T.R. YARGITAY 15th Civil Chamber Basis: 2017/ 4843 Decision: 2019 / 2993 Decision Date: 26.06.2019
SUMMARY: The court held that the claim that the execution of the contract was impossible without the fault of the plaintiff could not be proven, the defendant land owner’s dismissal from the power of attorney to not use the powers in the power of attorney given to the plaintiff’s authority, it is not in the nature of revocation from the contract, the will of the parties to withdraw from the contract did not agree, and the plaintiff according to Articles 137 and 138 of the TCO. In the absence of a claim, the case should be dismissed, but as a result of the wrong evaluation, it was not partially accepted, and the decision was reversed.
(6098 S. K. art. 136, 137, 138) (492 S. K. art. 42)
Lawsuit: Although the defendant’s attorney was asked to examine the above-mentioned judgment on appeal, with a hearing, the plaintiff’s attorney did not show up on the appointed day for the hearing. Attorney for the Defendant…. came. After it was understood that the appeal petition was submitted in due time and the defendant’s lawyer, who was present, was heard, due to the lack of time, the case was left to be examined and resolved for another day. This time, after the papers in the file were read, the necessity of the job was discussed and thought:
The case is related to the demand for the collection of expenses, loss of profit and compensation receivables due to the inability to perform the construction contract in return for the land share. The decision of the court regarding the partial acceptance of the case over TL 689,058.88 was appealed by the counsel of the defendant.
1- According to the articles in the file, the evidence on which the decision is based, legally compelling reasons, and in particular, it is possible for the defendant land owner to file a separate lawsuit regarding the delay compensation, the rent paid to the relocated house, the repair cost of the damage and destruction, and the cancellation of the annotation. other appeals were not seen in place and had to be rejected.
2-The plaintiff contractor is the defendant land owner and between the parties, for the construction of the land in return for flat on the plot numbered 2767, island 5, in … province, … district … Promise for Sale of Immovable and Land in the Form of Arrangement No. 38802, day 16.10.2014, at the 57th Notary Public In return, the Construction Contract was drawn up and signed.
In the plaintiff-contractor case; The price paid in addition to the contract, negative damages, penal clause and loss of profit due to the impossibility of performance, alleging that the defendant landlord is unwilling to hand over the immovable as empty, constantly makes new requests, does not approve the study projects for an unjust reason, and prevents the performance of the contract with an unconstitutional and malicious approach. He claimed compensation for his debts.
The defendant land owner, in his reply petition and in his defenses at the stages, demanded the rejection of the case, but in the declaration petition dated 27.06.2016, which does not mean acceptance, he requested the clearing and deduction of the sum of the delay compensation, loss of rent, damages due to non-delivery on time and the damages in return for the repair of the destruction in the building. . The defendant land owner does not have an express or implied statement accepting that the contract has been terminated or the performance of the contract has become impossible.
Impossibility of performance is regulated in Articles 136 and the following of TCO numbered 6098, and in Article 136, if the performance of the debt becomes impossible due to reasons for which the debtor cannot be held responsible, the debt will expire, the parties will demand what they have given back, in Article 137, the debtor will only get rid of the debt in the part of the impossibility, in article 138. It is stated that the performance of the debt will become impossible due to excessive difficulty in performance, and accordingly, the debtor has the right to request the adaptation of the contract to the new conditions and, if it is not possible, to withdraw from the contract. In the justification of the court decision, the claims that the execution of the contract became impossible due to the fact that the plaintiff contractor did not deliver the land as empty, the survey projects were rejected without justification and he did not want to hand over the building subject to the lawsuit, was not found out of place.
Since construction contracts in return for land share also include the transfer of shares in the title deed, it is not possible to terminate with the unilateral declaration of will of the parties and its receipt by the other party. The merger of the will of the parties can be terminated by a court decision or by the decision of the court. The dismissal of the representative appointed by the power of attorney given to the contractor or his representative by the land owner pursuant to the contract is not sufficient to tacitly accept that the contract has been withdrawn. Despite the dismissal from the power of attorney, the contractor may file a lawsuit against the landowners, requesting and obtaining the necessary authorizations for the execution of the contract in the power of attorney, which was refrained from and dismissed even though it was required to be done by the land owner as per the contract.
In this case, the court decided that the claim of the plaintiff that the execution of the contract was impossible without his own fault could not be proved, and the defendant land owner’s authority in the power of attorney given to the plaintiff official.
The dismissal of the case is not in the nature of renunciation of the contract, the will of the parties to withdraw from the contract and the plaintiff does not have a request in accordance with the Articles 137 and 138 of the TCO.
Decision and Conclusion: For the reasons explained in the first paragraph above, the defendant’s other appeals were rejected, the verdict was overturned in favor of the defendant with the acceptance of the second paragraph, the attorney’s fee of 2.037.00 TL was collected from the plaintiff and given to the defendant who was represented by the attorney at the hearing at the Court of Cassation, Law no. 5766 Pursuant to the amendment made with Article 11, the Court of Appeals application fee of 176.60 TL, which should be charged in accordance with Article 42/2-d of the Fees Law, is to be collected from the appellant, the appeal fee paid is returned to the appellant upon request, within 15 days from the date of notification against the decision. It was unanimously decided on 26.06.2019 that a correction request could be made. (¤¤)
