JUDICIAL COURT DECISION – 3RD HD., E. 2016/10999 K. 2017/18314 T. 27.12.2017
The main and combined case is related to the claim for the return of gifts, material and moral damages due to the breakdown of the engagement.
1-According to the writings in the file, the evidence on which the decision is based, the reasons that are in accordance with the law and especially the appreciation of the evidence, all of the appellate objections of the appellant defendant, the plaintiff’s attorney for the combined file, and other appellate objections other than the following subparagraphs regarding the main file are not relevant.
2- The plaintiff, the defendant of the joint file, filed its lawsuit for financial compensation as an indefinite receivable lawsuit. After the expert report, the court should complete the missing fee in accordance with Article 32 of the Fees Law and continue the proceedings if the fee is completed, but it was not deemed correct to make a judgement as written.
3- According to Article 122 of the TMK, if the engagement is terminated for a reason other than marriage, the gifts given by the fiancés to each other, which are not customary, can be requested back. No fault is sought in the lawsuits related to the recovery of the gifts due to the breakdown of the engagement.
In case the engagement is broken off, the gifts other than the customary gifts shall be returned in kind, or if they are not available, they shall be returned in kind, or their equivalent shall be demanded back according to the rules of unjust enrichment. The fact that the gifts were given and not returned can be proved by all kinds of evidence.
What is meant by customary gifts are items that are worn out and consumed by wearing and using. As a rule, items that are worn out and consumed (such as clothes, shoes, etc.) cannot be decided to be returned.
Since the expenses and items subject to material compensation other than the wedding dress, various fabrics and clothing, invitations and donations mentioned in the expert report are in the possession of the plaintiff and used by the plaintiff, the acceptance of the claim for material compensation in terms of these expenses and items is not correct.
CONCLUSION:
For the reasons explained in the first subparagraph above, all the appellate objections of the defendant joint file plaintiff’s attorney regarding the joint file and the other appellate objections regarding the main file are rejected, and for the reasons explained in the second and third subparagraphs, the judgement has been accepted in accordance with Article 428 of the Code of Civil Procedure. It was unanimously decided on 27.12.2017 to return the prepaid appeal fee to the appellant upon request, in accordance with Article 440 of the Code of Civil Procedure No. 1086 with reference to the provisional article 3 of the Code of Civil Procedure No. 6100, to be open for decision correction within a period of 15 days from the notification of the decision.
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