Supreme Court of the Republic of Turkey
15.law office
Main: 2015/4817
Decision: 2016/3721
Date of Decision: 28.06.2016
A CASE ARISING FROM A WORK CONTRACT – WHERE IT IS NOT OBSERVED THAT THE CASE SHOULD BE DECIDED TO BE DISMISSED DUE TO THE LACK OF LEGAL BENEFIT IN FILING A LAWSUIT – WHERE THE PROVISION IS BROKEN
ABSTRACT: While it should be decided that the case against one of the defendants … should be dismissed due to lack of animosity, and the case against one of the defendants … should be dismissed due to lack of legal benefit in filing a lawsuit, it was not correct to establish a provision for its acceptance, and the decision should be overturned for the reasons described.
(6100 pp. K. m. 114)
Case and Decision: The appellant’s examination of the judgment written above with the date and number was requested by the defendants’ attorney and it was understood that the appeal petition was granted within the period of time, but the papers in the file were read and considered as necessary:
The case is related to the request to collect the unpaid work price arising from the work contract and the court’s decision on the joint and mutual collection of TL 18,000.00 from the defendants upon acceptance of the case was appealed by the defendants’ attorney.
The plaintiff attorney for the contractor in the petition, the section column of the main eight independent natural gas system and gas agreed with the defendants, the cost of business 23.000,00 TL is divided up into the bonds of these payments and installment payments that are laid out on the job to perform as complete and without defect, although the business if the fee has been paid, the debt claimed that they were opposed to the enforcement proceedings for the collection of things that I’ve done, and now 18.000,00 TL 06.08.2007 of the receivables from the date of the commercial interest of his education he wanted. The defendants … requested that the decease of the case against him be decided due to animosity, claiming that there is no contractual relationship between him and the plaintiff. One of the defendants … argued that the enforcement proceedings against him by the plaintiff have been finalized, so the plaintiff has no legal interest in filing the case at hand. The court decided to accept the case in accordance with the expert report received.
1-During the examination of the defendants … in terms of their appeals;
According to the rule of relativity of contracts, which is one of the most basic principles of contract law, a contract, as a rule, binds those who are parties to this contract. Therefore, in disputes arising from the contract, the parties to the case are also parties to the contract. In the case law of the Supreme Court and in the teaching, this situation is called the adjective of the party. The adjective of the party, in other words, the driver’s license of decency, refers to the relationship between the right subject to litigation and the persons. The adjective means determining whether the parties are related to this right in a material legal relationship. The adjective plaintiff refers to the owner of the right subject to litigation; if it is the adjective of the defendant, it refers to the obligation of the right subject to litigation. In practice, the adjective plaintiff is used to cover active hostility, and the adjective defendant is used to cover passive hostility. If the subject of the lawsuit is who or who has rights over the value, this person or persons should open the case, and if legal protection is sought against whom, the case should be filed against that person or persons. Whether a person has the title of plaintiff or defendant is determined according to material law, just as in determining whether the right exists. An important feature of the adjective of the party is that it is not a def, but an appeal, so it can always be put forward by the parties regardless of the duration and stage of the case, and this issue is taken into account by the court personally, even if the parties have not put it forward. These issues were clearly emphasized in the decree of our department dated 12.06.2014, numbered 2013 / Basis and 2014 / Decision.
As for the concrete case, it is understood that all three separate contracts submitted in the file and dated 30.03.2007 were concluded between the plaintiff contractor company and one of the defendants. It could not be proved that there was a contractual relationship between one of the defendants …and the plaintiff, or that this defendant committed the dec of the other defendant. As a result, while the plaintiff’s lawsuit against the defendant … should be dismissed due to the absence of passive hostility, it was not correct that the merits of the case were examined and it was decided to accept the case from the defendant’s point of view.
2-In the examination conducted in terms of appeals from the defendants …’s appeals, the;
Imported into the file of the Executive Office 2013/ 2013 and principles/ the following files are numbered based on the examination of the case in accordance with the contracts and bonds issued subject to be drawn by the plaintiff to the plaintiff due to non-payment of bills to the detriment of the defendant is made to follow the way where specific lien, with the finalization of the proceedings, the final began to collect the receivables, it is understood that the foreclosure process. The plaintiff also stated in the petition of claim that he remained helpless due to the defendant’s inability to find the property to be foreclosed on in the foreclosure proceedings made in these enforcement files, and that he opened the case for this reason.
In accordance with Article 114/1-h of HMK No. 6100, which was in force at the time of the lawsuit; The plaintiff’s legal decency in filing a lawsuit is considered to be among the conditions of the lawsuit. The parties can assert the deficiency of the case condition at any stage of the trial, as well as in court; Whether the case condition exists or not, it is necessary to observe it personally at every stage of the case (HMK 115/1). In case of absence of the case condition, it should be decided to dismiss the case from the procedure (HMK 115/2). After a finalized enforcement proceedings, there is no legal benefit to the plaintiff in re-filing a lawsuit related to the same receivable. Because the plaintiff can collect his/her receivables with the finalized enforcement proceedings. In a concrete case, the plaintiff has made the same before the contractor to receive two separate files when they could have charged in the finalization and execution of enforcement proceedings, receive the same or another about this time, a separate legal claim because there is no benefit to file suit, the case against the defendant because of the absence of a procedural denial of the legal benefits of the decision should make when establishing towards the adoption of the provision is also not true.
On the grounds described above, the case against the defendants … should be dismissed due to the absence of animosity, while the case against the defendants … should be decided due to the absence of legal interest in filing a lawsuit, it was not correct to establish a provision for its acceptance, the decision should be overturned for the reasons described.
Conclusion: The above 1. your decision for the reasons described in paragraph …, 2. it was unanimously decided on 28.06.2016 that for the reasons described in the paragraph, the defendant’s benefit would be IMPAIRED, the advance appeal fee he paid would be returned to the appellants on request, and a request for correction of the decision could be made within 15 days from the date of notification against the decision.
