T.C.
SUPREME
law office
2015/28987
2017/12575
18.12.2017
- Prompt ( the plaintiff the defendant in accordance with the agreement signed between the seller by finding a brokerage that seek the qualities of purchase and sale of immovable mediated the signing of a contract – from the sales contract up to give the defendant requested the judge had to be decided by whether the penal clause is exorbitant – Exorbitant discount on a penal clause of the judge Saw can do )
- THE CRIMINAL CONDITION IS EXORBITANT (The Judge Considers the Penalties to Be Exorbitant, and the Taxpayer / Socio-Economic Status of the Parties Should Be Investigated / An Assessment Should Be Made of Whether the Criminal Condition Is Exorbitant and an Appropriate Decision Should Be Made as a Result)
- THE JUDGE SHOULD GO to A REDUCTION IN THE CRIMINAL CONDITION (The Court Should Make an Assessment of Whether the Criminal Condition Is Exorbitant Within the Scope of the Evidence Contained in the File, and Make a Decision According to the Result by Making a Discount If It is Exorbitant, While It Is Incorrect to Completely Remove the Criminal Condition)
818/m.161
SUMMARY : The case is related to a claim for receivables.
Article 161 of the law of obligations/last clause, according to the divorce and the judge saw that it is bound with exorbitant penalties tenkis this provision by stating that the parties need to evaluate the socio-economic situation of penal clause based on an assessment of whether to investigate the exorbitant according to the results of the decision had to be decided on the grounds that it damaged, have not been fully complied with the requirements of penal clause completely ruin by the court is dismissed.
No. 818 b.K.in the contracts valid according to Article 161 / last of the law, it is regulated that the judge can make a discount on the criminal condition that he considers exorbitant, and there is no regulation that he can completely remove it.
Within the scope of penal clause of whether the evidence in the court file exorbitant based on an assessment by an appropriate decision should be made to conclude discount exorbitant penalties when isabetsiz is completely removed and the decision is to be made.
CASE: At the end of the trial of the receivables case between the parties, the file was examined and considered as necessary upon appeal by the plaintiff’s lawyer within the period of the provision made for the partial acceptance or rejection of the case for the reasons written in the application Dec the plaintiff’s lawyer:
PAYING paid paid payable by the seller at the rate of 3% of the real estate’s value of TL 218,000.00 in the contract, and 3% will be paid by the buyer, and if one of the parties renounces the sales contract, it is agreed that the party who renounces will be responsible for paying the commission fee that both parties must pay, when the defendant stopped buying the real estate, on 22.1.2008, a warning was sent to both parties to pay the commission fee that they should pay, but the payment was not paid, claiming that the defendant asked the defendant to decide on its collection together with the commercial interest that will be processed from the default date of 13.080,00 TL.
The defendant has asked for the case to be dismissed.
The court decided to grant the claimant with the partial acceptance of the case and the collection of TL 6,540.00 from the defendant together with the commercial interest to be processed as of 02.02.2008, to reject the request for the surplus; the judgment was appealed by the plaintiff.
The plaintiff, a real estate broker is the case with the defendant as the owner of the apartment from the apartment on the sale of the contract that was signed between them and learn from then decide to stop buying the apartment upon the defendant pursuant to the contract, both parties have to pay commission fees which is required to 13.080,00 TL for the purpose of the collection opened the case at hand, the court of Appeal for the acceptance of case by appellate review of the decision made as a result of dairemizce upon; In the contract dated 08.01.2008 3% commission agreed a fee and other 3% is part of a penalty if it is, Article 161 of the law of obligations/last clause, according to the divorce and the judge saw that it is bound with exorbitant penalties tenkis this provision by stating that the parties need to evaluate the socio-economic situation of penal clause based on an assessment of whether to investigate the exorbitant according to the results of had to be decided on the grounds that if there is a damaged by the court, have not been fully complied with the requirements of penal clause completely ruin is dismissed. No. 818 b.K.in the contracts valid according to Article 161 / last of the law, it is regulated that the judge can make a discount on the criminal condition that he considers exorbitant, and there is no regulation that he can completely remove it. From this description, taken into consideration the above-mentioned legal regulation and within the scope of the evidence in the file is based on an assessment of whether the exorbitant penal clause, is completely removed by an appropriate decision should be made to conclude exorbitant discount and the issuance of the decision procedures and penalties when it is against the law ,and requires you to break it.
CONCLUSION : For the reasons described above, it was unanimously decided on 18.12.2017 that the appealed provision would be OVERTURNED for the benefit of the plaintiff, that the fee received in advance would be refunded if requested, and that the decision correction path would be closed in accordance with Article 440/III-1 of the CMB.
