General Assembly of Law
Base Number: 2017/2850
Decision Number: 2019/154
“Justice Text”
COURT: Consumer Court
The decision dated 20.06.2013 and numbered 2009/1019 E., 2013/688 K. given by the Istanbul 3rd Consumer Court regarding the partial acceptance of the claim for pecuniary damage and the rejection of the claim for non-pecuniary damage, at the end of the trial made due to the “compensation” lawsuit between the parties… and Murat Doğan’s attorney, with the decision of the 13th Civil Chamber of the Court of Cassation dated 12.06.2014 and numbered 2013/32840 E., 2014/18798 K.;
“…The plaintiff stated that the credit card he received from the defendant bank was stolen on 14.03.2005 while he was traveling in the minibus, and that he informed the defendant bank by phone at 14:43 and then in writing, from Doğan Kuruyemiş owned by the defendant …, operated by the defendant … with a credit card. 4.000-TL of shopping was made, the defendant bank informed that it could not cover this amount because it was made before the notice, the defendant bank only assumed responsibility of 750-TL, even though the credit card was stolen and there was no fault in using it, it had to pay 3.275-TL to the defendant bank, the other alleging that the defendant … was tried in the criminal court and was punished for fraud due to this act, and that the defendants have joint and several responsibility, it was decided to jointly and severally collect from the defendants a total of 3,420,30-TL and 5,000-TL of non-pecuniary damages, including the warning fee. wanted.
The defendant bank claimed that the shopping that was the subject of the lawsuit took place at 14.39, 4 minutes before the plaintiff’s notification, and that they were not responsible for the expenses before the notification reached the bank, according to article 19 of the contract, and demanded the rejection of the lawsuit.
Defendant … and Murat Doğan argued that the case was dismissed, arguing that it was a routine purchase, that he did not have any faults, and that the plaintiff was responsible for not keeping his credit card meticulously.
The court dismissed the lawsuit filed against the defendant bank, partially accepted the lawsuit filed against the other defendants … and Murat Doğan, and decided to collect 1.645.30 TL from the defendants jointly and severally together with the rediscount interest from the date of the lawsuit and give it to the plaintiff, rejecting the claim for excess demand and non-pecuniary damage. given; the judgment was appealed by the plaintiff and the defendants … and Murat Doğan.
1- All other appeal objections of the defendants … and Murat Doğan, which fall outside the scope of the following subparagraph, should be rejected, due to the fact that there is no inaccuracy in the articles in the file, the evidence on which the decision is based and the legally required reasons, and especially in the discretion of the insane.
2-The plaintiff claimed that he was not responsible for the expenses due to the unlawful use of the credit card by third parties, and the defendants stated that the necessary care was not shown in the storage and protection of the information and passwords related to the credit card, and the bank was not responsible for the expenses made before the stolen notification, and stated that the plaintiff was not responsible for the expenses incurred. They argued that they should be held accountable. It is fixed within the scope of the file that the Akbank Axess credit card, which is the owner of the plaintiff, was stolen on 14.03.2005, the defendant notified the defendant bank as stolen at 14.43, and the transaction of 4,000-TL, which is the subject of the lawsuit, was made at 14.39.
In order to resolve the dispute between the parties, the relevant provisions of the “Debit Cards and Credit Cards Law” numbered 5464 should be examined.
In Article 15, titled “Obligations of Card Holders”, “The responsibility arising from the use of the card belongs to the card holder from the moment the contract is signed and the card is in the possession of the card or the card number, which does not have a physical presence, is learned.”
In article 16, titled “Notification Obligation”, “If the cardholder requires the use of a code number, password or any other identifying method, the card holder is responsible for protecting this information securely and taking measures to prevent it from being used by others. If it is lost, stolen, or learns of any transaction that has taken place against its will, it must immediately notify the card issuer.”
In the 12th article titled “Unlawful Use and Insurance of the Card”, it is stated that “In case the card or the information specified in Article 16 is lost or stolen, the card holder shall be liable for damages arising from unlawful use within twenty-four hours prior to the notification to be made, limited to one hundred and fifty New Turkish Liras. is responsible. This limit does not apply in cases where the unlawful use is based on the gross negligence or intent of the holder or in the absence of notification. has provisions.
Again, in article 19 of the credit card agreement between the parties, “In case the credit card is lost, stolen or corrupted so that it cannot be used, the member or the additional card holder is obliged to immediately notify the bank by phone and then confirm it in writing. Adhere to this notice
All responsibility arising from transactions made using a credit card, password or credit card number belongs to the member supplementary card holder, and after a reasonable period of time required for the Bank to disable the credit card for use in the country and abroad, from the receipt of the notification to the Bank, the member will be responsible for any transactions to be carried out with a credit card by third parties. and the additional card holder cannot be held responsible.” arrangement is available.
As it can be seen, the credit card holder is obliged to protect and store the credit card entrusted to him, as well as the information about the use of this card, in accordance with the aforementioned law, from the moment he signs a contract with the bank and the card is in his possession. However, in the event that the credit card or this information is lost or stolen pursuant to the Law No. 5464, it is limited to one hundred and fifty New Turkish Liras for damages arising from unlawful use within twenty-four hours before the notification to the bank, unless there is gross negligence or intent. In this case, Article 12 of the Law should be evaluated according to the characteristics of each concrete case. In the concrete case, it is understood that the plaintiff fulfilled his obligation to notify the defendant Bank, the purchase of 4,000-TL 4 minutes before the notification was made by signing the slip, and it was determined by the expert report that the signature on the slip did not belong to the plaintiff. It cannot be said that this illegal expenditure is based on the plaintiff’s gross negligence and intent. Because the plaintiff had his card stolen while he was traveling in the minibus, and there is no claim or evidence within the scope of the file that he had a negligence that would facilitate the stealing of the card. According to the ordinary flow of life, it is not possible for the plaintiff to check his credit card by constantly opening his wallet while traveling in a minibus. Again, the shopping is done with the signature on the slip, the plaintiff’s password etc. It also shows that you are protecting your information securely. As such, it must be accepted that the plaintiff is responsible for the damages arising from this unlawful use that occurred within twenty-four hours prior to the notification to the Bank in accordance with Article 12 of the Law No. 5464, limited to one hundred and fifty New Turkish Liras. For the reasons explained, ½ defect reduction cannot be made against the plaintiff in terms of other defendants. The court decided to reject the case in written form on the grounds that the plaintiff’s password was reached in a short time, the password was not selected or kept securely, the plaintiff did not check whether his card was in his wallet, he allowed the card to be stolen by carelessness, and therefore he was seriously defective. and a ½ reduction in terms of other defendants is against the procedure and the law and is the reason for annulment…”
At the end of the re-trial, the court was resisted in the previous decision.
APPLICANTS: 1- Attorney of the Plaintiff
2- Defendants … and Murat Doğan’s attorney
LAW GENERAL ASSEMBLY DECISION
After being examined by the General Assembly of Law, it was understood that the decision to resist was appealed in due time and the documents in the file were read, the necessity was discussed:
The case concerns a claim for compensation.
The plaintiff’s attorney stated that his client’s Akbank Axess credit card was stolen on 14.03.2005 between 14:00 and 14:30, while he was traveling in a minibus between Ankara Asfaltı Bostancı-Maltepe road, and as soon as he realized the situation, he notified the bank at 14:43, that the theft was reported. At the time of the execution, a purchase of 4.000 TL was made from İçerenköy Doğan Kuruyemiş, owned by the defendant … and operated by the other defendant …, despite this, only 750 TL was undertaken by the bank and the balance expenditure had to be paid by the client. With the decision of the Kadıköy 2nd High Criminal Court dated 24.11.2005, he was sentenced to be convicted of fraud by passing the credit card unjustly seized through the pos device at the workplace and by issuing false documents as if he had made a purchase, as if the defendant bank did not intend to spend unjustly regarding the card, which he knew was stolen. I refuse to pay the people who committed the crime as if there was no report of theft. Claiming that he was at fault and responsible for not failing to comply, he demanded and sued that the defendants be jointly and severally charged for pecuniary compensation, totaling 3,420,30 TL, together with 5,000 TL non-pecuniary damage, 40% denial indemnity and 145,30 TL warning fee.
The Defendant Bank’s attorney stated that the plaintiff was at fault for not showing the care and diligence in preserving his credit card, that the responsibility of the client bank arose after the stolen transaction was notified to him, that the transaction was made 4 minutes before the 14.43 hour when the stolen notification was made, therefore the bank had no responsibility in good faith. as an indicator, that the cardholder covers 750 TL of the damage, the merchant’s contract with the client bank of the workplace that is the subject of the lawsuit.
He demanded that the case be dismissed, arguing that the pos device did not belong to another bank, that there would be no such thing as blocking or non-payment to the relevant bank in transactions made with an open card by obtaining authorization within the framework of inter-bank rules, and that the conditions for moral compensation were not met.
If the defendant is … and … his attorney; the criminal trial has not been finalized yet, it has not been proven whether his client was even in the shop on the date of the incident, despite this, he was sentenced based on slander and playing with his honor, that the shop where the shopping was made is also a monopoly dealer, therefore it is always used in this workplace, especially on extraordinary days, celebrations or drinking liquor. High amounts of shopping are made upon the demands of restaurants, such purchases are ordinary shopping for a monopoly dealer, identity checks are always made in this workplace, but the controls are not always sufficient against malicious people, similar disruptions can occur in almost every workplace where POS machines are located, They argued that the plaintiff, who had stolen his card, was at fault by not fulfilling his duty to keep it duly, that the claim for 40% compensation had no place in the law in terms of the case at hand, and that the conditions for moral compensation were not met.
The court held that the bank may only be liable for the transactions to be made after the card is reported as stolen, and that the cardholder is grossly faulty due to the failure to fulfill its obligation to protect the card properly, and therefore cannot benefit from the regulation in Article 12 of the Debit Cards and Credit Cards Law no. In the evaluation made in terms of other defendants; The defendant on the grounds that the responsibilities of the member businesses, especially by not performing identity checks and causing shopping with the stolen credit card, should be accepted, but that the plaintiff also allowed the card, which was in its own custody, to be stolen due to carelessness and that he had a fault in the incident, and therefore it would be appropriate for them to bear the loss in half. With the partial acceptance of the claim for pecuniary damages from natural persons, it was decided to collect 1.645.30 TL from these defendants, and to reject the claim for non-pecuniary damages and the claims for surplus because the conditions were not met.
Upon the appeal of the attorney of the plaintiff, the defendants … and the attorney of Murat Doğan, the judgment was overturned by the Special Chamber with the reasons stated in the title of the decision above.
Against the reversal decision, the local court decided to resist by repeating the reasons for the initial decision.
The decision to resist was appealed by the attorney of the plaintiff, the defendants … and the attorney of Murat Doğan.
I- All appeals brought by these defendants against the decision of the Local Court that the defendants … and Murat Doğan had faults and responsibilities in the case in question, and the plaintiff’s attorney’s appeals against the moral compensation and 40% denial compensation, which were rejected by the court. In this way, the aforementioned parts of the first provision became final for the parties and these issues were no longer the subject of dispute between the local court and the Special Chamber.
As such, it was necessary to reject all the objections of the defendant … and Murat Doğan’s attorney, and all the objections of the plaintiff’s attorney, except for the following paragraph, due to the lack of legal benefit.
II- The plaintiff’s attorney above (I). Examination made in terms of appeal objections other than those shown in the paragraph:
Dispute brought before the General Assembly of Law through resistance; In the event that the credit card belonging to the plaintiff was stolen and lost, whether the defendant bank has any responsibility other than 750 TL, which it undertook to pay, and whether the existence of the plaintiff’s fault, which competed with the other defendants … and Murat Doğan, can be accepted, and according to the conclusion to be reached here, the local court rejects the claim for pecuniary damages from the side of the defendant bank, In terms of other defendants, it is gathered at the point of whether it is appropriate to decide by reducing the compensation by half with the mention that the plaintiff also has a fault.
In the resolution of the dispute, it would be useful to examine the distribution of responsibility for the damage caused by the unlawful use of the credit card by the third party, separately from the sides of the case.
The number and expenditures of credit card users in our country have been increasing since 1987. Despite this, the first legal regulation on credit cards in our law was made with Article 10/A added to the Law No. 4077 on the Protection of the Consumer in 2003 with the Law No. 4822. However, this regulation is only aimed at protecting the consumer due to credit cards and related to consumer loans, that is, the scope is limited.
It is a special regulation and does not contain any provision regarding the resistance point.
The establishment and operation of bank and credit cards, card systems, the parties to the card relationship, the rights, obligations and responsibilities of the parties, and the formation of a holistic legal infrastructure that ensures the control of the system can only be established by the “Bank Cards and Credit Cards Law” (BKKK) numbered 5464, which entered into force on 01.03.2006. (Bahtiyar, M.: Legal Liability Due to Unfair Use of the Card According to the Debit Cards and Credit Cards Law, İÜHFM C.LXXI, S.2, p.71, access: http://dergipark….tr/download/ article-file/97826).
According to Article 12 of the aforementioned Law, titled “Unlawful use and insurance of the card”, in case of loss or theft of the card, the cardholder may be held liable for damages arising from unlawful use within twenty-four hours prior to the notification to be made, limited to only one hundred and fifty Turkish Liras; In cases where the illegal use is based on the gross negligence or intent of the holder or the notification is not made, the responsibility will be entirely on the cardholder.
Since there was no regulation in consumer law in the period before the BKKK No. 5464 came into force, disputes arising from the unfair use of credit cards can only be resolved within the framework of the general provisions of commercial law and law of obligations.
When the legal responsibilities of banks are examined, limited to this framework and the point of conflict;
Banks are institutions that are under the intense supervision and intervention of the state and can operate under license and on the condition that they comply with the special principles determined for them. This situation, which is unique to the banking sector, causes the large masses of people who deal with banks to have a special sense of trust towards banks. As long as it is legally worthy of protection, this trust obliges banks to be subject to different legal liability rules from other commercial enterprises and classical company types (Battal, A.: Legal Responsibility of Banks in the Light of Trust Institution Qualification, Ankara 2001, p. 1).
Due to this trust in the public, banks are under a more qualified duty of care than an ordinary merchant’s obligation to act prudently (Turkish Commercial Code No. 6762, art.20/2).
As a matter of fact, considering the regulation in Article 99 of the Code of Obligations (BK) No. 818, which should be applied in the dispute as of the effective date, and Article 115 of the Turkish Code of Obligations (TCO) No. 6098, which came into force later; Since their activities are subject to license and require expertise, banks may be liable for even the slightest faults in the services they provide.
One of the services provided by banks can be defined as “a payment and credit tool that allows the cardholder to purchase goods and services from certain workplaces without paying cash and to withdraw credit from bank branches and automatic cash withdrawal devices”, which is the root cause of the concrete incident (Yılmaz, E.: Turkey). De Credit Card Application and Its Economic Effects, Istanbul 2000, p.124) are credit cards.
Within the scope of the legal relationship in the nature of a framework contract that creates a permanent debt relationship between the bank and the cardholder, certain obligations fall on the cardholder, the bank and the business owner of the pos device where the credit card is processed.
In particular, the fact that the credit card agreements between the customer and the card issuer are an atypical business agreement that includes part work, part service, and part power of attorney (Atamer, MY: Who Will Bear the Losses Incurred in the Case of Unlawful Use of the Credit Card by a Third Party?, In the Information Society Law-Ünal Tekinalp’e Armağan, İstanbul 2003, C.1, p. 1002) and the rule in the second paragraph of Article 386 of the UK, that the provisions of the mandate shall be applied to the contracts regarding the acts of performance that are not clearly regulated in the law, in established practice. The basis of the contractual responsibilities of banks is evaluated within the framework of the provisions of the proxy contract in many disputes.
At this point, it would be useful to briefly mention the nature of the mandate contract.
“Authority Contract”, which is one of the contracts that gives rise to debt, is defined in article 386/1 of the Code of Obligations (UK) No. 818, which must be applied in disputes as of the effective date, “A proxy is a contract with which the proxy manages the administration of the work assigned to him in the contract. obliges the performance of the service.” defined as.
As can be understood from this definition, the elements of the mandate contract; It can be listed as the attorney’s undertaking a duty of performance, the fulfillment of the duty of doing business in accordance with the interests of someone else and his will, the attorney’s undertaking the act of performance, not the result of the performance, and acting independently while fulfilling the duty of performance, and deciding on a fee for this performance, although it is not obligatory.
In addition to these, a mandate contract based on the principle of trust
One of the most important debts of the attorney is the debt of loyalty.
The debt of loyalty, care and secrecy is regulated in article 390/2 of the UK; In the article, “the attorney is obliged to perform the power of attorney against the client in a good manner.” has been called.
Loyalty debt can be deduced from the fact that the attorney performs a job that belongs to someone else, not himself, and that the act of acting in accordance with the interests and will of the person whom he sees the job is a mandatory element of the attorneyship. Pursuant to this debt, the attorney is obliged to protect and protect the client’s interests in accordance with the purpose of the contract, both during the continuation of the attorneyship and after the termination of the attorneyship relationship. It is because of this debt that the attorney should always act in the best interest of the client and direct his behavior according to the results that the client wants to achieve with this contract.
In other words, as a duty of loyalty, the attorney is obliged to act in the best interest of his client and to avoid acts that will harm him. The debt of loyalty arises again, even if there is no clear provision in the contract about how the power of attorney will be fulfilled and there is no instruction from the client.
As a matter of fact, in this context in the concrete dispute, in addition to the care obligations of the card issuer and member workplaces in order to prevent the unlawful use of the credit card by the third party, the protection and preservation of the card as well as the card holder, informing the bank as soon as possible from the moment he is aware of the abuse of the card. It is clear that some obligations such as
In cases where the card holder is not at fault for the card to fall into the hands of malicious persons, the risk of unlawful use arises from the card issuing institutions (Atamer, p.1019). In the face of the fact that the credit card system is extremely open to abuse, in fact, the bank does not have the will to make payments to the third party due to the use of the stolen credit card, so banks make contracts with general transaction conditions that put this risk entirely on the customer; In this way, if the already weak party of the contract is unduly victimized and a deviation that impairs the justice of the contract is detected, it will be necessary to accept that the relevant contract provision is invalid due to breach of public order.
At this point, in order to discuss the fault of the plaintiff, the nature of the crime he is the victim of must be revealed.
According to the documents related to the criminal case of the Kadıköy 2nd High Criminal Court, numbered 2005/220, included in the file, the plaintiff consumer had his wallet stolen as a victim of pickpocketing in the public transport vehicle he got on on the date of the incident, and that another person was a similar victim in the same vehicle at the same time and told him The credit card belonging to the defendants … and Murat Doğan were used in shopping with a false signature, but the perpetrator remained unknown in terms of the crime of pickpocketing, because … he was acquitted due to the lack of evidence showing that he committed theft, this theft and the court’s conviction, which was time-barred at the appeal stage. It is understood that the public case was dropped for fraud crimes by making the bank, which was sentenced, a vehicle.
Article 141 of the Turkish Penal Code (TCK) No. 5237; has accepted as the basic form of the crime of stealing a movable property belonging to someone else without the consent of the possessor, for the purpose of benefiting himself or someone else, in subparagraph (b) of paragraph 2 of Article 142 of the same Law; If the crime is committed by taking away the belongings carried in the hand or on the top or with special skill, it is sanctioned as a qualified theft crime, in the last sentence of the same paragraph; He considered the commission of the crime specified in subparagraph (b) against a person who cannot defend himself in terms of body or spirit, as an aggravating reason for the punishment.
In the doctrine, it is stated that with the aforementioned paragraph, actions such as taking away the belongings carried in the hand or on the top by making use of the absentmindedness of the victim, as well as the acts of snatching and pickpocketing, which are carried out with special skill, are sanctioned, but the phrases of snatching and pickpocketing are not included in the text of the law (Centel, N. ./Zafer, H./ Çakmut, Ö.; Crimes Against Persons, 2017, p. 312 ff.).
Since this qualified case was not regulated separately in TPC numbered 765, which was in force as of the date of the crime, the act was evaluated within the scope of paragraph 1 of article 491 of the same Law.
As a matter of fact, these issues were also explained in the decision of the Criminal General Assembly of the Supreme Court, dated 16.01.2018 and numbered 2017/13-588 E., 2018/6 K.
When the concrete event is evaluated in the light of all these explanations;
According to the announced legal regulations and the way the concrete event occurred, there is no evidence reflected in the file that the plaintiff consumer has a faulty action in the preservation and storage of the card.
As soon as he realizes the situation, he immediately notifies the bank and fulfills his responsibility in this respect. In this case, there is no fault attributable to the plaintiff in the damage incurred. As such, it is inappropriate for the court to reduce the amount of compensation for which the defendants … and Murat Doğan are responsible, on the contrary, and it is unlawful to issue a decision to resist in writing, while it is necessary to comply with the decision of the Special Chamber that points in this direction.
In addition, since it is not possible to apply the Law No. 5464, which came into force after the event date of the dispute, to the concrete case, although the decision of the Special Chamber to reverse the decision of the Special Chamber that Article 12 of the aforementioned Law should be taken into account in terms of the defendant bank is not correct; In the event, where it is understood that a very high amount of shopping was made only by signature and according to the card usage habits of the claimant consumer, within the framework of the principles explained in detail above, it should be investigated by expert experts, if necessary, whether the bank uses a system that is not sufficient according to the conditions of the day and has a security weakness as of the date of the event. It is also unlawful for the Bank to reject the claim for pecuniary damages on the grounds that the plaintiff is deemed to be at serious fault and the defendant bank is not responsible.
As a result, the provision of resistance should be overturned for this different reason.
CONCLUSION Ç: For the reasons explained in subparagraph (I) above, the defendants … and Murat Doğan’s attorney’s all other appeals, and the plaintiff’s attorney’s other appeals, which are outside the scope of subparagraph (II), are REJECTED for lack of legal benefit, and the plaintiff’s attorney for various reasons and reasons explained in subparagraph (II). With the acceptance of the objections of the plaintiff’s attorney and the reasons given in the decision to rescind the Special Chamber for the defendant … and Murat Doğan, and for the different reasons and reasons explained in terms of the defendant Bank, the decision of resisting was accepted in accordance with the Civil Procedure No. In accordance with the 429th article of the Law, it will be overturned for the benefit of the plaintiff, the appeal fee will be returned to the depositor, in case of request, 440/III-1 of the same Law. It was decided unanimously on 14.02.2019, with the way of rectification being closed.
