T.C.
SUPREME
LAW OFFICE
2012/10938
2012/10436
01.10.2012
- CLAIMS OF WILLPOWER DISORDER AND EXCESSIVE USE IN LEGAL PROCEEDINGS (Which Can Be Proved by Any Evidence / Where It is Wrong Not to Listen to the Plaintiff’s Witnesses – Elements of Error Cheating and Gabi / Reducing Periods of Rights)
- THERE IS NO WRITTEN EVIDENCE REQUIREMENT (Due to the Need to Observe by the Local Court That Claims of Willpower Disorder and Excessive Use in Legal Proceedings Can Be Proved with All Kinds of Evidence – It is Erroneous That the Plaintiff’s Witnesses Are Not Listened To)
- WITNESS EVIDENCE (It is Possible to Prove All Kinds of Evidence of Allegations of Willpower Disorder, Such as Error Cheating and Gabin – The Court Has Not Taken This into Account / Insufficient Research Has Not Been Done / The PLAINTIFF’s Witnesses Should Be Listened To)
- STATUTE OF LIMITATIONS OF THE CASE IN THE CASE OF GABIN (A Cancellation Lawsuit Can Be Filed Within a One–Year Decriminalization Period – Excessive Disproportion Between Actions Will Be Determined – The Psychological Structure of the Injured Person and Subjective Elements Will Be Investigated)
- LEARNING OF THE FRAUD (A Statement of Will to be Sent to the Other Party Through the Defi, In Which a Lawsuit Can Be Filed Within a One–Year Period, Is Also Valid / It Is Possible to Prove the CLAIM with Any Evidence / There is No WRITTEN Evidence Requirement)
- THE CASE OF CANCELLATION AND REGISTRATION OF TITLE DEEDS BASED ON THE REASONS FOR THE ERRONEOUS FRAUD (Where There Is No Obligation to Prove It with Written Evidence – It Is Possible to Prove It with Any Evidence, Even If There Is No Written Document / The PLAINTIFF’s Witnesses Should Be Heard) 6098/m. 28.36 818/m. 21,28 6100/m. 203
ABSTRACT : The case is related to the request for cancellation and registration of the title deed based on error, fraud, legal cause of action.The court decided to dismiss the case on the grounds that the claim should be proved with absolute written evidence.However, it is possible to prove claims of willpower disorder and excessive use in legal proceedings such as fraud and fraud with a witness and with all kinds of evidence, even if there is no written document.There is also a misconception that the error is misleading in the trick.Cheating can be proved by any kind of evidence, and the use of the right of cancellation does not depend on any form. A statement of will that will be sent to the other party within a one-year period from the date of learning of the fraud can also be used defiantly or through litigation.By informing the one who has been harmed (exploited) that he is not bound by the contract within the one-year period from the date of the contract, he gives the right to file a cancellation lawsuit, prove his claim with all kinds of evidence and ask for a refund.In the case of Gabin (overuse), first of all, the excessive decency between actions should be emphasized, if the objective element is proven, the personality of the person must be agreed, material and spiritual aspects, such as age, health status, place in society, economic and psychological structure, that is, subjective element should be investigated and examined to the depth.The Court considered that the plaintiff’s witnesses were not listened to, and the request to have a witness listened to was refused, as there was no investigation in the form that covers the principles and facts described above.
SUE : between the sides and the deed “cancel registration” at the end of the case in relation to the rejection of the case by a local court decision within the legal period have been appealed by the plaintiff is that the file has been reviewed by the audit reports Ilknur opening of the judge read the comments rested, was considered and discussed by:
VERDICT : The case relates to the request for cancellation and registration of the deed based on error, deception, the legal cause of the transaction.The court decided to dismiss the case.
From the contents of the file, the collected evidence; It is understood that kayden maliki has provided the defendant with a bride through the sale on 09/02/2010 of the independent section No. 16, located on the island 6064, 3 parcels, where he is the subject of contention, to the defendant who has a bride on 09/02/2010.
The plaintiff filed a lawsuit in the petition of the lawsuit; In order to contribute to the financial distress of his daughter out of the case, he provided her real estate with the son and bride’s suggestion, the price was not paid, she was 71 years old, the said payment was made by fraud, the value of the contract was shown to be too low, and the claimant filed the case at hand.
As is known, cheating is defined as deliberately arousing erroneous blood in it in order to lead someone to make a statement of will, especially to enter into a contract, or to preserve or maintain an essentially existing erroneous blood. There is also a misconception that the error is misleading in the trick. as explained in Article 36/1 of the Turkish Code of Obligations No. 6098 (Article 28/1 of the Code of Obligations No. 881), which entered into force on 01/07/2012, “If one of the parties entered into a contract as a result of deception of the other, it is not bound by the contract, even if it is not based on error. In case of the existence of the mentioned conditions, the deceived party can effectively eliminate the legal relationship by exercising its right to the past (makable shamil) and ask for what it has given back by using the right.
On the other hand, the use of the right to cancel does not depend on any form, as cheating can be proved by any evidence. A statement of will that will be sent to the other party within a one-year period from the date of learning of the fraud can also be used defiantly or through litigation.
On the other hand, In order to recognize that the contract is invalid due to excessive use, the decency between action and counteraction must occur as a result of the fact that one of the parties knowingly exploits and exploits a special situation existing in the person of the other. 28 Of the Turkish Code of Obligations No. 6098, which entered into force on 01/07/2012, regulations were also made in our law to protect people who were dragged into contracts and transferring their goods at a very low price due to their narrow and difficult situation, so as not to oppress the weak to the strong, in order not to be oppressed by the weak. Article (21 of the Code of Obligations No. 818. the substance with just the “disproportion between the mutual actions in a contract, this disproportion of the victim from being, or thoughtlessness, or by the application of inexperience is being performed, if damaged, according to the nature of the situation or the other side that is not connected with the contract or the act of adhering to the convention of the act to be returned to bildirierere between oransizlig may require you to be offset.” the decision has been made.
In this case, the fact that we can talk about gabin (excessive use) depends on the realization of even two subjective elements in the form of excessive decency between actions that are objective elements, as well as the presence of narrowness, inexperience, thoughtlessness (lightness ) on one side, and the other side has the intention to exploit and exploit. By informing the one who has been harmed (exploited) that he is not bound by the contract within the one-year period from the date of the contract, he gives the right to file a cancellation lawsuit, prove his claim with all kinds of evidence and ask for a refund.
Immediately it should be noted that, lesion (excessive use), in the case of the first acts between extreme disproportion should be emphasized, objective personality mutazarrir if the element to be proven, age, health status, in the society, the psychological structure of the material and spiritual aspects such as economic power, namely, the depth of the subjective element should be examined and probed.
As for the concrete case, the court decided to dismiss the case on the grounds that the acquisition of property is possible by official deed and registration, and the claim must be proved by absolute written evidence. However, it is clear that claims of willpower disorder and overuse in legal proceedings against the principles and facts described above and the regulation in Article 203 / ç of HMK No. 6100 (article 293/5 of HMK No. 1086 ) are possible to be proved by a witness and with all kinds of evidence, even if there is no written document.
However, the court did not conduct a study covering the principles and facts described above, and considering it to be erroneous, the plaintiff’s witnesses were not listened to, and the request to have a witness listened to was rejected.
And that being the case; the parties that are described in accordance with the principles and claims of the necessary research done with the evidence and the witnesses in the direction of descriptive, concrete information hearty receiving, through the conveyance of immovable subject to cancellation at the date of determination of the value kesfen expert witnesses, in case the fraud claim can not be proven, the lesion (excessive use) the claim of the judgment result will be achieved in terms of evaluation should be established according to an incomplete investigation that was going to result in a written while it is not true.
CONCLUSION : The plaintiff’s appeals against this direction are in place. For the reasons explained by the adoption of the provision (provisional Article 3 of the Law No. 6100.by sending the article) HUMK No. 1086.428 of.it was unanimously decided on 01.10.2012 that the advance payment received should be refunded to the appellant and that it should be violated in accordance with the article.
