Unfair Terms Decision In The Contract Of Promise For Sale Of Housing Signed By The Consumer
General Assembly of Civil Chambers 2016/245 E. , 2016/330 K.
“Case Law Text”
COURT :Consumer Court
At the end of the trial held due to the “receivable” lawsuit between the parties; Upon the request of the defendant’s attorney for examination of the decision dated 26.10.2010 and numbered 2007/334 E. – 2010/820 K. by the Istanbul 3rd Consumer Court, with the decision of the 13th Civil Chamber of the Court of Cassation dated 16.03.2012 and numbered 2011/8732 E., 2012/6821 K;
“The plaintiff stated that they signed a contract of promise to sell a house with the defendant dated 1.10.2002, delivered the house subject to the contract to the defendant 49 months ago, and upon non-payment of the full price of the house, they cancelled the contract with a notice dated 12.4.2006. 2006 dated 12.4.2006, despite the notice, the defendant’s unjust occupation still continues, according to article 9/f of the contract, in case of termination of the contract, it was agreed that a monthly usage fee of 2% of the sales price would be paid until the date of delivery of the house,
without prejudice to their rights regarding the excess, the determination of the usage fee according to the provisions of the contract from the date of delivery of the house to the date of termination, from the date of termination to the date of the lawsuit, according to the provisions of the contract for the time being 7. 500TL and the collection of 5.000TL from the defendant for the time being due to the wear and tear and loss of value of the dwelling; with the amendment petition dated 23.8.2010, he increased his demand to 100.000 TL.
The defendant requested the dismissal of the lawsuit.
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The court decided to accept the lawsuit on the grounds that the contract was valid due to the official execution of the contract and that the defendant was required to pay a monthly usage fee of 2% of the cash sale price of the house according to Article 9/f of the contract, and decided to collect 100.000TL ecrimisil from the defendant, without prejudice to the plaintiff’s rights regarding the surplus; the judgement was appealed by the defendant.
Plaintiff, claiming that the defendant did not pay the full amount of the house price in accordance with the housing sales promise contract signed with the defendant, and therefore they terminated the contract, filed the present lawsuit with the request for the collection of the monthly usage fee of 2% of the sales price from the defendant in accordance with Article 9/f of the contract due to justified termination.
Unfair terms in contracts are regulated by Article 6 of the Law No. 4077 on the Protection of Consumers amended by the Law No. 4822 and “Unfair terms are contractual conditions that the seller and provider unilaterally put into the contract without negotiating with the consumer, which cause an imbalance in the rights and obligations of the parties arising from the contract against the consumer in a way that contradicts the rule of good faith. Unfair terms in all kinds of contracts, one of the parties of which is the consumer, are not binding for the consumer.
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If a contract term is prepared in advance and the consumer cannot influence its content, especially because it is included in the standard contract, it is accepted that that contract term has not been negotiated with the consumer. If it is concluded from the evaluation of the contract as a whole that it is a standard contract, the fact that certain elements or an individual provision of a term in this contract have been negotiated does not prevent the application of this article to the remaining part of the contract.
İf a seller or provider claims that a standard term has been discussed individually, the burden of proof is on him…” and Article 7 of the Regulation on Unfair Terms in Consumer Contracts, which was prepared based on the amended Articles 6 and 31 of the Law No. 4077, stipulates that “unfair terms used in the contract concluded with the consumer by the seller, provider or creditor are null and void”.
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A Contract of Promise for the Sale of Housing dated 1.10.2002 was concluded between the parties. Article 9/f of the contract stipulates that “…the buyer shall pay to Sinpaş a monthly rental fee amounting to 2% of the total sales price of the house for the use of the house during the periods to be considered as rent in accordance with the provisions of this article from the date on which the notice of termination of the contract is issued by Sinpaş…”. Considering the provisions of the law and regulations explained above, this provision of the contract must be accepted as an unfair term. In this case, the defendant consumer cannot be held responsible for the aforementioned contractual provision. Therefore, while the court should decide to reject this request, the wrong evaluation is against the procedure and the law and is a reason for reversal…”
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
The General Assembly of Civil Chambers examined the decision of resistance and discussed the necessity after it was understood that the appeal was filed in due time and the papers in the file were read:
Lawsuit is related to the claim for receivable.
The dispute between the local court and the Special Chamber centres on whether Article 9/f of the contract between the parties is an unfair term and whether the defendant-consumer can be held responsible for the usage fee to be calculated according to this article.
According to the mutual claims and defences of the parties, the minutes and evidence in the file, and the reasons explained in the reversal decision, it is against the procedure and the law to resist the previous decision, while the reversal decision of the Special Chamber, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
For the reason explained, the decision of resistance should be reversed.
CONCLUSION:
It was unanimously decided on 16.03.2016 that the appeal objections of the defendant’s attorney are accepted and the decision to resist is reversed for the reasons shown in the Special Chamber’s reversal decision.
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