General Assembly of Law
Base Number: 2013/1203
Decision Number: 2014/442
“Justice Text”
COURT: Ankara 10th Civil Court of First Instance
DATE: 27/06/2012
NUMBER: 2012/310-2012/310
At the end of the trial due to the “pecuniary compensation” case between the parties; Upon the examination of the decision dated 14.06.2011 and numbered 2009/168 E., 2011/213 K. given by the Ankara 10th Civil Court of First Instance regarding the partial acceptance and partial rejection of the case, the plaintiff and the defendants were requested by the attorneys of M. E., the 13th Court of Cassation. With the decision of the Legal Department dated 07.03.2012 and numbered 15783/5615 E., K.;
(…The plaintiff claimed that on 18.03.2007, the defendant Fahrettin bought the vehicle of Muzaffer, the vehicle of which was put up for sale in the second-hand car market, from the other defendant Erol, who is the attorney of Muzaffer, for 33,000,00 TL, the vehicle worth 10,000,00 TL. He gave it to Muzaffer, gave 23,000,00 TL to the defendant Muzaffer, when he went to the other defendant company to do an appraisal before buying the vehicle, they gave verbal confirmation that there was no problem with the vehicle, that he suffered financial losses due to service fees when the vehicle was constantly malfunctioning, and as a result, the vehicle was damaged. Claiming that he learned on 12.2.2009 that the real problem was due to the flood, Muzaffer, Erol and Fahrettin said that the contract should be canceled with retroactive effect and compensation for negative damages, with the legal interest of the vehicle price of 33,000,00 TL, without prejudice to their rights regarding the surplus. Request collection of 5.700,00 TL from Volan Küçükyılmaz Ltd. Şt. business.
The defendants requested that the case be dismissed.
The court decided to accept the case partially, and the judgment was appealed by the plaintiff and the defendant M. E..
Pursuant to Article 294 of the Code of Civil Procedure numbered 1-6100, the court gives the verdict at the end of the hearing. In any case, the interpretation of the verdict is done by reading the result of the verdict in the hearing minutes. In cases where only the result of the judgment is declared due to compelling reasons, the reasoned decision must be written within one month starting from the date of its issuance. 297/2 of the HMK. In accordance with the article, with the judgment given about each of the demands in the concluding part of the provision, the debts and the rights granted to the parties, under the serial number; It should be shown clearly, without arousing suspicion or hesitation. 298/2 of HMK. Pursuant to the article, the reasoned decision cannot be contrary to the result of the sentence implied. In fact, there is no legal opportunity for the judge, who has withdrawn from the case by writing the short decision and announcing it, to change this decision. The fact that the short decision and the reasoned decision are different from each other creates a situation contrary to the publicity of the proceedings, the 141st article of the Constitution, and the above-mentioned imperative articles of the HMK. In addition, this issue is related to public order and its observance is a duty imposed on the judge by law.
In the concrete case, while the court was making a judgment, in the short decision, the case was partially accepted by the defendant Muzaffer and the case was accepted at a cost of 33,000,00 TL on the condition of returning the vehicle. It has been decided to collect the vehicle price of 33,000,00 TL from the defendant Muzaffer with the legal interest to be accrued from the date of the lawsuit. It is clearly understood that the provision in the reasoned decision and the short decision is contrary to the principles and provisions of the law that the short decision explained above and the reasoned decision should be compatible with each other. As explained just above, and as adopted in the Judgment Combination Decision dated 10.04.1992 and numbered 1991/7, 1992/4, without adhering to the short decision, but in such a way that the contradiction between the short decision and the reasoned decision will be eliminated and there will be no hesitation in execution, the court has re-issued a decision. The contradictory provision had to be overturned in order for it to be granted.
2- According to the reason for the reversal, it was not deemed necessary to examine the other appeals of the plaintiff and the defendant M. E..)
The case was rejected by the court in the previous decision at the end of the re-trial.
After being examined by the General Assembly of Law, it was understood that the decision to resist was appealed in due time and the papers in the file were read, and the necessity was discussed:
The case concerns a claim for pecuniary damage.
The decision of the local court regarding the partial acceptance of the case was overturned by the Special Chamber upon the appeal of the attorneys of the plaintiff and the defendants M. E., with the justification written in the title section above; The court has resisted in the previous decision.
The attorneys of M. E., who are among the plaintiffs and defendants, are appealing the decision to resist.
During the meeting at the General Assembly of Law, the nature of the dispute and the defendant ….. Mot. Vehicle. Truss. Ins. Ltd. Şti., the issue of whether the case should be heard and concluded in the Consumer Court or the Civil Court of First Instance has been evaluated as a preliminary issue.
g that creates the front problem
It is useful to make the following explanations about the task.
In the 1st article titled “Purpose” of the Law No. 4077 on the Protection of the Consumer (TKHK No. 4077) amended by the Law No. 4822; After explaining the purpose of the law, in article 2 titled scope; The provision “This law covers all kinds of consumer transactions in which the consumer is one of the parties in the goods and service markets for the purposes specified in the first article”. In Article 3 of the Law, goods; It refers to movable goods subject to shopping, immovable properties for residential and holiday purposes, and software, audio, video and similar intangible goods prepared for use in electronic environment. Sales person; includes natural or legal persons who offer goods to consumers within the scope of their commercial or professional activities, including public legal entities. Consumer is defined as a natural or legal person who acquires, uses or benefits from a good or service for commercial or non-professional purposes.
In order for a legal transaction to be considered to be within the scope of TKHK numbered 4077, there must be a legal transaction regarding the sale of goods and services between the parties defined above within the scope of the law. In the concrete dispute, since it is alleged that the defendant (…..Mot. Vehicles. Truz. İnş. Ltd. Şti.), which provides vehicle maintenance and repair services, provides appraisal services on whether there is any defect in the vehicle that the plaintiff (buyer) bought from the other defendants, the parties It is understood that the relationship between them is within the scope of TKHK numbered 4077.
Article 23 of the TKHK numbered 4077 stipulates that all kinds of disputes regarding the implementation of this law will be dealt with in consumer courts. Plaintiff and defendant ….Mot. Vehicle. Truss. Ins. Ltd. Sti. The dispute between the parties stems from the pre-sales appraisal service, and since it falls within the scope of the TKHK, the Consumer Court is responsible for hearing the case. Considering the titles of the other defendants, it can be thought that the general court is in charge as a rule; In cases where the cases in the general court and the special court must be heard together, the case should be heard in the Consumer Court for these defendants, since the case must be continued in the special court. In addition, the regulations related to the task are related to public order and are observed ex officio at every stage of the proceedings, even if the parties do not put forward. There is no vested right in matters related to the task. In this case, while the court should give a decision of non-jurisdiction to the consumer court and send the file, it is against the procedure and the law to decide on the basis of the work.
As such, the local court should take this situation into account and decide according to the result, but it is against the procedure and the law to resist the previous decision.
With this different reason explained, the decision to resist had to be reversed; According to the reason for the reversal, other appeals were not examined.
CONCLUSION Ç: 1- With the acceptance of the appeal objections of the plaintiff and the defendant M. E.’s attorneys, the decision to resist was withdrawn from the procedure in accordance with Article 429 of the HUMK. It is stated that there is no room for reviewing the other appeals regarding the merits of the case, according to the reason for the reversal, at this stage. In accordance with the article, it was decided unanimously on 02.04.2014, with the possibility of rectification within 15 days following the notification of the decision.
