TC SUPREME
1st Civil Chamber
Case No.: 2012/16321
Decision No.: 2013/3719
Date of Decision: March 18, 2013
CASE FOR CANCELLATION AND REGISTRATION OF TITLE DEED – FRAUD CAN BE PROVEN BY ANY KIND OF EVIDENCE – THE COURT IS REQUIRED TO EXAMINE THE PARTIES’ CLAIMS AND EVIDENCE IN ACCORDANCE WITH THE PRINCIPLES SET FORTH AND RENDER A DECISION – THE JUDGMENT HAS BEEN VIOLATED
SUMMARY: Fraud (deception) can be proven by any form of evidence, and the exercise of the right of rescission is not subject to any specific form. The right of rescission may be exercised by means of a declaration of intent sent to the opposing party within one year from the date the fraud (deception) is discovered, either through objection or through litigation. However, the court did not conduct an examination and evaluation encompassing the principles and facts outlined above. In this case, it is incorrect to state that the parties’ claims and evidence should have been examined in accordance with the principles explained by the court and a decision rendered accordingly; instead, a decision was rendered based on an erroneous evaluation and an incomplete examination.
(Turkish Civil Code Art. 36) (Turkish Commercial Code Art. 28)
Case: Regarding the cancellation and registration of the property title record between the parties at the conclusion of the compensation case, the plaintiff’s attorney filed an objection within the statutory period against the local court’s decision to dismiss the case; the file was reviewed, the report of Review Judge Derya Al Decbeyoglu was read, statements were heard, and the necessary discussions and evaluations were conducted:
Decision: The case concerns claims for the cancellation, registration, and compensation regarding the land registry entry.
In court, given the specific circumstances where the appeal was based on a legal ground related to a gift, the court decided to dismiss the case on the grounds that the conditions for an appeal based on a gift, as stipulated in Article 244 of the Turkish Code of Obligations, were not met.
From the file contents and the evidence gathered, it is understood that the plaintiff’s real property No. 3 was transferred to the defendant N. on February 8, 2001. It is understood that the defendant M. sold his shares in parcels Nos. 21, 243, 317, and 320 on February 27, 2004. It is believed that this is related to the matter.
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The plaintiff stated that he had concerns regarding his advancing age and the death of his spouse, and that the defendants had told him they would remain by his side until the death of his son and spouse and would look after the real estate on the three parcels for his spouse.
Some time later, believing they would care for him, he transferred his shares in parcels numbered 21, 243, 317, and 320 to the defendants’ son; however, in 2009, he fell ill and became in need of care, and that the defendants had cast him out onto the street precisely when he needed them most, leading him to realize that their true intention was to seize his valuable real estate and that he had been deceived; upon learning that the defendants intended to file a lawsuit, he filed a lawsuit alleging that they had taken a portion of his real estate from him.
Considering the content and manner of presentation of the claim, it is clear that it is based on the legal ground of fraud. The plaintiff also stated in his petition dated July 13, 2011, that the assets were taken from him through fraud and explained that this too was based on the legal ground of fraud.
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As is well known, fraud is defined as intentionally inducing a person to enter into a contract by creating a false impression or by maintaining or preserving an existing false impression. A mistake is a mistake, and fraud involves a mistake. As stated in Article 36/1 of the Turkish Code of Obligations No. 6098, which entered into force on July 1, 2012 (Article 28/1 of the former Code of Obligations No. 818), <If one party enters into a contract as a result of the other party’s fraud, the contract is not binding, even if it is not based on mistake. > If the aforementioned conditions are met, the deceived party may exercise their right to rescind the legal relationship from the prior factual relationship (res novation) and demand the return of what was given.
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On the other hand, fraud (deception) may be proven by any form of evidence, and the exercise of the right to rescind is not subject to any formal requirements. A declaration of rescission sent to the other party within one year from the date the fraud (deception) is discovered may be exercised through objection or through litigation.
However, the court did not conduct an examination and evaluation encompassing the principles and facts explained above.
In this case, it is incorrect to state that the parties’ claims and evidence submitted to the court should have been examined in accordance with the explained principles and a decision rendered accordingly; rather, the decision was rendered as a result of an erroneous evaluation and an incomplete examination, as stated.
Conclusion: The plaintiff’s objections to this decision are well-founded. Pursuant to the reasons explained with the adoption of Article 3 of Law No. 6100 (as a transitional provision), it was decided by unanimous vote on March 18, 2013, that the advance payment received be refunded to the plaintiff and that compensation be awarded in accordance with the relevant provision.