Supreme Court of the Republic of Turkey
19. Law Office
Basis: 2016/ 9422
Decision: 2018 / 1089
Decision Date: 01.03.2018
SUMMARY: It is not correct to base the judgment on the legal interpretations in the expert reports prepared by the court contrary to the provisions of the contract and the law. The work to be done by the court is to determine whether the defendant violated the provisions of the contract according to the provisions of the contract, according to the material facts, and since the responsibility for returning the contribution fee arises from the contract, and the short-term arrest will not constitute a force majeure for the closure of the enterprise, the plaintiff may request from the defendant the amount of contribution and penal clause. Based on the calculations made in the consultant’s expert report, evaluating whether the requested penal clause will cause the defendant’s economic ruin or not, it should consist of making a decision to the appropriate conclusion by making an appropriate reduction if the requested penal clause is of a nature that will cause the defendant’s economic ruin. It is against the procedure and the law to decide to reject the case with an erroneous assessment without considering the above-mentioned aspects.
(6098 S. K. Art. 136)
Litigation: At the end of the trial of the lawsuit between the parties, the file was examined upon appeal by the plaintiff’s attorney, within the period of the verdict given for the rejection of the case due to the reasons written in the verdict.
DECISION
The attorney of the plaintiff, claiming that an open point of sale contract was signed between the plaintiff company and the defendant, valid between 01.04.2012 and 01.04.2016, that the defendant contributed in this context, but the defendant caused the transfer of the workplace to a third party before the expiry of one year, and the claim arising from the contract. and litigation rights reserved.
The defendant’s attorney demanded the dismissal of the case, arguing that his client was arrested shortly after the signing of the contract, that he was on the verge of bankruptcy due to this unfortunate event, that he had to close the workplace, that his client did not close the workplace arbitrarily, that the amount of penal clause required was exorbitant and would cause his client’s destruction.
The court concluded that a contract was signed between the plaintiff company and the defendant, the defendant was arrested for being a member of an organization established for the purpose of committing a crime in the first year of the contract, he terminated his activity while he was in detention, the date of termination of activity corresponds to the period of detention, and the workplace was transferred to a third party in violation of Article 6 of the contract. not transferred, the execution of the contract becomes impossible due to the uncertainty of how long the detention will last, and in this case, the defendant is not at fault, TCO. m. 136, it is regulated that the debt will expire in case of impossibility of perfect performance, it is not possible to demand a penal clause since the debt is terminated due to impossibility, the plaintiff delivered 200 barrels of beer to the defendant. m. In accordance with the provisions of 136, the case was rejected on the grounds that in the contracts that burden mutual debt, the parties have to give back what they have taken from each other in accordance with the provisions of unjust enrichment in case the debt is extinguished, that the bona fide enrichment is not obliged to give back what he has lost, and as stated in the first expert report, the defendant’s capital is zero, in other words, he has nothing left. The decision was made and the decision was appealed by the plaintiff’s attorney.
It is not correct to base the judgment on the legal interpretations in the expert reports prepared by the court in violation of the contract provisions and the law. The work to be done by the court is to determine whether the defendant violated the provisions of the contract according to the provisions of the contract, according to the material facts, and since the responsibility for returning the contribution fee arises from the contract, and the short-term arrest will not constitute a force majeure for the closure of the enterprise, the plaintiff may request from the defendant the amount of contribution and penal clause. Based on the calculations made in the consultant’s expert report, evaluating whether the requested penal clause will cause the defendant’s economic ruin or not, it should consist of making a decision to the appropriate conclusion by making an appropriate reduction if the requested penal clause is of a nature that will cause the defendant’s economic ruin. It is against the procedure and the law to decide to reject the case in written form without considering the aspects explained above.
CONCLUSION: For the reasons explained above, it was unanimously decided on 01/03/2018 that the judgment be overturned for the benefit of the appellant and the cash fee be returned to the plaintiff upon request.
