Partial Acceptance Of The Lawsuit As A Result Of Incorrect Evaluation While It Should Be Decided To Reject The Lawsuit When The Plaintiff Does Not Have A Request According To The Relevant Articles Of The Turkish Code Of Obligations
T.C Judiciary Court of Appeal 15th Civil Chamber Esas: 2017/ 4843 Decision: 2019 / 2993 Date of Decision: 26.06.2019
SUMMARY: The court, since the claimant’s claim that the performance of the contract became impossible without his fault could not be proven, the defendant land owner’s dismissal of the plaintiff from the power of attorney in order not to use his powers in the power of attorney given to the plaintiff’s official by the defendant land owner does not constitute a revocation of the contract, the will of the parties regarding the revocation of the contract did not match and the plaintiff did not have a request according to Articles 137 and 138 of the TCO, it was not correct to accept the partial acceptance of the case as a result of the wrong evaluation, and it was deemed appropriate to revoke the decision.
(6098 S. Code Art. 136, 137, 138) (492 S. Code Art. 42)
Case: The appeal of the judgment dated and numbered above was requested by the defendant’s attorney and the plaintiff’s attorney did not appear on the day appointed for the hearing. The defendant’s attorney…. came. After it was understood that the petition of appeal was filed within the time limit and the defendant’s counsel who was present was heard, the examination and decision of the matter was left for another day due to lack of time. This time, after reading the papers in the file, the necessity of the matter was discussed and considered:
The lawsuit is related to the claim for the collection of the expenses, loss of profit and compensation receivables due to the non-performance of the construction contract in return for land share. The court’s decision on the partial acceptance of the lawsuit over 689.058,88 TL was appealed by the defendant’s attorney.
1- According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law, and especially the fact that it is possible for the defendant landowner to file a separate lawsuit for the delay compensation, the rent paid to the moved house, the repair cost of the damage and destruction and the cancellation of the annotation if the conditions are met, the other appellate objections other than the scope of the following paragraph are not deemed appropriate and should be rejected.
2- The plaintiff contractor and the defendant is the landowner and a Contract of Promise of Sale of Real Estate and Construction in Return for Land in the Form of Arrangement dated 16.10.2014 and numbered 38802, dated 16.10.2014 and signed at … 57th Notary Public Office for the construction of construction in return for flats on the land numbered 2767 block 5 parcel in … province, … district.
In the plaintiff contractor’s lawsuit, the plaintiff claimed that the defendant landowner refused to deliver the property empty, constantly made new requests, did not approve the survey projects with an unfair justification, prevented the performance of the contract with a malicious and malicious approach, and claimed compensation for the price paid in addition to the contract, negative damages, penal clause and loss of profit receivables due to the impossibility of performance.
In its reply petition and defenses at the stages, the defendant landowner requested the dismissal of the lawsuit, but in the declaration petition dated 27.06.2016, it requested the settlement and offset of the total amount of delay compensation, loss of rent, damages due to non-delivery in due time and damages for the repair of the damage to the building from the contractor’s receivables, without implying acceptance. There is no express or implied declaration of the defendant landowner terminating the contract or accepting that the performance of the contract has become impossible.
Impossibility of performance is regulated in Articles 136 and following articles of the TCO No. 6098, and Article 136 states that if the performance of the obligation becomes impossible due to reasons for which the debtor cannot be held responsible, the obligation will be terminated and the parties will demand back what they have given, Article 137 states that in case of partial impossibility, the debtor will be released from the debt only in the part of the impossibility, and Article 138 states that the performance of the obligation will become impossible due to excessive difficulty of performance and accordingly, the debtor has the right to request the adaptation of the contract to the new conditions, and if it is not possible, to withdraw from the contract. In the reasoning of the court decision, the claims of the plaintiff contractor that the performance of the contract became impossible due to the fact that the land was not delivered empty, the survey projects were rejected without justification, and the plaintiff contractor was not willing to deliver the building subject to the lawsuit were not deemed appropriate, and the plaintiff did not request an appeal against this reasoning of the court.
Since the construction contracts in return for land share include the transfer of shares in the title deed, it is not possible to terminate the contract with the unilateral declaration of will of the parties and its receipt by the other party. It can be terminated by court decision or by the parties’ will to terminate. The dismissal of the attorney appointed by the power of attorney given by the land owner to the contractor or his representative pursuant to the contract is not sufficient for the acceptance of the implied withdrawal from the contract. Despite the dismissal from the power of attorney, the contractor may file a lawsuit against the landowner and request and ensure that the powers required for the performance of the contract in the dismissed power of attorney, which should have been performed by the landowner in accordance with the contract, are granted.
In this case, the court, since the claimant’s claim that the performance of the contract became impossible without his fault could not be proved, the defendant land owner’s dismissal of the plaintiff from the power of attorney in order not to use his powers in the power of attorney given to the plaintiff’s official by the defendant land owner does not constitute a revocation of the contract, the parties’ wills on the revocation of the contract did not coincide and the plaintiff did not have a request according to Articles 137 and 138 of the TCO, while it should be decided to dismiss the lawsuit, it was not correct to accept the partial acceptance of the case as a result of the wrong evaluation, and it was deemed appropriate to revoke the decision.
Decision and Conclusion: For the reasons explained in subparagraph 1 above, the other appellate objections of the defendant are rejected, and as per subparagraph 2 above, the judgment is reversed in favor of the defendant, the attorney fee of 2.037,00 TL for the hearing is taken from the plaintiff and given to the defendant who was represented by an attorney at the hearing at the Court of Cassation, and in accordance with the amendment made by Article 11 of the Law No. 5766, the Pursuant to the amendment made by Article 11 of Law No. 5766, the Court of Cassation application fee of 176.60 TL, which should be taken in accordance with Article 42/2-d of the Law on Fees, shall be taken from the appellant defendant, the pre-paid appeal fee shall be returned to the appellant defendant upon request, and it was unanimously decided on 26.06.2019 that a request for correction of the decision can be made within 15 days from the date of notification against the decision.
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