T.C.
SUPREME COURT
Civil Department
2012/10938
2012/10436
01.10.2012
* CLAIMS OF WILLPOWER IMPAIRMENT AND EXCESSIVE USE IN LEGAL PROCEEDINGS (Which Can be Proven by All Kinds of Evidence / That the Plaintiff’s Witnesses Are Wrong Not to Be Heard – Elements of Error Cheating and Gain /Unfair Periods)
* ABSENCE OF WRITTEN EVIDENCE REQUIREMENT (Due to the Fact that Claims of Willpower Disorder and Excessive Use in Legal Proceedings Can be Proven by All Kinds of Evidence, It is Necessary to be Observed by the Local Court – That the Plaintiff’s Witnesses Are Not Listened To is Erroneous)
* WITNESS EVIDENCE (It is Possible to Prove Claims of Error Cheating and Will Disorder Such as Overcharge with All Kinds of Evidence – This Issue Has Not Been Taken into Account by the Court / Insufficient Research Has Not Been Conducted / The Plaintiff’s Witnesses Should be Heard)
* STATUTE OF LIMITATIONS IN THE CASE OF GABIN (During the Decriminalization Period of One Year, an Annulment Case Can be Filed – An Extreme Disproportion Between the Acts Will be Determined – The Psychological Structure of the Victim and Subjective Elements Will be Investigated)
* LEARNING ABOUT THE FRAUD (A Statement of Will That Will Be Sent to the Other Party Through a Def, In Which a Lawsuit Can Be Filed Within a One–Year Period, Is Also Valid / The Claim Can Be Proved with Any Evidence / There are No Written Evidence Requirements)
* CASE OF CANCELLATION OF TITLE DEEDS AND REGISTRATION BASED ON THE CAUSES OF ERROR AND ERROR (There is No Requirement to Prove It with Written Evidence – It Is Possible to Prove It with Any Evidence, Even If There is No Written Document /Plaintiff Witnesses Should Be Heard) 6098/m. 28,36 818/m. 21,28 6100/m. 203
SUMMARY : The case is related to the request to cancel and register the title deed based on the legal reason of error, cheating, Overcharge .The court decided to dismiss the case on the grounds that the claim must be proved by absolute written evidence.However, it is possible to prove claims of will disorder and excessive use in legal proceedings such as error and fraud with a witness and all kinds of evidence, even if it is not a written document.Error is also a mistake, and there is a mistake in the trick.As cheating can be proved by all kinds of evidence, the exercise of the right to cancel does not depend on any form. A statement of will that will be sent to the counterparty within a one-year period after the date of learning about the fraud can also be used through a defi or lawsuit.It gives the right to file a cancellation lawsuit and prove its claim with all kinds of evidence and ask for a refund to the one whose existence of the gain (excessive use) has been damaged (exploited) by notifying that it is not bound by the contract within a one-year period of rights reduction from the date of the contract.In the case of Overcharge (excessive use), first of all, the excessive disproportion between the acts should be emphasized, if the objective element is proved, the personality of the mutazarrır dec proven, the material, spiritual aspects such as age, health status, place in society, economic and psychological structure, that is, the subjective element, should be investigated and examined in depth.The court did not conduct an investigation covering the principles and facts described above, and the plaintiff’s witnesses were not listened to and the request to have a witness heard was rejected, considering it misleading.
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:
DECISION : The case is related to the request to cancel and register the title deed based on the legal reason of error, cheating, Overcharge .The court decided to dismiss the case.
From the contents of the file and the evidence collected; it is understood that kayden maliki has assigned the independent section No. 16 on parcel 6064 ada, 3 to the defendant who is his bride by sale on 09/02/2010.
The plaintiff filed the lawsuit in his petition, claiming that he secured his real estate with the suggestion of his son and bride in order to contribute to the financial distress of his daughter out of the case, the price was not paid, he was 71 years old, he was deceived, the security was performed by cheating, the value in the contract was shown to be too low.
As is known, cheating is generally defined as arousing a deliberately erroneous opinion in order to induce a person to declare a will, especially to enter into a contract, or protecting or maintaining an essentially existing erroneous opinion. Error is also a mistake, and there is a mistake 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 has concluded 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 the presence of the mentioned conditions, the deceived party can effectively eliminate the legal relationship to the past (makable shamil) by exercising its right and ask for what it has given back.
On the other hand, cheating can be proven by all kinds of evidence, and the exercise of the right to cancel does not depend on any form. A statement of will that will be sent to the counterparty within a one-year period after the date of learning about the fraud can also be used through a defi or lawsuit.
On the other hand, the lesion of the contract (excessive use) nisbetsizlig for the adoption of sound due to claims and counter claims between the parties is one of a special status in the other person knowing,abuse, and exploitation as a result must occur. In order not to oppress the weak to the strong, regulations have also been made in our law No. 6098 of the Turkish Code of Obligations entered into force on 01/07/2012 to protect people who have been dragged into contracts and transferring their goods at a very low price due to their narrow and difficult situation 28. 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 provision has been implemented.
Then, without the benefit of excess Gabi) mention to be able to the extreme disproportion between the lens element which is next to act by dating in maize, inexperience, impulsiveness (lightness ), the presence of the other side take advantage of the move to exploit the subjective deliberate even in the form of two elements depends on the realization. It gives the right to file a cancellation lawsuit and prove its claim with all kinds of evidence and ask for a refund to the one whose existence of the gain (excessive use) has been damaged (exploited) by notifying that it is not bound by the contract within a one-year period of rights reduction from the date of the contract.
It should be noted right away that in the case of Overcharge (excessive use), first of all, excessive disproportion between actions should be emphasized, if the objective element is proved, material dec spiritual aspects such as the personality, age, health status, place in society, economic and psychological structure of the mutazarr, that is, the subjective element should be investigated and examined in depth.
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 it is possible to prove allegations of willpower disorder and excessive use in legal proceedings with a witness and all kinds of evidence, even if it is not a written document, in the face of the principles and facts described above and the regulation in Article 203 /o of HMK No. 6100 (Article 293/5 of HUMK No. 1086).
However, the court did not conduct an investigation covering the principles and facts described above, and the plaintiff’s witnesses were not listened to and the request to have a witness heard was rejected, considering it misleading.
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 referring to this direction are in place. For the reasons described in the provision on its adoption (provisional Article 3 of Law No. 6100.article 1086 HUMK.428 of the.it was decided unanimously on 01.10.2012 that it would be OVERTURNED in accordance with its article and that the advance fee received would be returned to the appellant.
