TC
YÜCE
LAW FIRM
2012/10938
2012/10436
October 1, 2012
Claims of Vitiated Consent and Abuse of Process in Legal Proceedings (Cases Where Such Claims Can Be Proven by Any Evidence / Situations Where Failing to Hear the Plaintiff’s Witnesses Is Improper – Elements of Error, Fraud, and Deception / Shortening of Statutes of Limitations)
NO WRITTEN EVIDENCE REQUIRED (Because the Local Court Must Observe That Claims of Impairment of Consent and Abuse of Legal Processes Can Be Proven by Any Form of Evidence – Failing to Hear the Plaintiff’s Witnesses Is Incorrect)
WITNESS EVIDENCE (Any form of evidence regarding claims of defect of consent may be established, such as mistake, fraud, and undue influence – The court failed to consider this / Insufficient investigation was conducted / The PLAINTIFF’S witnesses should have been heard)
STATUTE OF LIMITATIONS IN A FRAUD CASE (An Action for Annulment May Be Filed Within One Year of the Expiration of the Statute of Limitations for Criminal Prosecution – The Excessive Disproportion Between the Acts Will Be Determined – The Psychological State of the Injured Party and Subjective Factors Will Be Investigated)
DISCOVERY OF FRAUD (A Declaration of a Will Sent to the Other Party via Service of Process Is Also Valid, and a Lawsuit May Be Filed Within One Year / The Claim May Be Proven by Any Evidence / No Written Evidence Requirement)
CASE FOR CANCELLATION AND REGISTRATION OF TITLE BASED ON FRAUD (In Cases Where Written Evidence Is Not Required – It May Be Proven by Any Evidence Even Without a Written Document / THE PLAINTIFF’S WITNESSES MUST BE HEARD) 6098/Art. 28.36 818/m. 21,28 6100/m. 203
SUMMARY:
The case concerns a claim for the cancellation and registration of a title deed based on error, fraud, and legal grounds. The court decided to dismiss the case on the grounds that the claim must be proven by absolute written evidence. However, even in the absence of a written document, claims of defect in consent and undue influence in legal transactions such as fraud and forgery can be proven through witnesses and any form of evidence.
Additionally, there is the misconception that fraud involves a misleading error. Fraud can be proven by any form of evidence, and the exercise of the right to rescission is not subject to any formal requirements. A declaration of revocation sent to the other party within one year from the date the fraud was discovered may be used through objection or through litigation. The aggrieved (exploited) party is granted the right to file a rescission lawsuit, prove their claim with any form of evidence, and demand restitution within one year from the date of the contract by notifying the other party that they are not bound by the contract.
In cases of undue influence, the excessive disparity between the parties’ positions must first be emphasized; if the objective element is proven, the agreement must be assessed in light of the individual’s personality, with material and immaterial aspects—such as age, health condition, social standing, and economic and psychological makeup—that constitute the subjective element being thoroughly investigated and examined. The court assessed the case on the grounds that the plaintiff’s witnesses were not heard, a request to hear a witness was denied, and an investigation encompassing the principles and facts outlined above was not conducted.
CASE:
The plaintiff’s objection regarding the “cancellation of registration” document, filed within the statutory time limit following the local court’s decision dismissing the case, was reviewed; the case file’s audit reports were examined, and the judge’s comments were considered and discussed.
DECISION:
The case concerns a request for the cancellation and registration of the land registry entry based on the legal grounds, error, and fraud of the transaction. The court decided to dismiss the case.
From the contents of the file and the evidence gathered, it is understood that the Registered Owner, on February 9, 2010, provided the defendant with a dowry through the sale of the disputed land, consisting of three parcels, including independent unit No. 16 located on plot No. 6064.
.
The plaintiff made the following claims in the complaint: The plaintiff, with the suggestion of his son and daughter-in-law, transferred real estate to his daughter to help alleviate her financial difficulties; the consideration was not paid; the payment in question was made fraudulently while his daughter was 71 years old; the contract price was shown to be very low; and for these reasons, he filed the lawsuit.
As is well known, fraud is defined as intentionally inducing a person to enter into a contract or to maintain or continue an existing erroneous intent, with the specific purpose of directing that person toward such an act. Additionally, there is a common misconception that fraud necessarily involves a deceptive element.
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. 881), “If one party has entered into a contract as a result of deceiving the other, the contract is not binding, even if it is not based on a mistake. If the aforementioned conditions are met, the deceived party may exercise their right of rescission (makable shamil) to effectively terminate the legal relationship and, by exercising this right, may demand the return of what was given.”
On the other hand, the exercise of the right of rescission is not subject to any formal requirements, as fraud can be proven by any means of evidence. A declaration of intent sent to the other party within one year of the date on which the fraud was discovered may be exercised either through an objection or through litigation.
.
On the other hand, for a contract to be deemed invalid due to undue influence, there must be a correlation between the action and the counteraction resulting from one party knowingly exploiting and abusing a specific personal circumstance of the other party. 28. Under the Turkish Code of Obligations No. 6098, which entered into force on July 1, 2012, provisions have been established in our laws to protect individuals who are compelled into contracts due to dire or difficult circumstances and who transfer their property at very low prices, ensuring that the weak do not oppress the strong and that the weak do not oppress themselves.
Under Article 818, Paragraph 21 of the Turkish Code of Obligations, “where there is a disproportion between the reciprocal acts in a contract, if such disproportion stems from the victim’s negligence, thoughtlessness, or inexperience, the loss must be reimbursed to the other party, whether or not the party is bound by the contract, depending on the nature of the situation,“ and that ”the other party must comply with the contract.”
In this case, our ability to speak of undue influence (gabin) depends on the occurrence of two subjective elements—excessive leniency in the actions—alongside objective elements: on one side, narrow-mindedness, inexperience, or thoughtlessness (light-headedness), and on the other side, the intent to exploit and take advantage. Notifying the aggrieved (exploited) party within one year from the date of the contract that they are not bound by it grants them the right to file a cancellation lawsuit, prove their claim with any evidence, and demand a refund.
.
First and foremost, it must be noted that in cases of excessive exploitation (lesion), the extreme disproportion in the initial actions must be emphasized; if the element to be proven is the objective personality of the victim, factors such as age, health condition, social standing, psychological makeup, material and spiritual aspects, and economic power must be examined, along with the depth of the subjective element.
Regarding the specific case, the court decided to dismiss the case on the grounds that ownership can be acquired through official deeds and registration, and that the claim must be proven with absolute written evidence. However, contrary to the principles and facts outlined above and the provisions of Article 203/c of the Turkish Code of Civil Procedure No. 6100 (Article 293/5 of the Turkish Code of Civil Procedure No. 1086), it is clear that claims of defect in consent and abuse of rights in a legal proceeding can be proven through witnesses and any form of evidence, even in the absence of a written document.
However, the court failed to conduct an analysis encompassing the principles and facts outlined above; it erroneously rejected the plaintiff’s request to hear witnesses and denied the motion to hear a witness.
Under these circumstances, the parties, defined in accordance with the principles and claims of the necessary investigation conducted based on evidence and witnesses, proceed on the assumption that the assessment of the claim of fraud—which cannot be proven—and the resulting determination of damages (excessive use) must be determined based on the evaluation to be obtained as a result of the judicial decision, and that proceeding on the assumption that this would lead to an incorrect written outcome is incorrect.
CONCLUSION:
,The plaintiff’s objections to this decision are well-founded. For the reasons explained by the adoption of Article 3 of Law No. 6100 (as a transitional provision), it was decided by unanimous vote on October 1, 2012, that the advance payment received be refunded to the plaintiff and that compensation be awarded in accordance with the relevant provision.