TC
Supreme
GENERAL ASSEMBLY OF LAW
2011/19-841
2012/144
14.3.2012
4721/m.684
2918/e.20
ACTION: At the end of the trial held between the parties for the ”Cancellation of the objection” case; Tu Decla issued by the Court of First Instance on the partial acceptance of the case on 1.01.05.2008 day and 2007/466 E. numbered is the Tu Decla No. 2008/314K issued upon the request of the Court of Cassation to review the decision No. 19.-Law Office of 18.02.2010 day and 2009/3729 E. numbered-2010/1695 K. numbered;
Paying payable in installments between the parties (…The plaintiff’s attorney stated that TRY 25.000,00, the cost of his client’s van, was sold to the defendant by making a contract, then a sales contract was arranged from a notary and the vehicle was registered on behalf of the defendant, the defendant paid the total TRY on behalf of your client, the balance was 17.069,00 TL, he tried to collect the debt, which was 7.931,00 TL on behalf of your client, the defendant unfairly withdrew from the enforcement proceedings, the objection to the withdrawal of the defendant from the enforcement proceedings unjustly.)……………….Dec………………. he filed a lawsuit claiming that he had applied for an appeal and that this request had been rejected and enforcement proceedings had been taken.
The defendant’s attorney, on the other hand, argued that the case filed with the request for cancellation of the case should be considered connected to the enforcement office in the basement where the file is located, the client should pay all fees on time, unconditionally, unconditionally and without mortgage, the sales contract with the seller in the sales contract “the price was completely taken”, the minutes that constitute the subject of the case should not be decided in his favor by rejecting the case.
Pay payable to the defendant in equal installments of the amount of TL 14,729.00 of the vehicle in full in the sales contract of the seller on behalf of the plaintiff, declared in the delivery of the file and handwritten in the sales contract between the parties, pay 13 TL to the defendant in each installment, do not deny the signature agreed in this contract and thus do not install the vehicle price of TL 7,931.00, according to the evidence collected for the sale of the vehicle subject to the lawsuit, the plaintiff before the follow-up to the defendant’s payment in equal installments of the amount of TL 14,729.00 of the cost of the vehicle in handwriting,
Decried in the sales contract between the parties that he has not defaulted by drawing a warning, the executive proceeding deliberately unfair and are challenged on the grounds that the case has been decided upon the adoption of the partial attorney and the judge was appealed by the defendant.
In the sales contract dated 15.12.2006 available in the file, the plaintiff stated that he had received the sale price in full. The defendant also requested the dismissal of the case by claiming that he had paid the sale price. In the face of this situation, it was not appropriate for the court to decide to accept the case with a written justification, and the provision had to be overturned, and in accordance with the official sales contract made later, the case had to be rejected due to the signing of the previous contract and the full receipt of the sale price …),
As a result of the re-trial, the court resisted by overturning the previous decision on the merits and the file was returned to its place.
After it was understood that the decision to resist was reviewed by the HGKNC and appealed within the time limit, and the documents in the file were read, the following requirement was discussed:
DECISION : The case relates to the request for cancellation of the application for appeal.
The request was 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 above.
The court had resisted in its previous decision and appealed the decision.
The dispute between the parties relating to the sale of the vehicle is approved pursuant to the contract the written records of the ordinary and official documents, the defendant is the plaintiff the payment of the buyer paid to the seller for the vehicle shall be concluded at the point where entire.
4721) Turkish civil law (TMK), 3. in the article are arranged movable goods. However, as different from immovable property, the law of the immovable property subject only to the rules on acquisition and loss of property; it has not been about the limitations and scope of any provision.
Because the scope of movable goods, movable goods and the goods constituting the subject of TMK 684 is limited to the things that form an integral part of it, according to the article. There is no reason why any other rule should be presented in this regard.
Movable property is subject to restrictions arising from restrictions arising from the law, but those whose philosophy is based on public law (in this context, the firearms and knives law, the Highway Traffic Law) are subject to restrictions in terms of covering all kinds of rights, such as abuse of civil rights. (Oguzman K., Selici D., Özdemir SO, Property Law, Filiz Kitabevi, Istanbul, 2009, p. 586 et seq.)
20 Of the Highway Traffic Law No. 2918, which is one of the restrictions based on public law. in paragraph (d) of article: “All kinds of sales and transfers of registered vehicles are made by notaries based on the registration certificate issued on behalf of the vehicle owner or traffic registration records; all kinds of sales and transfers not made by notaries are invalid; the sale and transfer transaction will be notified to the relevant traffic registration organization and tax office within three business days for registration and with this notification, the traffic registration transaction will be deemed to have been made on behalf of the buyer” is attached to the provision.
Although a price is specified in the sales contracts concluded before a notary, as is known in practice, the sales price (car insurance price) contained in the strict sales contract is automatically determined according to the model and age of the vehicle, and the price declared in the strict sales contract is reported by the parties in such a way that it does not contradict this price.
If this price is not shown correctly, it is important which price will be taken into account if the sales price is shown low or high in the sales contract. It is also necessary to use the provisions of muvazaa in the resolution of disputes that will arise here.
As it is known, the parties to a contract are obliged to agree on a matter that does not comply with their true will and is not related to them, hiding the real situation in order to deceive third parties; transactions made in this way are also called discrete transactions. (HGK), 9.2.2005 days 2005/1-19 E, 2005/42 K; 16.6.2010 days and 2010/1-281 E, 2010/323 K.).
There is always an agreement between them that this transaction does not apply with a legal action that exists ostensibly, but is never requested by the parties, solely for the purpose of giving false opinions to third parties and Deceptive them. In some cases, in addition to these two, there is another secret transaction that is in accordance with the true will of the parties (what the parties actually want), but hides behind the October transaction for various reasons. According to whether there is a secret transaction between the parties, two types of Decoupage are mentioned:
If the parties do not want to take legal Decrees between themselves, but they are only taking Decrees against third parties in order to make it look like there is a legal process between them, absolute (simple) decency is in question.
In the case of the contract of Seasuf, there is a legal transaction between the parties in accordance with their actual contract, but this transaction is hidden by another legal transaction made against the outside, which does not comply with their Decrees.
Such a contract may be in the nature of a contract in terms of the person, subject matter and conditions of the parties.
In case of non-compliance with the terms of the contract, the apparent legal action is in accordance with the true will of the parties. However, some conditions of the apparent transaction and a certain part of its subject matter are interpreted differently from the Deceptive transaction between them. In this case, while the parties have apparently changed some of the terms of the agreement, some of the terms of the entire agreement, that is, not its nature, do not comply with the confidential agreement.
For example, in order to pay less tax, there is a requirement to show the low selling price of real estate in the deed, in order to prevent the exercise of the right to know, in an apparent (official) contract, there is an over-showing of the selling price in order to make more profit when used. As explained above, the parties seriously want to make an apparent contract and agree on its nature (nature). However, here the price is shown less or more than the actual price. That is, the price of the contract made only in appearance is being changed. It is not included in the entire Muwazaa agreement, but in a part (single element) (Özkaya E., Credible Transaction and Collusion Cases, Şekçin, Ankara 2011, p.173).
No form requirement is required in the contract of agreement. It can be written in writing or orally. Even if the contract apparently depends on the form, the agreement does not need to be made in written or official form. If the appearance of the contract depends on the form, the rule of proving the contract with written evidence is a rule that is sought for the proof of the written contract, not for the validity of the contract. (YIBK 5.2.1947, 1945/20,1947/6)
The party claiming otherwise to a seemingly written contract is subject to HMUK 289 and BK 13. in accordance with the provisions of the articles, he is obliged to prove his claim with written evidence. Since the contract of collusion apparently changes or eliminates the contract, it must be written in accordance with the explicit provisions of the aforementioned laws in order to gain the power of proof. For example, car sales depend on the shape. Although the validity of the contract to be drawn up for the transfer agreement, which depends on the visible form, does not depend on the form, its proof is possible only with written evidence. (YIBK 5.2.1947, 1945/20-1947/6)
As for the concrete event:
Paying paid the amount of TL 10,271.00 in advance until 31.1.2006, the plaintiff sold his van to the defendant for USD 25,000.00, the remaining amount was agreed to be repaid in advance, the vehicle was registered on behalf of the defendant with a final sales contract, the pant paid TL 17,069.00 in this context, the balance was TL 7,931.00 with the amount of TL 7 installments upon non-payment, the defendant Bodrum 2. Claiming that the Enforcement Directorate has been conducting enforcement proceedings with file No. 2006/1631, the prosecution has been stopped as a result of the defendant’s objection, he demanded that a decision be made to cancel the appeal with the continuation of enforcement proceedings and compensation for executive denial at the rate of 40%.
According to this protocol, the defendant, whose sales price is 25.000 TL and who is kept externally between the parties, collected a total of 17.069,00 TL, dated 15.5.2006, undated, 00 TL and 6.798,00 TL through the bank with a record of 10.271 TL and showed 16.387,00 TL in the official sales deed without any Decipitation.
In addition, no objection has been put forward by the defendant regarding the fact that such a record has not been made.
Paying payable The dispute is at the point of whether the 7.931,00 TL has been paid or not.
As is known, the fact that the sale price is shown as TL 16 Dec387.00 in the Notary sales agreement is due to the fact that the minimum car insurance price is determined at 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 considered invalid.
The parties intend to conclude the apparent contract in a serious way and also to agree on its nature. Only the contract price is being changed. Here, the agreement is realized not in the entire contract, but in a part of it, in the price element.
As explained above, if the transfer of real estate registered in the register depends on the form, the validity of the mutvazaa agreement to be issued related to the transfer agreement, which apparently depends on the 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 with ordinary written evidence that the vehicle was sold for a price of 25,000.00 TL, that he received 17,069.00 TL by hand and through the bank. Thus, since it has been proved that the contract price and the sales price are TL 25.000,00, the burden of proving that the entire amount of the ordinary written contract price, that is, the remaining TL 7.931,00, has been paid, has now fallen on the defendant.
Also, in the protocol between the parties, the price was decided as TL 25,000.00, and it was decided that part of the payments should be made to this protocol, and despite the lack of defense of the defendant against the sale price, it is clearly seen in the defendant’s acceptance that TL 16,387.00, which is fixed by the sales contract at the notary, is not the real price, but the sale price is the price that the defendant objects to, as stated by the defendant in the protocol. Dec.
It should be noted immediately that it is not possible to accept that the price written only in the notarized sales contract was also received by the plaintiff. Because if it is accepted that the amount of TL 16.387,00, which is the price written in the sales contract, was received by the plaintiff, it will be seen that the total price exceeds the price in the ordinary written sales contract, taking into account the price paid by hand and the installment payment through the bank and the price written in the notarized sales contract. Therefore, the notary receipt by the plaintiff of the amount shown in the contract of sale should not be accepted, 16.387,00 TL, which is shown as the sales price is determined only by the system against the will of the parties is a price that must be recognized.
In this case, the Traffic Law No. 2918 on the transfer of movable goods 20. the action will be carried out in accordance with the article.it will be valid in accordance with the article. 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. Paying paying a part of the actual price in the ordinary written invoice gives the seller the right to request the collection of the unpaid part of the price. The burden of proof that he has paid this price is on the defendant as described above.
Therefore, the decision to resist pointing to the same thoughts is in place and in place.
However, since the defendant’s attorney’s other appeals, especially those based on the ruling and other appeals related to the merits of the case, have not been examined by the Special Chamber, the file should be sent to the Special Chamber for examination in this direction as well.
CONCLUSION : The decision to resist for the reasons explained above is appropriate; the defendant’s lawyer’s other objections to the merits of the work, especially the requested price, are included in the 19th part of the file for examination. Submission to the Legal Department,