Form Of The Engagement Contract
3RD HD., E. 2016/12231 K. 2018/2059 T. 5.3.2018
COURT: FAMILY COURT
As a result of the trial of the lawsuit for pecuniary and non-pecuniary damages between the parties, the decision given for the partial acceptance of the lawsuit was appealed by the defendant’s attorney within the time limit; after the decision to accept the appeal petition, the papers in the file were read and considered accordingly:
JUDICIAL COURT DECISION
The plaintiff stated that they met the defendant in 2005, that they gradually became emotionally close, that they decided to marry with their common will, that he introduced the defendant to his sister and brother-in-law, that the traditional engagement ceremony was not held because his parents were not present, that after long marriage plans, he bought a wedding day, had wedding candy and invitations made and distributed them to his environment, that he bought the dowry items from the defendant’s … …, but the defendant did not come to the wedding and his personal rights were violated, and on the condition that his rights to more are reserved, he requested the collection from the defendant of 1.000 TL pecuniary compensation and 50.000 TL non-pecuniary compensation for material values such as the transportation of the dowry he spent for the engagement and the union to …, travel expenses, and the cost of the items remaining with the defendant, provided that the items are not used, and if it is not possible to return them in kind, to return the cost. 000 TL pecuniary compensation and 50.000 TL non-pecuniary compensation from the defendant, the return of the goods in kind provided that they have not been used, and if it is not possible to return in kind, the return of the price.
The defendant defended that there was no engagement between the plaintiff and the defendant and that the plaintiff paid for the goods brought by the plaintiff to … and requested the dismissal of the lawsuit.
The court decided to accept the property lawsuit, to return the goods in kind, or if it is not possible to return the goods in kind, to return the price, to partially accept the claim for non-pecuniary damages, to take the compensation of 15.000 TL from the defendant and give it to the plaintiff, and to reject the claims regarding the excess, and the judgment was appealed by the defendant.
1- The lawsuit is related to the claim for pecuniary and non-pecuniary damages. Pursuant to Article 4 of the Law on the Establishment, Duties and Trial Procedures of Family Courts, the cases and affairs arising from family law within the scope of the 2nd book of the Turkish Civil Code numbered 4721 and the Law on the Enforcement and Implementation of the Turkish Civil Code numbered 4722 (except for 3 parts) shall be heard by the family court.
As emphasized in the Court of Cassation Unification of Jurisprudence decision dated 04.06.1958 and numbered 15/6; it is the duty of the parties to explain the material facts relied upon in a case, to qualify these facts legally, to search for and find the applicable articles of law and to interpret and apply them correctly. In other words, in a lawsuit, it is the duty of the parties to explain the material facts and the judge to make the legal characterization (Article 33 of the CCP). According to the aforementioned legal regulation, the legal characterization regarding the solution of the dispute should be made according to the fact that the duty of clarifying the case belongs to the court judge.
The court ruled on the merits of the case by stating that the dispute is based on the reason of breaking the engagement based on Article 121 of the Civil Code.
Engagement is a kind of promise made by the families and close friends of a girl and a boy who have reached the age of marriage that they will marry in line with the customs and traditions of the region.
Engagement is a family law contract and is regulated under Article 118 of the Civil Code, which does not stipulate a formal requirement. In order for the engagement to be legally valid, it must be made within a certain ritual, the engagement must be announced (announced) and witnessed by family members.
Although the plaintiff claimed in his petition that his personal rights were damaged due to the breakdown of the engagement and requested material and moral compensation, there is no engagement ceremony between the parties in the traditional sense, and this is also accepted by the plaintiff.
In the concrete case; the parties came together informally at certain intervals, and in this case, it is not possible to talk about an engagement and a union that must be legally protected. Since it is understood from the scope of the file that the parties are not engaged, the relationship between the parties should be evaluated not according to the principles of family law, but according to the rules of the law of obligations, especially the provisions regarding tortious acts.
The rules of jurisdiction are related to public order, and pursuant to Article 114/1-c of the CCP, the court’s jurisdiction is one of the conditions of the case. The court must consider whether it has jurisdiction at every stage of the proceedings.
Therefore, in the case at hand, since the claim is not a claim for compensation based on engagement, but arises from a wrongful act, it is necessary to make an assessment within this framework, make a decision of non-jurisdiction and send the file to the competent Civil Court of First Instance.
In the light of all these explanations; considering that the dispute does not fall within the jurisdiction of the Family Court, it was not correct to make a decision on the merits of the case as written, while it was necessary to make a decision on the lack of jurisdiction, and it required a reversal.
2-According to the reason and manner of reversal, it was not deemed necessary to examine the defendant’s appellate objections at this stage.
CONCLUSION:
Since it is inappropriate to establish a verdict in the written manner without taking into account the principles explained in the first subparagraph above, the judgment will be reversed in accordance with Article 428 of the HUMK, as explained in the second subparagraph, the appellate objections of the defendant are not necessary to be examined for the time being and the prepaid appeal fee will be returned to the appellant upon request, and the decision will be made in accordance with Article 440 of the HUMK No. 1086 with reference to the provisional article 3 of the HMK No. 6100. It was unanimously decided on 05.03.2018, with the way of decision correction being open within a period of 15 days from the notification of the decision in accordance with Article 440 of the HUMK No. 1086.
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