TC
Supreme
law office
BASE NO.: 2016/6461
DECISION NO: 2018/777
DECISION DATE: 12.2.2018
CLAIM FOR COMPENSATION ARISING FROM TORT BETWEEN TRADERS – ABSENCE OF A LEGAL PERSONALITY OF THE ORDINARY PARTNERSHIP – INCLUSION OF ALL PERSONS CONSTITUTING THE PARTNERSHIP IN THE CASE Dec
2004/m.67
SUMMARY: Since the partnership does not have a legal entity in the ordinary partnership, it does not have the license to act as a purely ordinary partnership, nor does it have the right and authority to sue only one of the partners, or it is not possible to file a lawsuit against one of them. In other words, in a lawsuit that will be filed at the end of disputes arising from business and transactions conducted in the form of an ordinary partnership, it is mandatory that all the persons forming the partnership be shown as parties to the lawsuit.
If a lawsuit is filed, the work to be performed must be undertaken by the defendant and a non-defendant business legal entity, such as an ordinary partnership, and the defendant and the other partner must be parties to the lawsuit. It is contrary to the procedure and the law for the court to continue to make judgments and adjudicate by examining the merits of the enterprise without ensuring that the other entity constituting the ordinary partnership participates in the case.
LAWSUIT : The plaintiff is represented by lawyers of Iletişim Hizmetleri Anonim Şirketi and the defendant Haf. Ins. Taah. Nak. Şti. at the end of the trial at the request of the court in the case opened between the merchants on 21/11/2014, the day the tort compensation case was filed against him; the Court of Cassation decided to partially accept the case by the court of first instance with its Decrees dated 27/10/2015, but after the appeal case was decided, the examination report and the documents in the file were examined and discussed by the judge:
Decrees The case relates to a claim for compensation arising from tort between merchants. The court decided to partially accept the case; the decision was appealed by the attorneys of the parties. The plaintiff’s attorney requested compensation for the damage caused, stating that the necessary measures were not taken during the construction of the road on which the defendant company was a contractor, and therefore the infrastructure facilities belonging to the client company were damaged. Defendant’s lawyer argued that the defendant company had withdrawn from the lawsuit filed by hafriyet Ticaret, which does electrical contracting business, and a joint venture, that the other legal entity should also be included in the lawsuit, and that the fundamental objections, which are mandatory due to the friendship between them, should also be rejected Dec.
The court decided to partially accept the case based on the expert report.the examination of the contract signed between the cobblestone Decking works Municipal Earthmoving Directorate and the construction contractor Deniz Ticaret Company-Elektrik Taut iş ortaklığı in the road construction work contract file dated 23/07/2012 has revealed hafriyet. In this respect, it should be accepted that the relationship between the defendant and the non-defendant commercial enterprise is an ordinary partnership and that they take the liquidated enterprise as an ordinary partnership. Dec.
Since the partnership does not have a legal entity in the ordinary partnership, it does not have the license to act as a purely ordinary partnership, nor does it have the right and authority to sue only one of the partners, or it is not possible to file a lawsuit against one of them. In other words, all persons constituting the partnership must be shown as a party to the lawsuit in the case that will be filed at the end of disputes arising from business and transactions conducted in the form of an ordinary partnership.
In the event of a lawsuit, the defendant and the non-defendant commercial enterprise undertake the work to be performed by the other partner other than the defendant as an ordinary partnership, Hafriyet Elektrik Taut Ticaret A.Sh.it was understood that the should also participate in the case as a party. Ignoring this issue stated by the court, the fact that the merits of the case should be examined and continued to trial and Decrees should be established without the participation of the other entity constituting the ordinary partnership in the case were ignored and the Decrees should be overturned because they did not comply with the procedure and the law.
CONCLUSION: It was unanimously decided on 12.02.2018 to overturn the decision appealed for the reasons explained above, that there is no room for examining the other appeals of the parties according to the grounds for overturning, and to refund the fees received from the parties in advance if requested.