Allegation of violation of form in real estate sales promise agreement and abuse of right

Allegation of violation of form in real estate sales promise agreement and abuse of right –
SUMMARY: Since the assertion of lack of form clearly constitutes injustice, for the recognition of the real right and the protection of the individual, it is obligatory to operate the provision of Article 2/2 of the TCC, which arises from this necessity and provides an extraordinary opportunity, in other words, the rule of form requirement should be neglected, not the rule of prohibition of abuse of right. Indeed, the judiciary is obliged to be sensitive in cases where it is desired to obtain benefits outside the purpose of the formal provision. This is because the law is only useful for the satisfaction of legitimate interests, and if it is used for something else, it loses its raison d’être. In the face of all these, it should be accepted that the defendant’s defense that the contract is invalid because it was not made in an official manner, and therefore they cannot be held responsible for the fair value of the immovable property, is contrary to the rule of prohibition of abuse of right.

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17. In our legal system, the exceptional circumstances, which are concluded by the rule of good faith, have sometimes been transformed into an objective practice through case-law consolidation decisions.

18. As a matter of fact, the Grand General Assembly of the Court of Cassation, in its Unification Decision dated 25.01.1984 and numbered 1983/3 E., 1984/1 K., dated 25.01.1984, discussed the issue in relation to exception contracts and stated that in construction contracts, which are a type of exception contracts, in the event of termination of the contract by the owner due to the default of the contractor by not completing the work at the specified time due to his own fault, the disputes should be resolved within the framework of the provisions of Articles 106-108 of the Code of Obligations as a rule. Although the disputes should be resolved within the framework of the provisions of Articles 106-108 of the Code of Obligations as a rule, in cases where the nature and characteristics of the event justify it, while concluding that the termination of the contract should be accepted that the termination of the contract will have a prospective effect by taking into account the provision of Article 2 of the Turkish Civil Code, it was emphasized that the application of the rule of good faith, which is secondary to the legal norms, is sometimes compulsory due to equity.

19. In the Unification Decision dated 30.09.1988 and numbered 1987/2 E., 1988/2 K. dated 30.09.1988, it was discussed whether it is contrary to the rule of prohibition of abuse of right to claim the invalidity of the contract by the person who sells an independent section with an external contract from the immovable immovable whose construction has started to be subject to condominium ownership on the title deeded immovable; and it was concluded that although the buyer has fulfilled all his debts and the seller has delivered the independent section and allowed the buyer to use it as the owner, the failure to transfer the title deed by claiming the invalidity of the contract is incompatible with good faith. Although the subjects are similar, it is not possible to apply the aforementioned Unification Decision directly to the case at hand. Because in the concrete dispute, it has been determined that the immovable subject to the lawsuit has been left at the water level with the discovery made at the scene, and it is clear that it cannot be said that the seller has fully fulfilled its performance. Nevertheless, it should not be overlooked that the reasoning of the decision is guiding. Unification of jurisprudence decisions are explanatory with their justifications and binding as a result.

20. In the aforementioned Unification of Jurisprudence Decision, the conflict between the form of contracts and the rule of prohibition of abuse of right and the conflict between the form and the rule of prohibition of abuse of right is examined, and in summary, it is stated in the aforementioned decision that the contracts made without complying with the form are invalid, and it is further stated that “…. When the breach of form, which is mandatory in nature and must be observed by the judge ex officio, and the rule of prohibition of abuse of right conflict in a dispute, the nature of the case is of great importance in order to overcome the rule of prohibition of abuse of right and the rule of form. This is a natural consequence of the subsidiarity of the rule regulated in the second paragraph of Article 2 of the Civil Code, and the rule of prohibition of abuse of right can only be applied in cases of extreme necessity….

The second paragraph of Article 2 of the Civil Code deprives the exercise of rights from legal protection in cases where the character of abuse is directly evident. In such disputes, the rule of form requirement may be neglected, not the rule of prohibition of abuse of right. This is because, as the Swiss Prof. Merz (Commentary on the Civil Code art.2, Nr.21) says, the right in formal law is limited by the idea and requirements of material justice and can be taken to its real extent; the real right is protected, not the formal or apparent right. Indeed, the judiciary is obliged to be sensitive in cases where it is sought to obtain benefits beyond the purpose of the formal provision. This is because the law serves only for the estimation (satisfaction) of legitimate interests; when it serves for something else, it loses its raison d’être. On the other hand, Article 4 of the Civil Code calls upon the judge to decide in accordance with justice. He is obliged to make a correct and fair balancing of interests and to observe the facts.

For the reasons explained, it is concluded that in the disputes subject to the unification of jurisprudence and limited to it, the judge may accept the registration lawsuit filed by considering Article 2 of the Civil Code according to the characteristics of the case. “, it is emphasized that the seller’s taking refuge in the official form requirement stipulated by the law in order to get rid of the contract and thus avoiding to fulfill the obligation to transfer the ownership, in other words, trying to benefit from the legal provision that imposes a form requirement without any benefit worth protecting in this regard, clearly violates the rule of prohibition of abuse of right, and in such cases, the rule of form requirement may be neglected.

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