T.R. SUPREME COURT
- Law Office
Basis: 2016/3094
Decision: 2016/3597
Decision Date: 21.06.2016
ACTION FOR ANNOUNCEMENT OF OBJECTION – BOTH PARTIES ARE TRADER AND RELATED TO THE COMMERCIAL ENTERPRISE OF THE PARTIES – OVERRIDE OF THE PROVISION
SUMMARY: In a concrete dispute, the plaintiff is the subcontractor, and the defendant is the contractor (provider). In this case, although the dispute arises from the contract of work, the dispute between the parties does not remain within the scope of consumer law. On the other hand, it should be examined whether the commercial court of first instance is in charge or not. Since the plaintiff’s attorney stated in the appeal petition that the defendant is a merchant registered in the Trade Registry Office, and that the plaintiff client is a civil engineer and operates in the field of interior architecture and decoration, it is understood that both parties are merchants and are related to the commercial enterprise of the parties. In this case, the court should examine the merits of the case and collect the evidences of the parties and decide according to the result, but otherwise, it was not right to give a decision of non-jurisdiction, and the decision was found appropriate to be reversed.
(6502 S. K. Art. 1, 73)
Lawsuit: The examination of the above-mentioned judgment on appeal was requested by the plaintiff’s attorney and it was understood that the appeal petition was submitted within the time limit.
The dispute arises from the contract of work, and the plaintiff subcontractor demanded the cancellation of the objection to the follow-up with the request for the collection of the unpaid work cost from the defendant contractor.
In Article 1 of the Law on the Protection of Consumers, numbered 6502, which was in effect at the time the lawsuit was filed, it is stated that “the purpose of this Law is; To take measures to protect the health and safety and economic interests of the consumer, to compensate for their losses, to protect them from environmental hazards, to enlighten and raise awareness of the consumer in accordance with the public interest, to encourage the protective initiatives of the consumers themselves and to encourage voluntary organizations in the formation of policies on these issues. Article 3 titled Definition (1) provides; A natural or legal person who provides services to the consumer for commercial or professional purposes, or acts on behalf of or on behalf of the service provider, including public legal entities, (k) consumer; natural or legal person acting for commercial or non-professional purposes, (l) consumer transaction; including works, transportation, brokerage, insurance, power of attorney, banking and similar agreements between consumers and real or legal persons acting for commercial or professional purposes, including public legal entities in the goods or service markets, or acting on behalf of or on behalf of them. All kinds of contracts and legal transactions, including there are regulations. For a legal transaction to be considered a consumer transaction, it must comply with the above-mentioned definitions. Considering the matters explained, one of the parties should be the consumer and the other side should be the seller-provider in order to understand that the contract of work relationship is also within the scope of the Law on the Protection of the Consumer. In the presence of these conditions, it can be said that the consumer transaction and ultimately the competent court is the “consumer court”.
The issue of duty is related to public order and should be taken into account ex officio by the court at every stage of the proceedings and there can be no vested right regarding duty. 73/1 of the Law No. 6502. In accordance with the article, consumer courts are in charge in disputes considered within the scope of this law, otherwise general courts are in charge.
In a concrete dispute, the plaintiff is the subcontractor, and the defendant is the contractor (provider). In this case, although the dispute arises from the contract of work, the dispute between the parties does not remain within the scope of consumer law. On the other hand, it should be examined whether the commercial court of first instance is in charge or not. Since the plaintiff’s attorney stated in the appeal petition that the defendant is a merchant registered in the Trade Registry Office, and that the plaintiff client is a civil engineer and operates in the field of interior architecture and decoration, it is understood that both parties are merchants and are related to the commercial enterprise of the parties. In this case, while the court should examine the merits of the case and collect the evidences of the parties and decide according to the result, it was not correct to give a written decision of non-jurisdiction, and the decision was deemed appropriate to be reversed.
Conclusion: It was unanimously decided on 21.06.2016 that the appealed judgment be quashed for the reasons explained above, that the appeal fee paid should be returned to the appellant upon request, with no way of rectification. (¤¤)
