T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
2011/19-841
2012/144
14.3.2012
4721/m.684
2918/m.20
CASE : At the end of the trial due to the “Decommissioning of the objection” case between the parties; Tuzla 1.Given by the Civil Court of First Instance regarding the partial acceptance of the case on 01.05.2008 day and 2007/466 E.-2008/314 K. upon the request of the defendant’s attorney to examine the numbered decision, the Court of Cassation 19.The date of the Civil Chamber is 18.02.2010 and is 2009/3729 E.-2010/1695 K. with Ref No.;
(… The plaintiff’s attorney to the defendant the costs of the van of his client 25.000.00 YTL is sold the contract between the parties in the direction of the price to be paid in installments, then the Solid was prepared from the notary a sales agreement and the vehicle has been registered in the name of the defendant, the defendant’s total YTL YTL paying for your client, and you didn’t pay the balance 17.069.00 7.931.00 for a client attempted to collect a debt enforcement proceedings which are to appeal the defendant’s wrongful withdrawal of Appeal has prosecuted by claiming that demand and to deny hukmolunmas and executive compensation.
In his response, the defendant’s attorney stated that the execution file requesting the cancellation of the case should be reviewed in the Basement Courts to which he is attached, that his client paid all the fees that should be paid and received the vehicle unconditionally, unconditionally, without mortgage and without comment, that the seller “received the full price” in the strict sales contract, arguing that there is no subject of the case, and asked for compensation to be decided in their favor by rejecting the case.
Court, claim, defense, and according to the evidence collected for sale at the notary of the vehicle involved in the case, the solid completely received in the sales contract the seller for the plaintiff declared when the file is submitted to and the handwriting, which was made in the contract of sale between the parties car 14.729.00 portion of the cost of the vehicle YTL YTL in equal installments each installment payment to the defendant of 13 1.133.00 agreed in this agreement does not deny the signature, and thus the lack of payment of the instalment of the cost of the vehicle 7.931.00 TL 7, it was decided to partially accept the case on the grounds that the plaintiff did not default the defendant by withdrawing a warning before the follow-up, that the enforcement proceedings were challenged unfairly and intentionally, and the verdict was appealed by the defendant’s attorney.
In the strict sales contract dated Dec. 15.5.2006, which is available among the files, the plaintiff stated that he received the full sale price. The defendant also requested the dismissal of the case by arguing that he paid the sale price. In the face of this situation, the court should reject the case by observing the official sales contract, which was made later than the previous dated contract, stating that the sale price was received in full, while it was not correct to decide to accept the case on written grounds, and the provision had to be overturned … ),
The case was overturned on its grounds and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
H.G.K.after the NCA was examined and it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:
DECISION: The case is related to the request for cancellation of the appeal.
The request has been partially accepted by the court.
Upon the appeal of the defendant’s attorney, the decision was overturned by the Special Chamber on the grounds shown in the title section above.
The court resisted in its previous decision; it appealed the verdict.
A dispute between the parties, ordinary and official notary written protocol regarding the sale of the vehicle, held at the scope of the contract, according to the recipient of the defendant, the plaintiff agreed to the seller is paid at the point where the whole of the price of the car is collected.
Turkish Civil Code No. 4721 (TMK), following the ownership of immovable property 3. the department has regulated movable property. But unlike immovable property, the Law has established rules only on the subject of movable property, its acquisition and loss; it has not reserved any provisions on the scope and restrictions of this property.
Because the scope of movable property, the movable property and the goods that constitute the subject of TMK 684. according to its substance, it is limited to the things that make up its integral part. There is no reason to require another rule referral in this regard.
Movable property arising from the limitations of the law, however, those whose philosophy is based on public law (the law on firearms and knives in this context, Road Traffic Law), aside from the abuse of civil rights such as the right in terms of covering all kinds of limitation. (Oguzman K.,He’s Selic., Ozdemir S.O., Property Law, Filiz Bookstore, Istanbul, 2009, p. 586 et seq.)
One of the restrictions based on public law is the 2918 Numbered Highways Traffic Law No. 20.in paragraph (d) of the article: “all kinds of sales and transfers of registered vehicles will be made by notaries on the basis of the registration certificate or traffic registration records issued on behalf of the vehicle owner; all kinds of sales and transfers that are not made by notaries will be invalid; the sale and transfer transaction will be notified to the relevant traffic registration organization and the tax office within three working days to be processed in the register, and with this notification, the traffic registration transaction will be deemed to have been completed on behalf of the buyer,”it is stated.
Although a price is specified in the sales contracts made at a notary, it is known from practice that the sales price (insurance price) contained in the strict sales contract is automatically determined according to the vehicle model and age, and the declared price in the strict sales contract is reported by the parties so as not to contradict this price.
If this price is not shown correctly, and the sales price in the strict sales contract is shown to be lower or higher, it is important which price will be taken into account. It is also necessary to use the provisions of agreement in resolving disputes that will arise here.
As it is known, the parties to a contract, in order to Decoy third parties, hiding the real situation, agree on a matter that does not comply with their real will and is not valid among themselves; transactions made in this way are also called consensual transactions. (HGK, 9.2.2005 day 2005/1-19 E, 2005/42 K; 16.6.2010 day and 2010/1-281 E, 2010/323 K.).
In collusion, there is always a legal action that seemingly exists, but is never really requested by the parties, made solely for the purpose of Decrying third parties and deceiving them, and a collusion agreement that this transaction is not valid between them. In some cases, in addition to these two, there is one more secret transaction, which is in accordance with the real will of the parties (what the parties October actually want), but which they hide behind the apparent transaction for various reasons. Deciphering whether there is a secret transaction between the parties, two types of collusion are mentioned:
The parties between themselves they don’t want to do any valid legal process, even though third parties only between to look like there’s a legal process-making process if it is absolute (simple) muvazaa subject.
On the other hand, although there is a legal transaction between the parties in relative (mevsuf) collusion in accordance with their real will, this transaction is hidden by another legal transaction made against the outside that does not comply with their Decency.
This type of agreement may be in question in the nature of a contract, in the person, subject and conditions of the parties.
In the case of agreement on the subject and conditions of a contract, the apparent legal action is in accordance with the real will of the parties. However, some of the terms of the apparent transaction and a certain part of its subject matter are Deciphered differently from the secret transaction between them. In this agreement, while the parties change some of the conditions of the apparent agreement, the entire agreement, that is, not its nature, but some of its conditions do not comply with the confidential agreement. For example, in order to pay a smaller amount of tax, the sale value of the real estate in the title deed is shown to be low, in order to obtain an excess profit if it is used to prevent the use of the right to current, there is such a consensus on the overestimation of the sale price in the apparent (official) contract. As explained, the parties seriously want to make the apparent contract and agree on its quality (quality). However, here the price is shown as less or more than the real price. In other words, only the price of the apparent contract is changed. The agreement is not in its entirety, but in part (in one element) of the agreement (Özkaya E., Cases of Faithful Transaction and Collusion, Şekçin, Ankara 2011, p.173 ).
No formal conditions are required in the agreement agreement. Can be written, oral, or written. Even if the apparent contract depends on the form, the agreement agreement does not need to be made in writing or formally. If the apparent contract depends on the form, the rule of proving the agreement with written evidence is a rule that is sought not for the validity of the written agreement of the agreement, but in order to prove it. (YIBK 5.2.1947 , 1945/20, 1947/6) 289 of the HMUK and 13 of the BK of the party who claims otherwise than a seemingly written contract. it is obligatory for him to prove his claim with written evidence in accordance with the articles. According to the agreement agreement, which modifies or invalidates the apparent agreement, it is necessary to have it written in order for it to gain the power of proof in accordance with the explicit provisions of the mentioned laws. For example; vehicle sales depend on the shape. Although the validity of the agreement to be drawn up for the transfer agreement depending on the apparent form does not depend on the form, its proof is only possible with written evidence. (YIBK 5.2.1947, 1945/20-1947/6)
When it comes to the concrete event:
The owner of the van where the plaintiff resides, the defendant 25.000,00 YTL sold at cost, 10.271,00 TL 31.1.2006 the remaining amount in cash to be paid in installments until the date was agreed on, with solid sales contract of the vehicle has been registered in the name of the defendant, the defendant in this context, 17.069,00 TL paid, the balance of the installment amount 7.931 7,00 TL upon failure to pay, against the defendant in the basement 2. Claiming that the Enforcement Directorate was conducting enforcement proceedings with the file numbered 2006/1631, the prosecution stopped as a result of the defendant’s objection, he requested that a decision be made on the cancellation of his appeal, the continuation of enforcement proceedings, 40% execution denial compensation.
Externally is held as shown between the parties pursuant to this protocol with the protocol and the sales price 25.000 TL 10.271 the defendant’s hand, undated,00 TL and through the bank 6.798,00 TL a total of 17.069,00 TL dated 15.5.2006 of the sales price and pays a bill of sale on the official 16.387,00 TL is shown as cekismesiz.
In addition, the defendant did not make any objection to the fact that such a protocol was not made.
The dispute is at the point of whether 7.931,00 TL has been paid paid.
As is known, the fact that the sale price is indicated as TL 16,387.00 in the notary sales contract; the minimum insurance price is based on a price determined by the model and age of the vehicle during the notary sale; the inclusion of this price in the notary deed will not cause the contract between the parties to be invalid. Dec.
The parties seriously want to conclude the apparent contract and agree on its nature. Only the price of the contract is changed. Here, the agreement was realized not in the entire contract, but in a part of it, in the price element.
As explained above, if the transfer of the movable registered in the registry depends on the form, the validity of the agreement to be drawn up for the transfer agreement depending on the apparent form does not depend on the form; however, its proof will be possible with written evidence.
Since the protocol put forward by the plaintiff was not denied by the defendant, the plaintiff proved that the vehicle was sold at a price of TL 25,000.00 with ordinary written evidence, and that they received TL 17,069.00 by hand and through the bank. Thus, since he has proved the agreement on the price and that the sale price is 25,000.00 TL, the burden of proof that the entire price in the ordinary written contract has been paid, that is, the remaining 7,931.00 TL has been paid, is now on the defendant.
Moreover, the price between the parties in the protocol 25.000,00 TL be agreed that a portion of the payments will be made to this protocol to the lack of the defence of the defendant in the face of the sales price in the sales contract notary 16.387 it is solid,00 TL is not the real price, the sales price is the price of the defendant’s challenged as mentioned in the protocol, the respondent is also evident in the adoption.
It should be noted immediately that; It is not possible to accept that the price written in the notarial sales contract has been received by the plaintiff. Because, if it is accepted that TL 16,387.00, the price in the sales contract, has been received by the plaintiff, it will be seen that the total price even exceeds the price in the ordinary written sales contract when the hand-delivered price and the installments paid through the bank and the price written on the notary sales contract are taken into account. For this reason, the notary should not accept that the price shown in the sales contract was received by the plaintiff, it should be accepted that the sale price is shown as 16.387,00 TL is a price determined by the system, except only by the will of the parties.
In that case, the transaction is carried out in accordance with the 20th article of the Traffic Law No. 2918 on the transfer of movable property.according to the article, it has gained validity. The fact that the buyer has not fully fulfilled the debt arising from the price cannot change the legal result arising from the official contract. Failure to pay a part of the actual price paid in the ordinary written deed will give the seller the right to request the collection of the unpaid part of the price. The burden of proof that he paid this price is on the defendant, as explained above.
Therefore, the decision to resist, pointing to the same considerations, is appropriate and appropriate.
However, since the defendant’s attorney’s other appeals on the merits of the case, especially the price awarded, have not been examined by the Special Chamber, the file should be sent to the Special Chamber for examination in this direction.
CONCLUSION: The decision to resist for the reasons described above is appropriate; the defendant’s attorney, in particular, the price ruled, and the other appeals on the merits of the work for the examination of the appeal of the file 19. To be sent to the Legal Department, 14.03.2012
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