(Decision of the General Assembly of Civil Chambers of the Court of Cassation dated 1.12.2010 and numbered 2010/13-593 E., 2010/623 K.)
– There is Liability Arising from Contract Negotiations (Culpa In Contrahendo)
– Contract Law Rules apply, not Tort Law Rules
– The Consumer Court, not the Civil Court of First Instance, has jurisdiction.
Decision made during the period of Law No. 4077 on Consumer Protection
SUBJECT OF DISPUTE
The plaintiff claimed that he went to the Kozyatağı branch of the defendant company to do some shopping, a parcel fell on his head from a high shelf and he suffered a head injury, and requested that a moral compensation of 20,000 YTL be collected from the defendant, with the preservation of his rights regarding the excess.
The defendant requested that the case be dismissed.
The court partially accepted the case and decided to collect 7,500 YTL non-pecuniary damages from the defendant; the defendant appealed the decision.
The 13th Civil Chamber of the Supreme Court of Appeals, after the purpose of the law was explained in Article 1 titled Purpose of the Law No. 4077 on the Protection of Consumers, which was amended by Law No. 4822, the provision “This law covers all kinds of consumer transactions in which the consumer is one of the parties in the goods and services markets for the purposes specified in its first article” was included in Article 2 titled Scope. In Article 3 of the law, goods; refers to movable goods that are the subject of shopping, immovable properties for residential and holiday purposes, and software, sound, images and similar intangible goods prepared for use in an electronic environment, and service; refers to all kinds of activities other than providing goods in return for a fee or benefit. Seller; includes real or legal persons, including public legal entities, who offer goods to the consumer within the scope of their commercial or professional activities. Consumer, on the other hand, is defined as a real or legal person who acquires, uses or benefits from a good or service for non-commercial or non-professional purposes.
Article 23 of Law No. 4077 stipulates that all kinds of disputes regarding the implementation of this law will be heard in consumer courts. Since the dispute between the parties falls within the scope of the Law on Consumer Protection, the Consumer Court is authorized to hear the case. Regulations regarding the duty are related to public order and are observed ex officio at every stage of the trial, even if the parties do not put it forward. In matters regarding the duty, there is no vested right. In this case, while the court should have given a decision of lack of jurisdiction, it is against the procedure and law to make a decision in writing,
The other appeals were overturned without being examined based on the reason for the reversal and the file was returned to its place, and at the end of the retrial, the court insisted on the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF CIVIL CHAMBERS OF THE COURT OF CASSATION
The dispute brought before the General Assembly of Law with a decision of resistance is concentrated on whether the duty to hear the case belongs to the Civil Court of First Instance or the Consumer Court, depending on the content and scope of the request and the title of the parties.
In order to resolve the dispute, it is useful to first focus on the sources of liability that create debts:
It has become almost impossible to find solutions to economic events and problems that have emerged as a result of the rapid development of social life within the classical sources of liability that create debts, such as tort, contract and unjust enrichment, and to apply the same elements to these new events and problems. Towards the end of the 19th century, the doctrine understood that it was not possible to remain indifferent to such situations for which the laws could not provide a solution, and it set out to determine new legal institutions and types of liability that were different in essence and nature (Süleyman Yalman, Responsibility Originating from Contract Negotiations in Turkish-Swiss Law, Ankara 2006, p. 37).
To put it in general terms, the responsibility arising from contract negotiations (culpa in contrahendo), which is one of these newly determined types of responsibility, is the responsibility that occurs as a result of the violation of the trust relationship that arises between one of the parties to the other or the persons under its protection in accordance with the rule of good faith (MK. art. 2) during the contract negotiations (Fikret Eren, Law of Obligations General Provisions, Vol. III, Ankara 1990, p. 1083.; İlhan Ulusan, Culpa in Contrahendo Üstüne, Gift in Memory of Prof. Dr. Ümit Yaşar Doğanay, Istanbul 1982, p. 287). In other words, it is the responsibility for the damages caused by one of the parties to the other as a result of violating the rule of honesty in contract negotiations (Süleyman Yalman, op. cit., p. 38).
Because, with the start of contract negotiations, a trust relationship based on the rule of honesty is established between the parties, and this relationship also includes protection obligations. Therefore, in contract negotiations, each party or their assistants must show the necessary care and diligence to prevent harm to the person and property of the other party or the persons under their protection, and must comply with the protection obligations. Because, protection obligations include not harming other person and property values that are not in the interest of performance. Violation of pre-contract protection obligations gives rise to liability arising from contract negotiations (Ayfer Kutlu Surgurbey, Unauthorized Representation, Especially Culpa in Contrahendo -Flaw in the Discussion of the Contract and Negative Damage, June 1988, p. 103 et seq.; Fikret Eren, ibid., pp. 1086, 1091).
On the other hand, when there is a legal relationship between the parties, it is not possible to say that the violation of this is a tort. Because in a tort, there is no previously established legal relationship between the parties at the stage when the damaging behavior is committed. For this reason, a breach of obligation in contract negotiations cannot be considered a tort. It would be more appropriate to apply the contract provisions compared to the breach of trust relationship that emerges through contract negotiations (Süleyman Yalman, ibid., p. 83).
Liability arising from contract negotiations includes not only liability for damages (negative damages) arising from trust in the validity of the contract, but also liability arising from the breach of the obligation not to harm the person or property of the other party, which stems from the “trust principle” based on the rules of honesty in Article 2, I of the Civil Code. This legal idea has been expressed in Comparative Law, in the decisions of the German Imperial Court and the Federal Court, known as “shop decisions”.
The German Imperial Court, with its decision dated 7 December 1911, known as the “oilcloth ball decision”, accepted that not only the obligations of notification and disclosure but also the obligations of protecting the life and property (person and property) of the other party arise from the negotiation of a contract. Therefore, it ruled that if a shop assistant, while showing the oilcloth balls to a woman who wanted to buy a floor, drops one of them on her and injures her, the shop owner is liable according to § 278 of the German Civil Code, which is the equivalent of Article 100 of the Turkish Code of Obligations, rather than according to § 831 of the German Civil Code, which is the equivalent of Article 55 of the Turkish Code of Obligations.
In the “banana peel decision” of September 26, 1961, which was also one of the aforementioned “shop decisions”, the German Federal Court went even further in this direction and accepted that the shopkeeper was liable for breach of a general duty of care to ensure the safety of people entering the shop because a person who entered a large store slipped and fell and was injured when he entered the “phase of preparation for the transactional relations” before the contract negotiations began.
According to the “transactional contact” theory, if a person “engages in transactional relations preparation” before starting the negotiation of the contract, it is accepted that the parties will have an obligation to act in a way that will prevent them from harming each other’s persons and property. The engagement in transactional relations preparation may occur even if this preparation has not yet reached the stage of “negotiating the contract”. For example, the above-mentioned “banana peel decision” of the German Federal Court is also in line with this view, as is the case when a person enters a store as a “potential customer” or looks for a seat in a restaurant even if he does not have a definite purchase intention (Larenz, Culpa in contrahendo, Verkehrssicherungspflicht und “Sozialer Kontakt”, MND 1954, p. 515 and later, Ayfer Kutlu Sungurbey, ibid., p. 103-109).
Similarly, according to the dominant view in Swiss-Turkish law; a legal relationship, or more accurately a trust relationship, is established between the parties by starting to negotiate the contract. From this trust relationship, a number of due diligence obligations arise, such as looking out for the interests of the other party to a certain extent, and thus, notification and disclosure (not giving false confidence, not disappointing confidence) in accordance with the rules of honesty in Article 2 of the Civil Code. These due diligence obligations, unlike the obligation of performance arising from the contract, are in the nature of a duty of conduct arising from the law. Violation of these obligations of conduct is similar to a breach of a contractual obligation. Therefore, the rules of breach of a contractual obligation are applied to the breach of these obligations of conduct during the negotiation of the contract by analogy (Ayfer Kutlu Sungurbey, ibid., p. 117-118).
A vegetable leaf was included in a decision similar to the banana peel decision of the German Federal Court in 1976, in which a fourteen-year-old girl slipped on a vegetable leaf on the floor in the supermarket where she had come to help her mother carry the goods, fell to the ground and suffered an injury that required surgery on her right knee. The damage suffered was remedied based on the principle of liability arising from contract negotiations. The German Federal Court extended its case law to the field of protection of third parties in these cases. In all three cases, the legal relationship that prepares a contract and the right to personal security protected by contract, entering the store for the purpose of making a contract, was the starting point. In fact, the fact that German legal practice accepts liability arising from contract negotiations in these cases is that the tort rules in the German Civil Code cannot produce satisfactory results in such cases. Furthermore, the most crucial point is that liability arising from contract negotiations has been used to relieve the injured party from the burden of proof and to benefit from the extension of the limitation period.
Because the basis of the liability arising from the contract negotiations on the provisions of the contract or tort is important in terms of limitation, distribution of the burden of proof and liability of the assistants. Because in contractual liability, unless otherwise provided in the law, the limitation period is 10 years (TCK, Art. 125). The plaintiff is not obliged to prove fault (TCK, Art. 96) and in liability due to assistants, the employer is deprived of the opportunity to bring evidence of salvation (TCK, Art. 100). In tort liability, the limitation period is 1 year (TCK, Art. 60) and the plaintiff must prove that the defendant is at fault (TCK, Art. 42) and in liability due to assistants, the employer has the opportunity to bring evidence of salvation (TCK, Art. 59) (Süleyman Yalman, ibid., p. 62, 70).
In these cases, regardless of whether a contract is established or not, or whether it is void or valid, it is now indisputable according to today’s dominant thought that there is liability arising from contract negotiations.
As stated above, when a concrete event is evaluated in terms of sources of liability that create a debt; there should be no room for doubt and hesitation when the event should be viewed with the rules of “liability arising from contract negotiations”.
In reality, a contract is a process. It is not a legal transaction that is established and realized all of a sudden. Before the contract is established, the parties negotiate on the content, terms, rights and obligations of the contract; these negotiations may last short or long. A legal relationship is established between the negotiators with the start of the negotiations. This relationship is a trust relationship similar to a contract. The trust relationship is based on the rule of honesty regulated in Article 2/1 of the Civil Code. Accordingly, during the negotiations, the negotiators must inform each other about the content and terms of the contract, act in accordance with the rule of honesty, show the necessary care not to harm each other’s personal and property values, and comply with their protection obligations. If the negotiators act contrary to these obligations by fault and violate the trust relationship established between them with the start of the negotiations, they are responsible for the damages arising from this (Fikret Eren, ibid., p. 1084, 306 ff., İlhan Ulusan, ibid., p. 286).
Therefore, it is certain that the dispute arising from the contract negotiations should be resolved within the framework of contract law, not according to the rules of tort. Because the request to show the plaintiff the items he wants to buy in the store and the acceptance of this request constitutes a sale, and thus, it is intended to create a result in the nature of a legal transaction. This, unlike the transactions made just for the sake of it, please and courtesy, is not merely an action-related event, but has created a legal relationship between the parties that is similar to a contract that prepares the sale; and this relationship has brought obligations regarding the legal transaction in terms of the seller and the buyer being obliged to show due care for the health and property of the other party during the showing and examination of the goods. Therefore, the dispute should be resolved within the framework of contract law.
As for the evaluation of the incident in accordance with the provisions of the Law on Consumer Protection;
The concept of consumer is of great importance in terms of creating policies aimed at protecting the consumer, as it is the basic starting point in consumer protection.
Indeed, the idea that the consumer should be protected stems primarily from the fact that the consumer is in a more disadvantageous position against those who provide goods and services.
To put it more clearly, in a social and legal relationship in which the consumer is involved, the fact that he is the weaker side of the relationship in economic and social terms and is in an inexperienced position in economic and legal terms has formed the focal point of the idea of consumer protection.
According to the Law on Consumer Protection, a consumer is defined as a real or legal person who purchases and ultimately uses or consumes a good or service for specific purposes. As can be understood from this definition, while defining the concept of consumer, the Legislator has indicated that a consumer can be not only a real person but also a legal person, in addition to the criteria of purchasing and ultimately using a good or service for specific purposes, and has also evaluated the use of services in addition to the purchase of the good within the scope of consumption (Hasan Seçkin Ozanoğlu, M. Kemal Oğuzman Armağanı, Comparative Law and the Area of Application of Regulations Protecting the Consumer in Terms of the Law on Consumer Protection, İstanbul 2000, pp. 666-667).
On the other hand, in Article 1 of the Law No. 4077 on the Protection of Consumers, amended by Law No. 4822, it is explained that the purpose of this law is to take measures to protect, enlighten, educate, compensate for damages, and protect consumers from environmental hazards in accordance with the public interest, and to encourage consumers to take initiatives to protect themselves and to encourage voluntary organizations in the formation of policies in this regard; and in Article 2 titled “Scope”, it is stated that “This law covers all kinds of consumer transactions in which the consumer is one of the parties in the goods and services markets for the purposes specified in its first article.”
In subparagraph (e) of Article 3 of the same Law, which was amended by Law No. 4822, consumer is defined as “Real persons or legal entities who acquire, use or benefit from a good or service for non-commercial or non-professional purposes”; in subparagraph (f), seller is defined as “Real persons or legal entities who offer goods to the consumer within the scope of their commercial or professional activities, including public legal entities”; in subparagraph (g), provider is defined as “Real persons or legal entities who offer services to the consumer within the scope of their commercial or professional activities, including public legal entities”; in subparagraph (h), “Consumer transaction; any legal transaction between the consumer and the seller-provider in the goods or service markets”. This regulation is the reflection of the liability arising from contract negotiations (culpa in contrahendo) in consumer law.
Again, Article 23 of the same Law stipulates that all disputes regarding the implementation of this Law will be heard in consumer courts.
In order for a legal transaction to be accepted as falling within the scope of Law No. 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 specific dispute, it is understood that the plaintiff was injured when a parcel fell from the shelf onto his head while he was walking between the shelves of the defendant’s store for the purpose of shopping, and he filed the lawsuit at hand thereupon.
As stated above, a contract is a process and is not a legal transaction that is established and realized all at once. Before the contract is established, the parties negotiate on the content, terms, rights and obligations of the contract; these negotiations may last for a short or long time. With the commencement of these negotiations, a contract-like trust relationship arises between the parties, in other words, the obligations to show due care and protection in order not to harm each other’s personal and property values. In this context, the request to show the plaintiff the items he wants to buy in the store and the acceptance of this request are in the nature of an offer-acceptance and are intended to create a result in the nature of a legal transaction. At this stage, the defendant must compensate for this damage caused to the plaintiff’s physical integrity by the defendant or his assistants in accordance with the liability arising from the contract negotiations.
As for the assessment of the incident in terms of duty; since one of the parties to the contract is a consumer, the other is a seller and the dispute is related to a consumer transaction, it is clear that the dispute between the parties falls within the scope of Law No. 4077. Since it is accepted that the dispute between the parties falls within the scope of the Law on Consumer Protection, the duty to hear the case belongs to the Consumer Court. The regulations regarding the duty of the courts in our procedural law are related to public order and should be observed ex officio at every stage of the trial, even if the parties do not put it forward. In addition, there is no vested right in matters related to duty.
In addition, it is more advantageous for the consumer to have a trial in a consumer court. Because, the simple trial procedure is applied (HUMK art. 507-511) and the lawsuits to be filed by consumers, consumer organizations and the Ministry are exempt from all kinds of fees and charges (TKHK art. 23/3).
In this case; while the Local Court should have taken into consideration all these issues explained and complied with the Special Chamber annulment decision adopted by the General Assembly of Law and accepted that the Consumer Court has the duty to hear the case, and decided on lack of jurisdiction; resisting the previous decision regarding its jurisdiction as a result of erroneous determination and evaluation is against procedure and law.
The decision to resist should therefore be overturned.
RESULT
It was unanimously decided on 01.12.2010 that the appeal objections of the defendant’s attorney were accepted, the decision of resistance was REVERSED in accordance with the Special Chamber’s reversal decision and Article 429 of the Code of Civil Procedure due to the reasons stated above, that there was no room for examination of other appeal objections for the time being due to the reason for reversal, and that the advance appeal fee be returned to the defendant upon request.
Note: In a similar dispute, while the plaintiffs were walking among the shelves of the defendant’s store for shopping, the mannequin in the shape of a half-human bust placed on the shelves on the inner walls of the store fell on the other plaintiff, minor İ., who was under the custody of plaintiff Ü., and was injured. Decision of the General Assembly of Civil Chambers of the Court of Cassation dated 13.2.2013 and numbered 2012/13-1220 E., 2013/239 K.)
Source: https://karararama.yargitay.gov.tr/