(Decision of the General Assembly of Civil Chambers of the Court of Cassation dated 4.11.2021and numbered 2018/11-88 E., 2021/1351 K.)
SUBJECT OF DISPUTE AND PLAINTIFF’S REQUEST
Plaintiff’s attorney; that the German flagged boat named “Lady …” was purchased by his client with the “sailing motor boat sales contract” signed between his client and the defendant at the notary on 03.08.2007, that the real estate located in Bornova, Izmir was transferred to the defendant in return, that they took the boat and brought it to Alanya and changed the name of the boat to “Lady …”, that the boat which was at the port was stolen on 06.11.2007, that it was later learned that there were two keys to the boat and that one key was given to a person outside the case authorized by the defendant with a power of attorney, that this person sold the boat to S. Paktan outside the case, that .. started the boat with the key and took it away, that the boat was later found in Rize on 24.02.2011 and was taken back by his client, that however, that many expenses were incurred to take the boat back and bring it back during this period, and that his client also made a lot of expenses during the period He claimed that the damage occurred because he could not use the boat, that the defendant was at fault for not taking the second key from the attorney he dismissed, and requested that the damage suffered because his client could not use the boat, the expenses incurred to retrieve and bring the boat back, and also a moral compensation of 35,000 TL be collected from the defendant; he stated that the expenses incurred during the trial to retrieve and bring the boat back amounted to 18,105.45 TL.
DEFENDANT’S ANSWER
The defendant’s attorney argued that his client had cancelled the power of attorney he had given to …, who was not involved in the lawsuit, before selling to the plaintiff, that the sale to the plaintiff was a valid sale and that the boat was delivered to the plaintiff’s heir, and that his client was not at fault in the theft of the boat, and that the case should be dismissed.
LOCAL COURT DECISION
With the decision of the Izmir 5th Commercial Court of First Instance dated 25.06.2015 and numbered 2014/1137 E., 2015/527 K.; it was decided that the criminal case filed against the defendant and … was concluded with acquittal, the lawsuit for cancellation of the title deed and registration filed by the defendant regarding the real estate given in exchange for the boat was accepted and it was decided that the title deed be registered in the name of the defendant in exchange for the boat whose ownership was transferred to the plaintiff, in this case the sale of the boat to the plaintiff was valid, the sale made to … without the authority of Manuela Zweckmayr, whom the defendant dismissed from the attorneyship, was invalid, the defendant was not responsible for the damages arising from the theft of the boat, and the plaintiff should have put forward his material and moral compensation claims against … and …, who were said to have abused their attorneyship position, and the case was dismissed.
COURT OF APPEALS 11TH CIVIL CHAMBER REVERSAL DECISION
The Court of Cassation 11th Civil Chamber, with its decision dated 19.04.2017 and numbered 2016/1396 E., 2017/2300 K., ruled that; “…The case is about the request for material and moral compensation based on the boat sales contract. The court ruled to reject the case on the grounds that the plaintiff should direct his demands to the non-plaintiffs who caused the damage, not to the defendant G. P.
The plaintiff purchased a boat from the defendant with a boat sales contract, but the boat was taken from its location by … outside the lawsuit. … purchased the boat from …, who was acting as the defendant’s attorney. Although the defendant dismissed … from his attorneyship before this sale, he did not give any notice regarding the delivery of the spare key of the boat. …, who was dismissed from his attorneyship, sold the boat belonging to the defendant to … and delivered the spare key to this person, although he did not have the authority to do so. In the civil and criminal cases filed and concluded between the parties regarding the issue, it was concluded that the sale made to … was invalid and the sale between the plaintiffs … and … was valid.
The sales contract regulated in Articles 207 and following of the Turkish Code of Obligations No. 6098 is defined as a contract in which the seller transfers the possession and ownership of the sold thing to the buyer and the buyer assumes the obligation to pay a price in return. If there are any instruments that provide control over the sold thing for the transfer of possession, these must also be delivered to the buyer. In the present case, the defendant did not request the return of the spare key of the boat when dismissing his attorney …, but contented himself with only dismissal, and the unauthorized attorney who had the spare key in his possession subjected the boat to sale for the second time. In this way, …, who thought he had purchased the boat, took delivery of the boat from the port where it was located with the key in his hand. In that case, the defendant, who is the owner of the boat, should have delivered all the instruments of control related to the boat to the plaintiff while carrying out the sale and transfer transactions, but he did not deliver the spare key, which caused the damages claimed by the plaintiff, and he is liable for these damages according to Article 219 of the TCC. In this case, the court should have accepted that the defendant did not fulfill the obligations it undertook under the sales contract and caused the plaintiff’s damages, and should have gone into the merits of the case, made an assessment of the damages requested by the plaintiff, and if necessary, obtained an expert report and made a decision based on its results. However, it was not correct to decide to dismiss the case with written reasons, and the decision should have been reversed in favor of the plaintiff…” The decision was overturned on the grounds that.
LOCAL COURT’S DECISION TO RESIST
İzmir 5th Commercial Court of First Instance, with its decision dated 12.10.2017 and numbered 2017/750 E., 2017/957 K., in addition to the previous justification; It is not possible to qualify …’s taking the key of the boat from …, who was acting as the defendant’s attorney, and taking possession of the boat in this way as a defect, despite his dismissal, and therefore there is no defect liability that can be attributed to the seller, because the defendant duly dismissed …, who was his attorney, from his attorneyship, the defendant’s liability is eliminated due to the intentional fault of the attorney … in the concrete incident, in other words, …’s intention cut the causal link requiring the defendant’s liability in the concrete incident, therefore, whether the key was taken back or not remains a detail, the mere fact that the key was not taken back cannot prevent the fault of the attorney or the third party, the defendant’s failure to take the key back is not sufficient on its own for the emergence of liability, because even if the defendant took the key back, the attorney Manuela Zweckmayr could have obtained the key again or copied it or somehow obtained it, and in addition, if the concrete incident is a guarantee against the record or a defect The decision to resist was made on the grounds that the provisions of the counter-guarantee could not be applied. The decision to resist was appealed by the plaintiff’s attorney within the period.
DECISION OF THE GENERAL ASSEMBLY OF CIVIL CHAMBERS OF THE COURT OF CASSATION
The dispute that came before the General Assembly of Law by way of resistance; The issue of whether the defendant, who is the owner of the boat in question, cannot be held responsible for the damage caused by the plaintiff in the event that the defendant, who is the owner of the boat, did not deliver the spare key of the boat to the plaintiff while carrying out the sale and transfer transactions and the boat was taken by a third party from the port where the boat was located with this spare key.
In order to resolve the dispute, it is useful to first put forward the regulation regarding the violation of the contractual ancillary obligations.
Contractual debt relations include principal performance and ancillary performance obligations and ancillary obligations. The debtor must act in accordance with these obligations and fulfill their requirements. Violation of these obligations arising from the debt relationship and especially from the contract also constitutes a breach of the contract. Breach of the contract, on the other hand, appears as impossibility of defective performance (non-performance of the obligation), default or failure to perform properly.
As can be seen, the breach of the contract is not only in case of impossibility of defective performance and default, but also in case of “failure to perform properly”. For the case of “failure to perform properly”, the doctrine also uses the more comprehensive concept of “positive breach of contract”. The proper performance of a debt is the complete and correct fulfillment of the obligation in accordance with the debt. In order to be able to talk about proper performance, the borrowed act must be fulfilled with all its elements. Elements of performance; It consists of the parties, place and time of performance and the amount and qualities of the subject of performance. If the performance is not performed by the performance debtor to the performance creditor at the agreed place and time, in accordance with the amount and nature, there is a failure to perform properly. The concept of non-performance includes both the state of bad performance and the violation of ancillary obligations (Eren, Fikret: General Provisions of the Law of Obligations, 22. Edition, Ankara 2017, p. 1072 ).
Bad performance is the failure to perform the act fully and correctly in accordance with the nature of the act in the debt relationship. In other words, in bad performance, the qualities of the act performed are incomplete, bad and defective. Defective performance, which is a type of bad performance; It is specifically regulated in sales, lease and work contracts both in the Code of Obligations No. 818 (BK No. 818), which should be applied to the concrete case, and in the Turkish Code of Obligations No. 6098 (TCO No. 6098), which entered into force on 01.07.2012. For example, pursuant to Article 194/1 of the BK No. 818 (219/1 of the TCO No. 6098), the seller is responsible to the buyer for the promised qualities of the sold, as well as for material or legal defects that eliminate or significantly reduce its value or purposeful interest.
The contractual obligation relationship includes some obligations called “collateral obligations” in addition to the primary and secondary obligations. These obligations generally arise from the rule of honesty and therefore from the relationship of trust. In this sense, the source of collateral obligations is the rule of honesty regulated in Article 2/1 of the Turkish Civil Code (TMK). Because, according to Article 2/1 of the TMK, everyone must comply with the rule of honesty while fulfilling their obligations. Behavior in accordance with the rule of honesty imposes collateral obligations on the parties not only at the time the contract negotiations begin or during the execution of the contract, but also after the execution of the contract.
Ancillary obligations are divided into two as “ancillary obligations” and “protection obligations” in terms of their functions. Ancillary obligations that assist in performance are obligations that determine the type of contract, especially those that assist in the performance of the principal act and serve to ensure that the performance is carried out in accordance with the benefit expected by the creditor from the contract. These obligations are especially important during the preparations and performance of the essential act. In this context, for example, if the availability or packaging of a sold good or the use of the goods poses a danger to the buyer, it is a subsidiary obligation to provide the necessary clarification in this regard (Eren, p. 38). Therefore, in case of violation of ancillary obligations that help performance, such as not providing the spare key of the sold vehicle or not giving the necessary warning in this regard, not providing the user manual for the sold product or not keeping the spare parts stock of the sold product, there is a “failure to perform properly” or “positive breach of the contract”.
Protective obligations are obligations that are not related to the performance of the obligation, but serve to protect the interests of the creditor other than the performance interest. Since these obligations are not related to the performance of the obligation, they may arise before, at the same time or later than the performance obligations. In fact, debt relations that include only protective obligations independent of the performance obligations may arise without the existence of performance obligations. Therefore, the existence of a valid contract is not required for mentioning protective obligations. In addition, this obligation covers not only the parties to the contract but also third parties within their sphere of influence and circle of trust. In this respect, it is the source not only of the positive breach of the contract but also of “culpa in contrahendo” and “a contract with a protective effect on a third party”. In this context, there is also a “positive breach of contract” in cases of non-compliance with protective obligations, such as a doctor bringing a disease to the house he went to for treatment, damaging household goods while repairing the house, or scratching a car while refuelling. (Serozan, Rona: Law of Obligations General Section Vol. III, 7th Edition Istanbul 2016, p. 249.)
In case of non-performance of the obligation or positive breach of contract, the debtor is obliged to compensate the damages incurred by the creditor due to the breach unless he proves that no fault can be attributed to him. The basis for this is the rule of honesty regulated by Article 2/1 of the TCC, as mentioned above. In fact, this issue is specifically regulated in Article 112 of the TOC No. 6098 as follows; “If the obligation is not performed at all or not properly, the debtor is obliged to compensate the damages of the creditor arising from this unless he proves that no fault can be attributed to him.” Therefore, it is obvious that in case of non-performance of the obligation other than defective impossibility of performance and default, the debtor is liable for the damages of the creditor due to the breach according to the provisions of the contract.
When the concrete incident is evaluated in the light of the explanations made; it is understood that a Sailing Motor Boat Sale Contract was made between the parties with the transaction numbered 11915 and dated 03.08.2007 of the 14th Notary Public of Izmir, that on the same date, an Exchange Contract and a Real Estate Sale Promise Contract were made between the plaintiff’s testator … and the defendant regarding the price of the boat, that following the contract, the boat in question was delivered to the plaintiff and the boat was brought to Alanya.
It is established within the scope of the file that the boat in question was taken by a person named … on 16.11.2007 while it was in the port of Alanya using the spare key of the boat. As a result of the criminal investigation initiated after the incident, in the file numbered 2008/467 E. of the Alanya 2nd Criminal Court of First Instance opened; it was determined that the defendant … purchased the boat from …, …’s attorney, with a contract dated 09.07.2007 in Germany, however, … cancelled the general power of attorney given to Veli on 06.07.2006 through a notary on 05.07.2007, and that the sale made by the attorney … to the defendant … after the cancellation of the power of attorney was invalid. Again, in the file numbered 2010/200 E. of the Izmir 2nd Civil Court of First Instance, filed by the defendant … against …’s heirs regarding the transfer of the real estate promised as the sale price of the boat in question, it was stated that the boat sale contract made to the plaintiff was valid.
In the declaration petitions submitted by the defendant to the Alanya 2nd Criminal Court of First Instance file numbered 2008/467 E., he states that he sold the boat to an Italian national before the sales contract in question was made, but a person named … came with two other people and gave him a photocopy of the contract stating that he rented the boat from … for the period between 22.05.2007 and 30.10.2007, and that they also threatened him about selling the boat to … and that he was beaten by these people, and that the Italian national who heard about the events terminated the contract, and thereupon he cancelled the power of attorney he gave to … through a notary on 05.07.2007, and that a person named … came again later but did not meet with him.
Therefore, it is understood that the defendant knew that a key to the boat was with the attorney … before the sales contract in question between the parties, that this key was not requested back when the power of attorney was cancelled, and that he should have known that the key could have been given to … in accordance with the lease agreement signed by his attorney …, who was shown to him by …. In this respect, as mentioned above, as a secondary obligation of the contract between the parties, the defendant should have given the spare key of the boat to the plaintiff or at least warned the plaintiff that he did not have the spare key. The defendant’s breach of these obligations shows that the contract was not properly performed. Because, while the boat in question was in the port of Alanya, it was taken away by a person named S. Paktan on 16.11.2007 using the spare key; the plaintiff was only able to find his boat on 24.02.2011. In addition, it has not been proven that no fault can be attributed to the defendant in not delivering the spare key to the plaintiff or not warning him in this regard.
In this respect, the court should consider that the defendant did not fulfill the secondary obligations of the sales contract and did not properly perform his debt, therefore causing the plaintiff damage, and also could not prove his faultlessness, and should go into the merits of the matter and make an assessment regarding the damages requested by the plaintiff, and if necessary, obtain an expert report and make a decision based on its results.
In that case, the decision to resist should be overturned due to the various justifications and reasons explained above.
CONCLUSION
For the reasons explained; The plaintiff’s attorney’s appeal objections are accepted and the decision to resist is REVERSED due to the different reasons and causes explained above,
Source: https://karararama.yargitay.gov.tr/