T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
2011/19-841
2012/144
14.3.2012
4721/m.684
2918/m.20
CASE : At the end of the trial between the parties for the case of “cancellation of the appeal”; Tu Decla 1.01.05.2008 day and 2007/466 E, which were issued by the Court of First Instance on the partial acceptance of the case.-2008/314K. upon request by the defendant’s deputy to examine the decision No. 19 of the Supreme Court.18.02.2010 day and 2009/3729 E of the Legal Department.-2010/1695 K. with Ref No.;
(… The plaintiff’s attorney to the defendant the costs of the van of his client 25.000.00 YTL is sold the contract between the parties in the direction of the price to be paid in installments, then the Solid was prepared from the notary a sales agreement and the vehicle has been registered in the name of the defendant, the defendant’s total YTL YTL paying for your client, and you didn’t pay the balance 17.069.00 7.931.00 for a client attempted to collect a debt enforcement proceedings which are to appeal the defendant’s wrongful withdrawal of Appeal has prosecuted by claiming that demand and to deny hukmolunmas and executive compensation.
In answer to the defendant’s attorney, the case of the cancellation is requested depending on the execution of the basement where the file is located should be looked at in the courts of the client to pay all fees when due, unconditional, unconditional, and unencumbered serhsiz solid as a solid tool that has taken the sales agreement with the seller in a sales contract “price completely received” about the case by arguing that the record is the subject of the case with the denial of the compensation are not determined in their favor wanted to be.
Court, claim, defense, and according to the evidence collected for sale at the notary of the vehicle involved in the case, the solid completely received in the sales contract the seller for the plaintiff declared when the file is submitted to and the handwriting, which was made in the contract of sale between the parties car 14.729.00 portion of the cost of the vehicle YTL YTL in equal installments each installment payment to the defendant of 13 1.133.00 agreed in this agreement does not deny the signature, and thus the lack of payment of the instalment of the cost of the vehicle 7.931.00 TL 7, prior to the follow-up, a partial acceptance of the case was decided on the grounds that the plaintiff had not defaulted on the defendant by drawing a warning, and that the enforcement proceedings had been objected to unfairly and intentionally, and the verdict was appealed by the defendant’s deputy.
In the contract of sale dated Dec. 15.5.2006, which is available among the files, the plaintiff stated that he fully received the sale price. The defendant also asked for the case to be dismissed, arguing that he had paid the sale price. In the face of this situation, the court’s decision to accept the case on written grounds was not correct, and the provision had to be overturned, while the case had to be dismissed in accordance with the official sales agreement, which was made later than the previous contract was signed, and the sale price was fully received … ),
At the end of the retrial, the court resisted the previous decision by being overturned on grounds and the file was returned to its place.
H.G.K.after the NCA was examined and it became clear that the decision to resist was appealed during the period and the papers in the file were read, the requirement was discussed:
DECISION : The case is related to the request for cancellation of the appeal.
The request was partially accepted by the court.
Upon the appeal of the defendant’s attorney, the decision was overturned by the Special Chamber on the grounds shown in the title section above.
The court, in its previous decision, resisted; it appealed the ruling.
The dispute is concluded between the parties according to the ordinary written protocol on the sale of vehicles and the contract notarized in an official manner, at the point of whether the defendant buyer pays the plaintiff seller the entire agreed dec of the vehicle.
Turkish Civil Code No. 4721 (TMK), 3. the department has regulated the ownership of movable property. But unlike real estate ownership, the Law established rules only on the issue, acquisition and loss of real estate ownership; it did not allocate any provisions for the scope and restrictions of this property.
Because the scope of movable property, movable property and property that make up the subject of TMK 684. according to the article, it is limited to the things that make up its integral part. There is no reason to require any other rule submission in this regard.
Movable property arising from the limitations of the law, however, those whose philosophy is based on public law (the law on firearms and knives in this context, Road Traffic Law), aside from the abuse of civil rights such as the right in terms of covering all kinds of limitation. (Oguzman K.,Selici Ö., Ozdemir S.O., Property Law, Filiz Bookstore, Istanbul, 2009, p. 586 et seq.)
20 of the Road Traffic Code No. 2918, which is one of the restrictions based on public law.in paragraph (d) of article: “all kinds of sales and transfers of registered vehicles will be made by notaries on the basis of a registration certificate or traffic registration records issued on behalf of the car owner; all kinds of sales and transfers not made by notaries will be invalid; it is stated that the sale and transfer process will be notified to the relevant traffic registration organization and the tax office within three working days to be processed in the registry, and along with this notification, the traffic registration process on behalf of the buyer will be deemed to have taken place”.
Although a price is specified in the sales contracts concluded with a notary, it is known from practice that the sales price (casco price) contained in the kati sales contract is automatically determined according to the vehicle model and age, and the declared price in the kati sales contract is reported by the parties so as not to contradict this price.
If this price is not shown correctly, it is important which price will be taken into account if the sales price in the contract of sale is shown lower or higher. It is also necessary to use the provisions of muvazaa in resolving disputes that will arise here.
As is known, the parties to a contract must agree on a matter that does not comply with their true will and does not apply to them, hiding the real situation in order to deceive third parties; transactions made in this way are also called decoupled transactions. (HGK), 9.2.2005 days 2005/1-19 E, 2005/42 K; 16.6.2010 days and 2010/1-281 E, 2010/323 K.).
There is always an agreement between them that this transaction is not valid with a legal transaction that is ostensibly existing, but is never actually requested by the parties, which is made solely for the purpose of giving false opinions to third parties and decoy them. In some cases, in addition to these two, there october one more secret transaction that is in accordance with the true will of the parties (what the parties actually want), but they hide behind the transaction, which appears for various reasons. According to whether there is a secret transaction between the parties, two types of decoupage are mentioned:
Absolute (simple) dec decency is in question if the parties, although they do not want to take any legal actions between themselves, take actions only to third parties to make it seem that there is a legal action between them.
In contrast, in a relative (mevsuf) agreement, there is a legal transaction between the parties in accordance with their true dec, but this transaction is hidden by another legal transaction made against the outside that does not comply with their will.
This type of agreement may be in the nature of a contract, in the person, subject and conditions of its parties.
In case of non-compliance with the terms and conditions of a contract, the seeming legal act is in accordance with the true will of the parties. However, some terms of the seemingly transaction and a certain part of its subject matter are deciphered differently than the secret transaction between them. In this case, while the parties are apparently changing some of the terms of the contract, the entire contract, that is, not its nature, but some of its terms, does not comply with the confidential agreement. For example, in order to pay a smaller amount of tax, there is such a requirement that the sale value of real estate in the title deed is shown as low, in order to prevent the exercise of the right to know, there is an excess of the sale price in an apparent (official) contract in order to gain more if it is used. As explained above, the parties seriously want to conclude an ostensible contract and also agree on its nature (quality). However, the price is shown here less or more than the actual price. That is, only the price of the seemingly concluded contract is being changed. It is not in the entire Muvazaa agreement, but in one part (one element) (Özkaya E., Inanlı Transaction and Muvazaa Lawsuits, Şekçin, Ankara 2011, p.173 ).
The shape condition is not required in the Muvazaa contract. It can be written in written or oral form. Even if the apparent contract depends on the form, the muvazaa contract does not have to be made in written or official form. If the appearance of the contract depends on the form, the rule of proving the agreement with written evidence is a rule that is sought not for the validity of the written agreement of the agreement, but for proving it. (YIBK 5.2.1947 , 1945/20,1947/6) Of the party claiming the contrary of an apparently written contract, HMUK 289 and BK 13. in accordance with the articles, he is obliged to prove his claim with written evidence. Since the Muvazaa agreement apparently changes or nullifies the agreement, it is required by the explicit provisions of the laws mentioned to be written in order to gain the power of proof. For example, vehicle sales depend on the shape. Although the validity of the mutavazaa agreement to be drawn up for the transfer agreement, which depends on the apparent form, does not depend on the form, its proof is possible only with written evidence. (YIBK 5.2.1947, 1945/20-1947/6)
As for the concrete event:
The plaintiff sold the van owned by him to the defendant for a price of 25,000.00 USD, it was agreed to pay the remaining amount in advance until 31.1.2006 of 10,271.00, the car was registered in the defendant’s name with a strict sales agreement, the defendant paid 17,069.00 TL in this context, the balance was 7,931.00 TL with an installment amount of 7 upon non-payment, the defendant is charged against Bodrum 2. Claiming that the Enforcement Directorate conducted enforcement proceedings with file No. 2006/1631, and that the prosecution was stopped as a result of the defendant’s objection, he requested that the cancellation of his appeal be decided with the continuation of enforcement proceedings and 40% enforcement denial compensation.
Externally is held as shown between the parties pursuant to this protocol with the protocol and the sales price 25.000 TL 10.271 the defendant’s hand, undated,00 TL and through the bank 6.798,00 TL a total of 17.069,00 TL dated 15.5.2006 of the sales price and pays a bill of sale on the official 16.387,00 TL is shown as cekismesiz.
In addition, the defendant also did not raise any objections to the fact that such a protocol had not been made.
The dispute is at the point of whether TL 7,931.00 was paid or not.
As is known, the fact that the sales price is indicated as TL 16 dec387.00 in the Notarial sales contract is due to the fact that the minimum casco price is based on a price determined by the model and age of the vehicle during the notarial sale; The fact that this price is included in the notarial deed will not cause the contract between the parties to be invalid.
The parties seriously intend to conclude the seeming contract and also agree on its nature. Only the price of the contract is being changed. Here, the agreement was realized not in the entire contract, but in one part, in the price element.
As explained above, if the transfer of the real estate registered in the register depends on the form, the validity of the mutvazaa agreement to be issued for the transfer agreement, which is apparently related to the form, does not depend on the form; however, its proof will be possible with written evidence.
Since the protocol put forward by the plaintiff was not denied by the defendant, the plaintiff proved that the vehicle was sold for a price of 25,000.00 TL with ordinary written evidence, that they received 17,069.00 TL by hand and through the bank. Thus, since he has proved that the amount of the agreement and the sale price are 25,000.00 TL, the burden of proving that the entire amount of the ordinary written contract has been paid, that is, the remaining 7,931.00 TL has been paid, is now on the defendant.
Moreover, the price between the parties in the protocol 25.000,00 TL be agreed that a portion of the payments will be made to this protocol to the lack of the defence of the defendant in the face of the sales price in the sales contract notary 16.387 it is solid,00 TL is not the real price, the sales price is the price of the defendant’s challenged as mentioned in the protocol, the respondent is also evident in the adoption.
It should be noted immediately that it is impossible to accept that the price written only in the notarized sales contract is also received by the plaintiff. Because if it is accepted that the amount of TL 16,387.00, which is the price in the sales contract, was received by the plaintiff, it will be seen that the total price exceeds the price in the ordinary written sales contract with the amount given by hand and installments paid through the bank and taking into account the price written on the notarized sales contract. For this reason, it should not be accepted that the price shown in the notarized sales agreement is received by the plaintiff, it should be accepted that the sale price is shown as 16.387,00 TL is a price determined by the system only against the will of the parties.
In that case, the transaction is made in accordance with Article 20 of the Traffic Code No. 2918 on the transfer of movable property.it has become valid in accordance with the article. The fact that the buyer has not fully fulfilled the debt arising from the price cannot change the legal result arising from the official contract. Failure to pay a portion of the actual price in the ordinary written invoice will give the seller the right to request the collection of the unpaid part of the price. The burden of proving that he has paid this price is on the defendant, as explained above.
Therefore, the decision to resist, pointing to the same considerations, is appropriate and appropriate.
However, since the other appeals of the defendant’s attorney, especially the ruling price, and other appeals on the merits of the work have not been examined by the Special Department, the file must be sent to the Special Department for review in this direction.
CONCLUSION : The decision to resist for the reasons described above is appropriate; 19 of the file for the examination of the defendant’s attorney’s other appeals against the merits of the work, especially the price imposed. Submission to the Legal Department, 14.03.2012
