.06.2004 to reject all the objections of the defendant’s counsel which were not deemed appropriate and to APPROVE the judgment which is in accordance with the procedure and the law, and to charge the following approval fee to the appellant.