Disputes Arising From The Construction Contract In Return For Land Share Shall Be Heard In The Civil Courts Of First Instance
20th Civil Chamber 2019/6341 E. , 2020/687 K.
“Case Law Text”
COURT :Commercial Court
In the case between the parties, all documents in the file sent for the determination of the place of jurisdiction due to the fact that the Istanbul 7th Consumer and Istanbul 18th Commercial Courts of First Instance separately decided to be out of jurisdiction, were examined and the necessity was considered:
DECISION
The lawsuit is related to the cancellation and registration request for the cancellation and registration of the title deed of the independent section, which was built by the non-suit contractor and sold to the plaintiffs with an externally issued immovable sales promise agreement, based on the construction contract in return for flats.
Istanbul 7th Consumer Court, the parties of the contract subject to the dispute, according to the nature of the contract, whether it is a contract for consumer transaction or not, whether it is a commercial business or not, were evaluated together, and a decision of non-jurisdiction was made on the grounds that the contract subject to the case was made for the purpose of purchasing immovable property in the form of a shop or workplace, and that the immovable property in the form of a shop / workplace cannot be for individual use and can only be bought and sold for the purpose of making profit.
Istanbul 18. Commercial Court of First Instance, on the other hand, in the concrete case, the dispute is related to the request for cancellation of title deed registration filed with the claim that 2 independent sections promised for sale by the contractor to the plaintiff through notary public were not delivered, no evidence or document was submitted that the plaintiff is a merchant and has a commercial enterprise, and the purchase of independent sections for investment purposes cannot give the person the title of merchant, Considering that the consumer can also make many transactions for investment purposes, the duty to hear the case belongs to the consumer court due to the purchase of independent sections for investment purposes, and the plaintiff did not submit any evidence or document to the file that the plaintiff was engaged in commercial activities in relation to the independent sections he undertook to sell.
In the concrete case; it is related to the request for cancellation and registration of the title deed based on the personal right assigned from the contractor.
Firstly, the concept of personal right should be emphasised. As it is known, right can be defined as the authority granted to persons by the law. Absolute rights are existing and monopoly powers over the things to which they belong. Relative (personal) rights, on the other hand, authorise the holder to demand the fulfilment of a certain act such as giving, doing or not doing something due to a debt relationship. Absolute rights related to material goods are called real rights. While absolute rights can be asserted against everyone, personal rights can only be asserted against the debtor of the debt relationship.
The construction contract in return for land share provides the contractor with a personal right. If the conditions are appropriate, the contractor may force the land owner to give or do something based on the personal right he has acquired. The contractor who has acquired a personal right may assert this right directly against the landowner, or may assign it to a third party without the consent of the landowner and only in writing.
Assignment of receivables and transfer of debts are regulated under Articles 162 to 181 of the Code of Obligations.
The rule is the performance of the performance which is the result of the debt relationship to the creditor. However, living conditions, commercial and economic requirements have made it obligatory for the creditor to transfer his receivable to another person or for the debtor to transfer his debt to another person without waiting for performance. It is seen that assignment of receivables is a legal institution that emerged from the needs required by the conditions of life. For example, in construction contracts in return for a share of land, the contractor who owes the building construction work needs finance.
It is possible to meet this need by selling or promising to sell the independent section or sections, which are agreed to be partially or completely left to the contractor, to third parties during the construction phase. In fact, the fact that the landowner transfers the land share, which should be given by the landowner upon the delivery of the work in accordance with Article 364 of the Code of Obligations, to the contractor during the construction phase, and the contractor provides finance by assigning it to third parties means that the landowner provides credit to the contractor.
To make a definition; assignment of receivables is a formal contract that can be made between the creditor and the third party who transfers it without the consent of the debtor and is only a gainful disposition transaction. According to Article 163 of the Code of Obligations, the assignment agreement may be concluded in writing between the assignor and the assignee. However, the written form required for the assignment of receivables does not prevent the assignment agreement from being made in official form. As a matter of fact, in practice, it is seen that third parties who assign their personal rights from the contractor make the assignment agreement as an ordinary written sales contract or a contract of promise of sale of immovable property in the form of a notary public. Therefore, the plaintiff has the rights of the out-of-court contractor against the defendant landowners.
Article 3 (I) of the Law No. 6502, which entered into force on 28.05.2014, includes the work contracts established between real or legal persons and consumers within the scope of consumer transactions. A.rticle 73/1 of the Law determines that the consumer courts are in charge of the cases arising from consumer transactions.
Article 3 of the Law No. 6502 does not provide any explanation regarding the inclusion of the work contracts within the scope of the law.
However, considering the systematics of the law, it is understood that what is meant by the work contracts mentioned in the law is the work contracts made between the real and legal person and the consumer for the purpose of use and consumption for personal needs only, for non-commercial and non-professional purposes. Construction contracts in return for land shares are a unique type of the work contracts regulated under Articles 155 et seq. of the Code No. 818. One party of these contracts is the land owner and the other party is the contractor. In such contracts, it is understood that the landowner does not comply with the definition of consumer in Article 3/k of the Consumer Law.
In construction contracts in return for land share, the purpose of the land owner is not to obtain a house for use, but to utilise his land. Therefore, it should not be overlooked that the motive of the land owner when signing a construction contract in return for land share is different from the motive of the consumer defined in Law No. 6502. Considering that the work subject to the construction contracts in return for land share requires high-level technology, and that there are also immovable sales promises and construction contracts within the scope of the contract, it should be accepted that the legislator in the Law No. 6502 refers to narrow-scope work contracts such as making kitchens, cabinets and repairing vehicles for the sole purpose of use and consumption, and that construction contracts in return for land are not within this scope.
In this case, since the dispute in the case at hand does not fall within the scope of Law No. 6502, the case must be heard and concluded in the Istanbul Civil Court of First Instance in accordance with the general provisions pursuant to Article 2 of the CCP.
CONCLUSION:
For the reasons explained above; In accordance with Articles 21 and 22 of the CCP No. 6100, it was unanimously decided on 13/02/2020 to determine the Istanbul Civil Court of First Instance as the Jurisdiction.
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