TC
judgment
GENERAL ASSEMBLY OF THE LAW
E.2008/6-369
K.2008/394
T.28.5.2008
– ACTIONS BASED ON THE EVICTION COMMITMENT (CANCELLATION OF THE APPEAL/ EVICTION – THE DEFENDANT DID NOT KNOW THAT THE Decal WAS SIGNED AND THE CASE SHOULD BE ACCEPTED BECAUSE THERE IS NO AGREEMENT TO BE FILLED IN LATER BETWEEN THE PARTIES)
-FILLING IN A BLANK DOCUMENT CONTRARY TO THE CONTRACT (THE DEFENDANT DID NOT KNOW THAT THE DOCUMENT WAS SIGNED BLANK AND THERE WAS NO CONTRACT BETWEEN THE PARTIES FOR FILLING IN THE DOCUMENT LATER, SO THE CASE BASED ON THE Decoupling COMMITMENT SHOULD BE ACCEPTED)
– CANCELLATION OF THE APPEAL – LIQUIDATION (THE DEFENDANT IS NOT AWARE THAT THE DOCUMENT WAS SIGNED BLANK AND THERE IS NO CONTRACT TO BE FILLED IN LATER BETWEEN THE PARTIES, SO THE CASE SHOULD BE ACCEPTED) Decertification (THE DEFENDANT IS NOT AWARE THAT THE DOCUMENT WAS SIGNED BLANK AND THERE IS NO CONTRACT TO BE FILLED IN LATER)
– WRITTEN COMMITMENT DOCUMENT (NEITHER THE DATE OF ISSUE NOR THE BEHAVIOR IN WHICH ITS CONTENTS WERE FILLED OUT LATER WERE APPROPRIATELY EXCLUDED BY THE DEFENDANT – IT IS NECESSARY TO ACCEPT THE REQUEST FOR EVACUATION OF THE LEASED PROPERTY BY CANCELING THE OBJECTION BASED ON THE COMMITMENT COMMITMENT) 818 /M .31 1086/M .352 6570/M.7/A
SUMMARY :
The case is related to the cancellation of the follow-up objection based on the eviction commitment and the eviction of the lease agreement. After the lease agreement, a written commitment document was issued, including the phrase “where we are as a tenant”; neither the date of issuance nor the defense that its contents were filled in later could be duly proved by the defendant.
Although it was suggested in the discussions that the blank document was filled out contrary to the contract and the defendant could rely on sworn evidence, the majority disagreed with this view because, contrary to this view, the defendant’s defense is that he did not know that the document was signed blank, there was no agreement between the parties to Decipher it later, and contrary to this view, the defendant did not agree with this view. the document was signed fraudulently. In this case, since there are no irregularities in the proceedings initiated and the case filed, it is necessary to accept the case and decide on the eviction of the tenant due to the valid eviction commitment.
CASE :
At the end of the trial opened between the parties due to the case of “cancellation of the appeal-eviction”; the plaintiff’s lawyer, the Supreme Court Dec. 6. Izmir by the decision of the Legal Department 2. Upon the request of examining the decision of the Civil Court of Peace dated 28.12.2006 and numbered 2006/1545-1936 dated 13.05.2007 and numbered 2007/3587-6905;
( … The dispute is related to the request for cancellation of the objection to the enforcement proceedings initiated based on the eviction commitment. It was decided to reject the request by the court and the decision was appealed by the plaintiff’s attorney.
In the petition, the plaintiff’s attorney requested the cancellation of the unfair objection to the enforcement proceedings initiated on 12.6.2006 based on the commitment letter dated 20.8.2004 and dated 5.6.2006. The defendant argued that as a result of fraud, they signed the empty discharge commitment on the same date as the contract, and the other party was offered an oath on this issue. Upon the plaintiff’s refusal to take the oath, the court decided to reject the request based on the evidence of the final oath.
In the eviction commitment letter dated 20.8.2004, which is the basis for the decision, it is understood that the commitment letter was issued while the rental relationship was continuing. Although the tenant argues that he signed a blank piece of paper for the purpose of the eviction commitment and that it was filled out later, this cannot be credited. Anyone who signs on a blank piece of paper has to suffer the consequences of this. This is the established practice of our Chamber, the General Assembly of the Supreme Court of Appeals dated 12.12.1990 and 1990/6 E-1990/628 K. decision No., dated 1.7.1992 and E. it is a numbered decision. 357-K.422 and dated 17.1.1999 and 1999/6-28-10 numbered decision.
The defendant is subject to Article 31 of the Code of Obligations. since he did not exercise his legal right specified in the article and gave up his defense that he was signed fraudulently, it must be accepted that the blank signed release declaration is valid. Since the plaintiff relies on a written document, the defendant cannot swear in response to it.
Therefore, the plaintiff’s failure to fulfill the oath given does not result against him. Because the plaintiff is considered authorized to fill in the blank paper as he wishes by signing it. On the other hand, since the defense of the accused is based on the allegation of forgery, 352 of the Code of Civil Procedure. according to the provisions of the article, an oath cannot be taken on this issue. Since there are no irregularities in the filed case and the filed case, it is not correct to decide to reject the request on written grounds, while it should be decided to accept the case and evict the tenant due to the valid eviction commitment, and the decision should be overturned…),
When the case was disrupted, the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
The decision of the General Assembly of Civil Law was examined, and after it was understood that the decision to resist was objected to within the time limit and the documents in the file were read, its necessity was discussed:
DECISION:
The case is related to the cancellation of the follow-up appeal based on the eviction commitment and the eviction of the tenant.
with the petition dated 29.08.2006, the lawyer of the plaintiff lessor requested the cancellation of the appeal and the eviction of the immovable property, arguing that the defendant tenant unfairly objected to the case based on the eviction commitment.
The defendant argued that he had fraudulently made himself sign the contract with the release undertaking as a blank, that it was not a product of free will, that the release date was written later, and that the document was invalid.
Court brought the enforcement file; the file contained the lease agreement, the commitment letter, the evidence of the parties; the defendant was reminded of the plaintiff’s right to swear; the plaintiff stated that they did not accept the proposed oath because the case was fixed according to the written document, and it was decided to dismiss the case.
The decision was upheld by the Special Chamber upon the objection of the plaintiff’s lawyer; since the defendant did not exercise his legal right and gave up the defense that he was signed fraudulently, it must be accepted that the blank signed release undertaking is valid, the defendant cannot swear because the plaintiff is based on a written document, so the plaintiff’s failure to take the oath presented to him will not result in his disadvantage, because the plaintiff will be deemed authorized to fill it out as he wishes by signing the blank paper, on the other hand, the plaintiff will be authorized to fill it out as he wishes.
The defense of the accused is HUMK’s 352. because it is based on an allegation of forgery in accordance with the article. On the other hand, since the defendant’s defense is ultimately based on the allegation of forgery, Article 352 of the Code of Civil Procedure. According to the provision of the article, since there are no irregularities in the trial, an oath cannot be taken on this issue. Initiated and filed a lawsuit, acceptance of the lawsuit and decision to evict the tenant due to the valid eviction commitment; the court resisted the previous decision.
The plaintiff’s/lessor’s lawyer appeals the decision.
Existence of a written contract and commitment between the parties is not a matter of dispute; the signature under the letter of the release commitment belongs to the defendant company’s manager; the defendant submitted an oath stating that they would not press charges for fraud; although Decriminalization was filed later, it resulted in non-prosecution because the deadline had passed.
The defendant bases his defense on the fact that the commitment, which is the basis of the trial and the case, was fraudulently made to sign a blank when the contract was signed and then filled out.
Dispute that came to the General Assembly of Law through resistance; the defense that the eviction commitment letter, whose signature was not challenged, was fraudulently made to the defendant to sign the lease agreement and the lease agreement blank and then filled out, and the claim that the plaintiff did not fulfill his oath, the defendant’s offer will affect the result to be achieved.
Firstly, it should be noted that there is no dispute that it is impossible to prove the claim that the upper part of a blank signed document was filled in contrary to the agreement between the parties; however, it must be proved with written evidence, if there is no written evidence, sworn evidence can be mentioned provided that it is based Dec. This opinion is settled in judicial practice and contains a special assessment and conclusion for disputes arising in relation to documents that the parties have agreed on how to fill out and that one party must sign blank and provide to the other party. it will be filled out in accordance with this agreement.
On the other hand, the defendant’s objection to the enforcement file in this case and his defense in the case differ from the situation described above; it was claimed that the eviction undertaking and the eviction undertaking letter subject to the lawsuit were signed blank and not given to the other party, but on the contrary, the defendant fraudulently signed a blank document when signing the lease agreement and then gave it to the other party. he stated that it was filled out as a Decoupling commitment and that there was no agreement between the parties on this issue.
As a result, this defense of the accused is based on the claim of forgery; 352 of the Code of Civil Procedure No. 1086. according to the article, it is not possible to swear on this subject. The defendant did not present any evidence to prove the forgery allegation, stating that he would not press charges against this allegation during the trial, stating that it was based on sworn evidence; although he later filed a criminal complaint, this application resulted in lack of follow-up.
Since the sworn evidence, which is the only evidence on which the defendant relies in the claim of forgery, cannot be accepted, failure to fulfill this oath will not have any consequences against the plaintiff.
In this case, after the lease agreement dated 01.05.2004 and 15.04.2004, the written commitment document containing the phrase “where we are as a tenant” was issued on 20.08.2004; neither the date of issue nor the defense that its contents were filled in later could be duly proved by the defendant.
Although it was suggested in the negotiations that the blank document was filled in contrary to the contract and that the defendant could rely on sworn evidence, the majority disagreed with this view because the defendant’s defense was contrary to this view. , the accused did not know that the document was signed blank, there was no agreement between the parties to fill it out later, and he did not know that the document was signed by Deceptions.
In this case; Since there are no irregularities in the filed case and the filed case, it should be decided to accept the case and evict the tenant due to the valid eviction commitment, while the decision to reject the request is contrary to procedure and the law, the decision should be overturned.
Therefore, the decision to resist must be reversed.
CONCLUSION:
At the second meeting held on 28.05.2008 with the acceptance of the appeals of the plaintiff/ lessor’s attorney, Civil Code 429. according to the article, it was unanimously decided to overturn the decision to resist. According to the reasons mentioned above and the procedural procedure in the decision of the Special Chamber to overturn and that the preliminary appeal fee should be refunded if requested.
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