CONSTRUCTION CONTRACTS IN RETURN FOR LAND SHARE

LAWSUIT FOR PERMISSION TO PERFORM IN ONE’S OWN NAME

Introduction

In construction contracts in return for land share, landowners undertake to transfer a certain portion of their land shares to the contractor; in return, the contractor undertakes to construct the independent units in accordance with the contract and the project and to deliver them to the landowners. In the event that the parties fail to fulfill their respective obligations, one of the statutory rights available to the parties is the institution of “performance in one’s own name (nama ifa),” regulated under the Turkish Code of Obligations No. 6098, which enables the creditor, in cases of non-performance, to perform the obligation personally or through a third party.

The Concept of Performance in One’s Own Name, Its Legal Basis and Nature

Performance in one’s own name is a legal institution that allows the creditor, in cases where the debtor fails to perform an obligation to do or not to do, to perform the obligation personally or through a third party at the debtor’s expense. Article 113 of the Turkish Code of Obligations states:

“If an obligation to do is not performed by the debtor, the creditor may request permission for the performance of the obligation by himself or by another person at the debtor’s expense; the right to claim any damages is reserved.

A debtor who acts in breach of an obligation not to do is obliged to compensate for the damage caused by such breach.

The creditor may also request the removal of the situation contrary to the obligation or to be authorized to do so himself at the debtor’s expense.”

This provision provides the creditor with the opportunity to keep the contract in force and to ensure the performance of the obligation. Performance in one’s own name is an effective legal instrument that may be used to protect the creditor’s rights and to ensure the completion of the obligation in cases of non-performance.

Conditions for Granting Permission to Perform in One’s Own Name

For a request for permission to perform in one’s own name to be granted, certain conditions must be met:

• The contract must still be valid and in force,
• The construction must be carried out in compliance with zoning legislation,
• The debtor must have failed to perform an obligation to do or not to do,
• The request for performance in one’s own name must comply with the principle of good faith,
• It must be possible and necessary to remedy the incomplete or defective works,
• It must be feasible to complete the construction in accordance with the permit and the project.

Even after permission to perform in one’s own name is granted, the contract remains valid. This is because, even if the debtor’s obligations are performed by a third party or directly by the landowners within the scope of performance in one’s own name, the contractor’s responsibility to complete the construction continues. In this context, if the contract has been terminated prior to filing the lawsuit for permission to perform in one’s own name, the court will dismiss the case.

Situations such as failure to complete the construction, construction not being carried out in accordance with the contract, permit, or conditions agreed upon by the parties, defective performance, or failure to obtain the building occupancy permit (habitation permit) even if the construction is completed are all considered as non-performance by the contractor. In addition, although definite time periods are generally stipulated in construction contracts in return for land share in practice, where the periods are not specified or have not yet expired but the work has been defectively performed, it is also necessary to put the contractor in default by notice.

Parties in the Lawsuit for Permission to Perform in One’s Own Name

In construction contracts in return for land share, a request for performance in one’s own name may be asserted by both the landowners and the contractor, as these contracts impose obligations on both parties.

Landowners may request performance in one’s own name in cases where the contractor is in default or has carried out incomplete/defective works. For example, if the contractor has not completed the construction in accordance with the contract or has altered the project without completion, the landowner may request performance in one’s own name pursuant to Article 113 of the Turkish Code of Obligations. In this case, the creditor may request the completion of the incomplete works and the imposition of the costs on the debtor. In addition, together with permission for performance in one’s own name, the landowner may also request compensation for damages suffered from the court.

It should also be noted that third parties who are not landowners and who have subsequently acquired ownership of independent units do not have the right to request permission to perform in one’s own name.

Likewise, the contractor may also request performance in one’s own name if the landowner fails to fulfill his obligations. For example, if the landowner unjustifiably revokes the power of attorney granted to the contractor or prevents the continuation of construction, the contractor may request performance in one’s own name under Article 113 of the Turkish Code of Obligations. This provides the necessary legal basis for the contractor to perform his obligation and safeguards the continuation of the contract.

Procedure and Matters to Be Considered in the Lawsuit for Performance in One’s Own Name

For permission to perform in one’s own name, an application must be made to the competent and authorized civil court of first instance. The claimant is the party requesting performance in one’s own name, and the defendant is the party that has failed to perform its obligation. The court determines the incomplete works, calculates the costs and expenses, and imposes them on the debtor.

In practice, two possibilities are considered regarding the coverage of these costs. These are the completion of the incomplete and/or defective works using the proceeds obtained from the sale of independent units, or the deposit of the costs by the contractor. Indeed, during the proceedings, the claimant, namely the landowners, may request authorization for the sale of the independent units falling to the contractor’s share. The proceeds obtained from such sales are used to have the remaining obligations performed by third parties. After offsetting the expenses, the remaining amount will give rise to a receivable right for the contractor.

Another possibility is, as stated above, the deposit of the costs with the court by the contractor. Courts generally prioritize the deposit of the costs rather than the sale of the independent units belonging to the contractor. However, if the costs are not deposited by the contractor or if it is concluded that they will not be covered, the court may grant authorization for the sale of the independent units upon the request of the landowners.

Legal Consequences of the Request for Performance in One’s Own Name

With a decision permitting performance in one’s own name, the creditor may complete the incomplete or defective works personally or have them completed by a third party. The expenses incurred in this process are imposed on the debtor. Pursuant to Article 113 of the Turkish Code of Obligations, the costs and risks are borne by the debtor. The Court of Cassation states that it is not necessary for all landowners to file the lawsuit for performance in one’s own name, and that each landowner has the right to file such a lawsuit. The practice of performance in one’s own name ensures the effectiveness of the contract while remedying the grievances of the parties.

Conclusion and Evaluation

In construction contracts in return for land share, performance in one’s own name functions as a central legal instrument in resolving performance-related issues. Article 113 of the Turkish Code of Obligations grants the creditor the opportunity to perform the obligation against the non-performing party, while observing the balance of legal interests. Performance in one’s own name keeps the contract alive, protects the rights of the parties, and remedies grievances.

In practice, when the process of performance in one’s own name is conducted meticulously, the legal security between the parties is enhanced. In particular, the remediation of incomplete or defective works and the imposition of costs on the debtor enable the effective protection of contractual rights for both landowners and contractors. Moreover, the scope of the request for performance in one’s own name is not limited solely to the completion of the work, but may also include compensation for damages suffered by the parties, remediation of incomplete works, and permissions related to the financing of such works. In this context, Article 113 of the Turkish Code of Obligations grants broad powers to the creditor while defining the responsibilities incumbent upon the debtor within a legal framework.

Yours sincerely,
Atabay Law Office

LAWSUIT FOR CANCELLATION AND REGISTRATION OF TITLE DEED DUE TO HEIR SIMULATION

Introduction

One of the disputes frequently encountered in inheritance law is heir simulation, which arises after the death of the testator and is popularly known as “concealment of assets from heirs.” This situation occurs when the testator transfers a real property that he or she actually intends to donate by disguising it as a sale or a contract of care until death, with the purpose of concealing assets from the heirs. In such a case, the legal remedy to be pursued by the heirs is to file a lawsuit for cancellation and registration of the title deed due to heir simulation.

Legal Definition and Elements of Heir Simulation

Definition and Its Place in the Legal System

Heir simulation is accepted as a type of relative simulation specific to inheritance law. This concept refers to the concealment of the testator’s true intent of “donation” through an apparent “sale” or “contract of care until death.” In Turkish law, heir simulation is not a concept explicitly regulated by statute; however, it gained a legal basis through the Unification of Judgments Decision No. 1/2 dated 01.04.1974 of the Grand General Assembly of the Court of Cassation. This decision eliminated legal uncertainty by granting all heirs whose inheritance rights have been violated the right to file this lawsuit.

The basis of the lawsuit for cancellation and registration of the title deed due to heir simulation is essentially that the simulated transaction does not meet the legally required conditions, constitutes an abuse of rights, and therefore results in the usurpation of the heirs’ rights.

Elements Constituting Simulation

For a transaction to be qualified as heir simulation, four fundamental elements must coexist:

• Apparent Transaction: This is the transaction carried out with the intention of misleading third parties and does not correspond to the true intent of the parties. It is generally a sale or a contract of care until death executed at the land registry. Due to simulation, this transaction is absolutely null and void.
• Hidden Transaction: This is the transaction concealed behind the apparent transaction, reflecting the actual and true intent of the parties, which in heir simulation is always a donation agreement. However, since the donation of a registered real property is subject to an official form requirement, this hidden donation agreement is invalid due to lack of form.
• Simulation Agreement: This is the agreement made between the testator and the person acquiring the real property that the apparent transaction will not be valid between them.
• Purpose of Concealing Assets from Heirs (Intent to Deceive): In the Unification of Judgments Decision of the Court of Cassation, the essential condition is expressed as the testator having carried out this transaction with the motive of concealing assets from the heirs.

Parties to the Lawsuit, Its Nature and Scope

All heirs whose inheritance rights have been violated, whether they are reserved portion heirs or not, are entitled to file this lawsuit. Each heir may file the lawsuit individually based on their own inheritance right. However, those who have waived their inheritance rights through an inheritance waiver agreement, those who have rejected the inheritance, or those who have been disinherited cannot file this lawsuit. In such disputes, the defendant is the person who is a party to the simulated transaction and who acquired the real property from the testator. It is not possible to assert a claim of heir simulation against third parties who have acquired the real property in good faith by relying on the land registry.

A lawsuit for cancellation and registration of the title deed due to heir simulation is a lawsuit filed with the request to rectify an unlawful registration created in the land registry. As a result of this lawsuit, it is requested that the title deed registration be cancelled not in the name of the testator, but registered in the names of the heirs in proportion to their respective inheritance shares. The precedents of the Court of Cassation accept that this lawsuit may only be filed for registered real properties. The transfer of movable properties or unregistered real properties cannot be the subject of this lawsuit.

In lawsuits for cancellation and registration of the title deed due to heir simulation, the competent and authorized court is the civil court of first instance at the location of the real property. Furthermore, since the heirs will acquire ownership, namely real rights, following the death of the testator, this lawsuit may be filed at any time after death; in other words, the right to file the lawsuit is not subject to a statute of limitations.

Burden of Proof and Evaluation Criteria

Proof Mechanisms and Freedom of Evidence

In simulation lawsuits, the burden of proving the testator’s motive of concealing assets rests with the heirs who file the lawsuit. Since the heirs are not parties to the simulated agreement, they are considered “third parties” and therefore may benefit from the principle of freedom of evidence. Accordingly, it is possible to prove the claim by any kind of evidence, including witness testimony, in addition to written evidence.

Indicators of Simulation in the Precedents of the Court of Cassation

The Court of Cassation has identified a series of “factual presumptions” and “indicators” to determine the intent to conceal assets. These include:

• Age, Health Condition and Special Care Needs: The age and health condition of the testator at the date of transfer.
• Gross Disparity Between the Sale Price and the Actual Value: The apparent sale price being significantly lower than the actual value of the real property.
• Absence of Financial Need of the Testator: The testator having no need for money at the time of the transaction.
• Human Relations Between the Parties: The familial relationships between the testator, the transferee, and the other heirs.
• Ratio of the Transferred Property to the Estate: The transferred real property constituting a substantial portion of the testator’s entire assets.

Differences Between Heir Simulation and Reduction Lawsuit

Heir simulation and reduction lawsuits differ from each other in terms of their purposes, legal bases, parties, and procedures. A reduction lawsuit is a legal remedy to be pursued when the testator violates the inheritance shares of reserved portion substitution heirs by unjust or fraudulent dispositions, thereby harming their inheritance shares.

While the aim of a lawsuit for cancellation and registration of the title deed due to heir simulation is to annul the invalid disposition resulting from the simulated transaction and to ensure the return of the real property to the testator’s estate, namely to the heirs, in a reduction lawsuit, reserved portion heirs do not seek the complete annulment of the transaction but rather request the return of the portion corresponding to their reserved shares.

As stated in the definition section, only reserved portion heirs are entitled to file a reduction lawsuit. That is, under the Turkish Civil Code, persons other than the spouse, children, grandchildren, or parents do not have the right to request reduction. Furthermore, in terms of limitation periods, while a lawsuit for cancellation and registration of the title deed due to heir simulation may be filed at any time after the death of the testator, a reduction lawsuit must be filed within 1 year from the date of learning that the reserved portion has been violated and, in any case, within 10 years from the date of death.

These two lawsuits also differ in terms of the type of property involved. While a reduction lawsuit may concern any kind of movable or immovable property, a lawsuit for cancellation and registration of the title deed due to heir simulation may only concern registered real properties.

Although there are many differences between these two lawsuits, in practice, it is also possible to file them together in the alternative. This is because, in some cases, whether the testator acted with the intent to conceal assets cannot be determined by the heirs prior to the collection of evidence by the court. In such cases, all the conditions required for both lawsuits must cumulatively coexist, and the court will first examine the claim for cancellation and registration of the title deed due to heir simulation; if, as a result of the examination, no simulation or transaction carried out with the intent to conceal assets is found, or no such conviction is formed, then the protection of the inheritance shares of the reserved portion heirs will be sought through the rectification of the dispositions and transfers made.

Conclusion and Evaluation

A lawsuit for cancellation and registration of the title deed due to heir simulation is a vital instrument for the establishment of equity in Turkish inheritance law. The success of the lawsuit depends on the heirs’ ability to use the advantage of freedom of evidence to present the factual presumptions shaped by the precedents of the Court of Cassation together with all the characteristics of the concrete case. In practice, in order to ensure the broadest possible protection of the heirs’ rights, it is an appropriate strategy, in terms of both procedural economy and the prevention of loss of rights, to initially proceed with a request for cancellation and registration of the title deed based on a claim of heir simulation, and to subsequently assert a reduction claim in a gradual manner in case this request is not accepted. Indeed, this lawsuit aims to remove the veil between the testator’s apparent intent and the intent actually pursued, thereby revealing the hidden truth; achieving this aim requires the meticulous construction of a strong and multifaceted evidentiary framework supported by a consistent narrative encompassing all details of the case. Within this framework, heir simulation lawsuits serve as a complementary safeguard that protects not only individual inheritance rights but also the fundamental balance and justice objective of inheritance law.

Yours sincerely,
Atabay Law Office

UNFAIR COMPETITION CASES AND RIGHTS AIMED AT THE PROTECTION OF BUSINESSES

Introduction

The healthy functioning of the modern commercial structure depends on the existence of a free and fair competitive environment. Today’s market conditions are also built upon the existence and protection of free competition conditions. While competition among businesses increases market efficiency, it is an activity defined by certain limits set by the legal order. Indeed, ensuring that competition in a market is fair is at least as important as ensuring that it is free, in terms of maintaining sustainability and efficiency in the relevant market. Therefore, in order to protect fair competition, the legislator has introduced certain limitations on free competition. One of the most important of these limitations is the prohibition of unfair competition, which is the reflection of the principle of good faith—one of the fundamental principles of commercial law—into commercial life, and which is regulated under Article 54 et seq. of the Turkish Commercial Code (“TCC”).

Unfair competition is a situation that negatively affects the economic activities and market positions of market operators and may disrupt the commercial order. The TCC grants certain legal rights to operators in order to prevent such damages and to protect fair competition. Unfair competition regulations are among the fundamental rules serving the protection of trust, honesty, and transparency in commercial life. While these rules protect the economic interests of competing businesses, they also safeguard consumers’ right to be accurately informed and support public order regarding the functioning of the market.

What Is Unfair Competition?

A free competition environment in commercial life is of great importance for business operators. It refers to the economic sphere in which businesses can freely offer their goods and services and compete with one another based on criteria such as price, quality, and innovation. Free competition, as one of the fundamental elements of the market economy, ensures the efficient allocation of resources, increases production and service efficiency, and maximizes consumer benefit.

However, the healthy functioning of this environment requires business operators to conduct their activities in compliance with the rules of good faith and legal regulations. Otherwise, unfair practices such as misleading advertisements, counterfeit products, defamation campaigns, and the unlawful acquisition of trade secrets may arise. Therefore, the proper functioning of free competition in the market and the realization of social benefit are only possible if fair competition is also protected.

In this context, unfair competition can be defined by the following basic elements: the commission of an unfair and unlawful act in a market, the abuse of economic competition, and, within this framework, the exposure of other businesses operating in the market and/or consumers to damage or the risk of damage. It should also be noted that the existence of a competitive relationship between the perpetrator and the victim of the act giving rise to unfair competition is not mandatory.

The institution of unfair competition is a very important regulation in commercial life and aims to protect the economic interests of businesses and the market order. The act giving rise to unfair competition must inherently carry an economic value. Acts that do not aim at generating income cannot constitute unfair competition. For unfair competition to occur, an economic interest must have been violated or there must be a risk of such violation. The situations giving rise to unfair competition are enumerated in our legislation.

Cases of Unfair Competition

Article 55 of the Turkish Commercial Code regulates acts constituting unfair competition by way of exemplification and lists the main situations that may be encountered in commercial life. To explain the principal cases of unfair competition;

• Engaging in advertisements, sales methods, and other unlawful acts contrary to the rule of good faith:
  • Disparaging others or their goods, work products, prices, activities, or commercial affairs through false, misleading, or unnecessarily offensive statements.
  • Making false or misleading statements regarding one’s own business, goods, work products, prices, stocks, sales campaigns, or business relations.
  • Acting as if one possesses qualifications such as diplomas, awards, or titles that one does not actually have.
  • Causing confusion with the goods, work products, activities, or commercial affairs of others.
  • Making misleading or unfair comparative advertisements or announcements.
  • Presenting the real value of a product or service in a misleading manner by offering additional benefits to customers.
  • Misleading customers by concealing the characteristics, quantity, purpose of use, benefits, or risks of goods, work products, or activities.
  • Restricting the customer’s freedom of decision through aggressive sales methods.
  • Failing to clearly indicate the trade name in public announcements regarding installment sales or similar legal transactions or consumer credits, or failing to show the cash or total sales price and additional costs in TL and on an annual basis.
  • Providing incomplete or incorrect information regarding installment sale or consumer credit agreements.
• Inducing the breach or termination of contracts:
  • Encouraging customers to act contrary to their existing contracts by entering directly into contracts with oneself.
  • Encouraging employees or agents of third parties to act against their employer or principal by offering benefits.
  • Inducing employees, agents, or assistants to disclose or obtain their employers’ or principals’ production and trade secrets.
• Unauthorized exploitation of others’ work products; in particular,
  • Unauthorized use of work products such as offers, calculations, or plans entrusted to oneself.
  • Knowingly benefiting from work products belonging to third parties that have been unlawfully provided.
  • Unauthorized reproduction and use of ready-made work products belonging to others.
• Unlawfully obtaining, disclosing, or communicating production and trade secrets to others
• Failure to comply with business conditions

Rights of Business Operators Against Unfair Competition

As business operators are adversely affected in their economic activities and market positions by unfair competition, the Turkish Commercial Code grants various rights to operators against such situations. These rights aim both to prevent acts of unfair competition and to compensate for the damage suffered. The rights of business operators in this context can generally be classified as: (i) prevention of unfair competition, (ii) right to compensation, (iii) legal measures, and (iv) claims for cancellation/destruction.

Right of Business Operators to Request the Determination of Unfair Competition:

• The right to request the determination of unfair competition is one of the most fundamental legal protection mechanisms for business operators. This right enables the court to determine that the act subject to unfair competition has occurred, is unlawful, and violates the rules of good faith.

Right to Request the Cessation and Prevention of the Act of Unfair Competition:

• If the act of unfair competition is ongoing, affected business operators may request the court to immediately stop such activities. With the court’s cessation decision, the act of unfair competition is immediately terminated.
• Even if the act of unfair competition has not yet occurred, but poses an imminent danger, business operators may request the prevention of unfair competition. Requests for the cessation and prevention of unfair competition are often evaluated together with requests for preliminary injunctions.

Right to Request the Restoration of the Situation Prior to Unfair Competition:

• The business may request the elimination of the situation that caused unfair competition. Restoration of the previous state is a right regulated not only in material terms but also for restoring the business operator’s commercial reputation and re-establishing the disrupted market balance.
• Requests for restoration of the previous state aim at situations such as the correction of misleading advertisements, the recall or destruction of counterfeit products, the correction of statements damaging reputation, and the elimination of unjust gains.

Right to Claim Material and Moral Compensation:

• The business operator may claim material and moral compensation in order to compensate for the damages suffered.

Right of the Business Operator to Request the Transfer of Unjust Gain:

• If an unjust gain has been obtained due to unfair competition, the aggrieved business operator may request that such gain be transferred to itself.

Right of the Business Operator to Resort to Criminal Sanctions:

• Pursuant to Article 62 of the TCC, prosecution of this offense is subject to complaint. Persons or institutions that have suffered damage or are under the threat of damage may file a complaint within the general complaint period, namely within 6 months.
• In cases of unfair competition, pursuant to Article 62 of the TCC, the sanction for natural persons is imprisonment for up to two years or a judicial fine. This is an alternative sanction, and the court applies the sanction it deems appropriate.
• Security measures shall be imposed on legal entities. It should be noted that, pursuant to Article 60 of the Turkish Penal Code, the legal entities envisaged to be subject to sanctions in the nature of security measures are private law legal entities. Accordingly, public law legal entities are not covered under this provision.

Conclusion and Evaluation

Unfair competition is an institution regulated under Articles 54–63 of the TCC, aiming to ensure the healthy functioning of the competitive order by preventing conduct contrary to the rule of good faith in commercial life. In this context, the legal remedies granted to aggrieved businesses aim to eliminate the existing effects of unfair competition and to prevent potential damages. The criminal sanctions in the TCC enhance deterrence and strengthen the competitive environment. The effective implementation of unfair competition provisions not only protects the rights and interests of businesses but also contributes to the reliable and sustainable functioning of the economic order. Therefore, it is important for businesses to act in accordance with the principles of fair competition and to use the remedies granted to them in a timely and informed manner against acts constituting unfair competition.

Sincerely,
Atabay Law Office

TAKING THE REAL VALUE AS BASIS IN TITLE DEED CANCELLATION AND REGISTRATION CASES AND
THE PROTECTION OF THE RIGHT OF ACCESS TO COURT

Introduction

In its decision dated 23.10.2024 and numbered 2021/46030, the Constitutional Court examined the allegation of violation of the right of access to court raised through an individual application. The incident subject to the decision; is shaped around the rejection of the appeal application on the grounds that the valuation made by the first instance court in a title deed cancellation and registration case arising from the violation of the right of pre-emption remained below the monetary finality threshold for appeal. Emphasizing that the right of access to court is not limited solely to the opportunity to file a lawsuit; but also includes the ability to apply to legal remedies effectively, foreseeably, and in a manner that is practically usable, the Constitutional Court evaluated the consequences of the monetary threshold practice in terms of the right of access in the concrete case.

Examination Regarding the Decision Rendered by the Constitutional Court

In the case subject to the Constitutional Court, after one of the co-owners who is a shareholder in a property subject to co-ownership sold their share to a third party, the other co-owner filed a title deed cancellation and registration lawsuit on the allegation that the right of pre-emption was violated. The first instance court; ruled for the cancellation of the applicant’s share in the immovable and its registration in the name of the plaintiff, and also decided that 5,100-TL, determined on the basis of the sale price shown in the official deed during the sale of the immovable, would be paid to the applicant upon the finalization of the decision. The applicant applied to the appellate remedy against the decision; however, the Regional Court of Appeal rejected the appellate application on the grounds that 5,100-TL was below the monetary finality threshold for appeal.

The right of pre-emption is a right that, in cases where a share is sold to a third party in immovables subject to the provisions of co-ownership, grants other co-owners the authority to purchase the sold share with priority and becomes exercisable together with the sale. In the examined decision, the applicant is the third party who purchased the 1/16 share in the immovable. As understood from the decision, in the concrete case, there is a difference between the sale price shown in the title deed and the price actually paid.

According to the determinations made by the first instance court, the amount paid via the bank account is 100,000.00-TL. In addition, in the expert report obtained by the Court, it was stated that the value of the plaintiff’s 848.04 m² share was 370,000-TL. Although the value of the applicant’s share is not separately included in the report, it is understood that the share belonging to the applicant is 516 m². In the proportional calculation made on the basis of these data, it is considered that the value of the applicant’s share could be approximately 225,139.52-TL.

Nevertheless; despite the fact that the bank receipts were available in the case file, while it was necessary, in line with the case-law of the Court of Cassation, to determine the real value of the immovable through an expert assessment and to complete the fees ex officio based on this value and to make an evaluation accordingly, a الحكم was established over 5,100-TL on the basis of the price in the official deed. As a result of this approach, the appellate review could not be conducted due to the monetary finality threshold. The Constitutional Court evaluated this chain effect as a violation of the right of access to court under Article 36 of the Constitution; and decided to conduct a retrial in order to eliminate the consequences of the violation.

Conclusion

With this decision, the Constitutional Court clearly set forth the obligation of courts, in title deed cancellation and registration cases based on the right of pre-emption, not to suffice with the price shown in the title deed but to investigate ex officio the real sale value of the immovable and to determine it through an expert assessment. Leaving decisions rendered without completing the fees over this amount after determining the real value, and based solely on the low price in the title deed, outside of review on the grounds of the monetary finality threshold for appeal, violates the right of access to court. In this respect, the decision constitutes an important precedent emphasizing that, in terms of immovable property law, the material truth must be taken as basis and the safeguards of legal remedies must not be rendered ineffective.

Sincerely,
Atabay Law Office

ACTION FOR AUTHORIZATION OF PERFORMANCE IN ONE’S OWN NAME IN CONSTRUCTION CONTRACTS IN RETURN FOR LAND SHARE

Introduction

In construction contracts concluded in return for land share, landowners undertake to transfer a certain portion of their land shares to the contractor, while the contractor undertakes to construct the independent sections in accordance with the contract and the project and to deliver them to the landowners. In the event that the parties fail to perform their respective obligations, one of the statutory rights available to the parties is the institution of “performance in one’s own name (nama ifa)” regulated under the Turkish Code of Obligations No. 6098, which enables the creditor, in cases of non-performance of the obligation, to perform the obligation personally or through a third party.

The Concept of Performance in One’s Own Name, Its Legal Basis and Nature

Performance in one’s own name is a legal institution that allows the creditor, in cases where the debtor fails to perform an obligation to do or not to do something, to perform the obligation personally or through a third party at the debtor’s expense. Article 113 of the Turkish Code of Obligations states as follows:
“If an obligation to do is not performed by the debtor, the creditor may request authorization for the obligation to be performed by himself or by another person at the debtor’s expense; any right to claim damages is reserved. A debtor who acts in violation of an obligation not to do is obliged to compensate the damage caused by such violation. The creditor may also request the removal of the situation contrary to the obligation or authorization to do so at the debtor’s expense.”
This provision enables the creditor to keep the contract in force and to ensure performance of the obligation. Performance in one’s own name is an effective legal tool that may be used to protect the rights of the creditor and to ensure completion of the obligation in cases of non-performance.

Conditions for Granting Authorization for Performance in One’s Own Name

Certain conditions must be met for a request for authorization of performance in one’s own name to be granted:
The contract must still be valid and in force,
The construction must be carried out in compliance with zoning legislation,
The debtor must have failed to perform an obligation to do or not to do,
The request for performance in one’s own name must comply with the principle of good faith,
It must be possible and necessary to remedy incomplete or defective works,
Completion of the construction in accordance with the permit and the project must be achievable.
Even after authorization for performance in one’s own name is granted, the contract remains valid. This is because, even if the debtor’s obligations are performed by a third party or directly by the landowners within the scope of performance in one’s own name, the contractor’s responsibility to complete the construction continues. Accordingly, if the contract has been terminated prior to the filing of the action for authorization of performance in one’s own name, the court shall dismiss the case.
Situations such as failure to complete the construction, construction not being carried out in accordance with the contract, permit or agreed conditions, defective performance, or failure to obtain the building use permit (occupancy permit) even if the construction is completed are all considered as non-performance of the contractor’s obligation. Moreover, although specific deadlines are usually stipulated in construction contracts in return for land share, in cases where deadlines are not specified or have not yet expired but the work has been defectively performed, the contractor must also be put in default by way of a formal notice.

Parties in Actions for Authorization of Performance in One’s Own Name

In construction contracts in return for land share, a request for performance in one’s own name may be asserted by both landowners and contractors, as these contracts impose obligations on both parties.
Landowners may request authorization for performance in one’s own name in cases where the contractor is in default or has performed incomplete or defective work. For example, if the contractor has failed to complete the construction in accordance with the contract or has altered the project before completion, the landowner may request authorization for performance in one’s own name pursuant to Article 113 of the Turkish Code of Obligations. In this case, the creditor may request completion of the incomplete works and imposition of the expenses on the debtor. In addition, together with authorization for performance in one’s own name, the landowner may also claim compensation for damages suffered.
It should also be noted that third parties who are not landowners but have subsequently acquired ownership of independent sections do not have the right to request authorization for performance in one’s own name.
Likewise, the contractor may also request authorization for performance in one’s own name in cases where the landowner fails to fulfill his obligations. For instance, if the landowner unjustifiably revokes the power of attorney granted to the contractor or prevents continuation of the construction, the contractor may request authorization for performance in one’s own name under Article 113 of the Turkish Code of Obligations. This provides the legal basis necessary for the contractor to fulfill his obligation and secures the continuation of the contract.

Procedure and Points to Consider in Actions for Authorization of Performance in One’s Own Name

An application must be filed before the competent civil court of first instance to obtain authorization for performance in one’s own name. The claimant is the party requesting authorization for performance in one’s own name, and the defendant is the party who has failed to perform its obligation. The court determines the incomplete works, calculates the expenses and costs, and imposes them on the debtor.
In practice, two alternatives are considered for covering these expenses. These are completion of the incomplete and/or defective works through the proceeds obtained from the sale of independent sections, or depositing the expenses by the contractor. Indeed, during the proceedings, the claimant, namely the landowners, may request authorization for the sale of the independent sections allocated to the contractor. The proceeds obtained from such sale are then used to have the incomplete obligations performed by a third party. After offsetting the expenses, any remaining amount will give rise to a receivable in favor of the contractor.
The other alternative, as stated above, is the deposit of the expenses with the court by the contractor. Courts generally prefer the deposit of expenses rather than the sale of the contractor’s independent sections. However, if the expenses are not deposited by the contractor or if it is concluded that they will not be covered, the court may grant authorization for the sale of the independent sections upon the request of the landowners.

Legal Consequences of Authorization for Performance in One’s Own Name

With a decision granting authorization for performance in one’s own name, the creditor may personally complete the incomplete or defective works or have them completed by a third party. The expenses incurred in this process are imposed on the debtor. Pursuant to Article 113 of the Turkish Code of Obligations, expenses and risks are borne by the debtor. The Court of Cassation states that it is not necessary for all landowners to jointly file an action for performance in one’s own name, and that each landowner has an individual right of action. The institution of performance in one’s own name ensures elimination of grievances while preserving the effectiveness of the contract.

Conclusion and Evaluation

In construction contracts in return for land share, performance in one’s own name functions as a central legal tool in resolving performance-related issues. Article 113 of the Turkish Code of Obligations grants the creditor the opportunity to perform the obligation against a non-performing party while maintaining the balance of legal interests. Performance in one’s own name keeps the contract in force, protects the rights of the parties, and remedies grievances.
In practice, when the process of performance in one’s own name is carried out meticulously, legal certainty between the parties is enhanced. In particular, remedying incomplete or defective works and imposing expenses on the debtor enable effective protection of contractual rights for both landowners and contractors. Moreover, the scope of a request for performance in one’s own name is not limited solely to completion of the work, but may also include compensation for damages suffered by the parties, remedying incomplete works, and authorizations regarding financing of such works. In this respect, Article 113 of the Turkish Code of Obligations grants broad powers to the creditor while defining the responsibilities incumbent upon the debtor within a legal framework.

Yours sincerely,

Atabay Law Office

ACTION FOR CANCELLATION AND REGISTRATION OF TITLE DEED DUE TO MURIS COLLUSION

Introduction

One of the disputes frequently encountered in inheritance law is muris collusion, commonly known among the public as “concealment of property from heirs,” which arises after the death of the deceased. This situation occurs where the deceased, with the intention of depriving their heirs of property, transfers a real estate that they actually intended to donate by disguising it as a sale or a contract of care until death in the land registry. In such cases, the legal remedy to be pursued by the heirs is the filing of an action for cancellation and registration of the title deed due to muris collusion.

Legal Definition and Elements of Muris Collusion

Definition and Its Place in the Legal Order

Muris collusion is accepted as a type of relative collusion specific to inheritance law. This concept refers to the deceased concealing their true intention of “donation” behind an apparent “sale” or “contract of care until death.” In Turkish law, muris collusion is not expressly regulated by statute; however, it gained a legal basis through the Decision of the Grand General Assembly for the Unification of Judgments of the Court of Cassation dated 01.04.1974 and numbered 1/2. This decision eliminated legal uncertainty by granting all heirs whose inheritance rights are violated the right to file such an action.

The basis of an action for cancellation and registration of title deed due to muris collusion essentially lies in the fact that the collusive transaction does not meet the legally required conditions, constitutes an abuse of rights, and results in the usurpation of the heirs’ rights.

Elements Constituting Collusion

For a transaction to be characterized as muris collusion, four fundamental elements must coexist:

Apparent Transaction: A transaction carried out to deceive third parties and which does not reflect the true intention of the parties. This is usually a sale or a contract of care until death executed at the land registry. Due to collusion, this transaction is absolutely null and void.

Hidden Transaction: The transaction concealed behind the apparent transaction, reflecting the actual and genuine intention of the parties; in muris collusion, this is always a donation. However, since the donation of a registered immovable property is subject to an official form requirement, this hidden donation agreement is invalid due to lack of form.

Agreement of Collusion: An agreement between the deceased and the transferee that the apparent transaction will not be valid between them.

Intention to Deprive Heirs of Property (Intent to Deceive): As stated in the Unification of Judgments decision, the essential condition is that the deceased carried out the transaction with the intention of concealing property from the heirs.

Parties to the Action, Its Nature, and Scope

All heirs whose inheritance rights are violated, regardless of whether they are entitled to a reserved share, have the right to file this action. Each heir may file the action individually based on their own inheritance right. However, those who have waived their inheritance rights through an inheritance renunciation agreement, those who have rejected the inheritance, or those who have been disinherited cannot file this action. In such disputes, the defendant is the party to the collusive transaction who acquired the immovable property from the deceased. Claims of muris collusion cannot be asserted against third parties who acquired the immovable property in good faith by relying on the land registry records.

An action for cancellation and registration of title deed due to muris collusion is filed with the request to rectify an unlawful registration in the land registry. As a result of this action, the cancellation of the title deed not in the name of the deceased but in proportion to the heirs’ inheritance shares and its registration in their names is requested. According to the case law of the Court of Cassation, this action may only be filed for registered immovable properties. Transfers of movables or unregistered immovables cannot be the subject of this action.

In actions for cancellation and registration of title deed due to muris collusion, the competent and authorized court is the civil court of first instance at the location of the immovable property. Moreover, since heirs acquire ownership (a real right) upon the death of the deceased, this action may be filed at any time after death; therefore, the right to file the action is not subject to a statute of limitations.

Burden of Proof and Evaluation Criteria

Mechanisms of Proof and Freedom of Evidence

In collusion cases, the burden of proving the deceased’s intention to conceal property lies with the heirs who file the action. As the heirs are considered “third parties” to the collusive contract, they benefit from the principle of freedom of evidence. Accordingly, proof may be established by any type of evidence, including witness testimony, not limited to written evidence.

Indicators of Collusion in the Case Law of the Court of Cassation

The Court of Cassation has identified a number of “factual presumptions” and “indicators” to determine the intention to conceal property, including:

Age, Health Condition, and Need for Special Care: The age and health condition of the deceased at the time of transfer.

Gross Discrepancy Between Sale Price and Actual Value: The apparent sale price being significantly lower than the actual value of the immovable property.

Absence of Financial Need: The deceased’s lack of need for money at the time of the transaction.

Personal Relationships Between the Parties: Familial relationships between the deceased, the transferee, and the other heirs.

Proportion of the Transferred Property Within the Estate: The transferred immovable constituting a significant portion of the deceased’s total assets.

Differences Between Muris Collusion and Action for Reduction (Tenkis)

Muris collusion and actions for reduction differ in terms of their objectives, legal bases, parties, and procedures. An action for reduction is a legal remedy available where the deceased infringes upon the reserved shares of heirs entitled to such shares through unjust or fraudulent dispositions. While the purpose of an action for cancellation and registration of title deed due to muris collusion is to annul the invalid disposition and restore the immovable property to the estate (i.e., to the heirs), in an action for reduction, the heirs with reserved shares seek the return only of the portion corresponding to their reserved shares, not the annulment of the entire transaction.

As noted above, only heirs entitled to a reserved share may file an action for reduction; namely, under the Turkish Civil Code, this includes the spouse, children, grandchildren, and parents, whereas others have no right to seek reduction. Additionally, regarding limitation periods, an action for cancellation and registration due to muris collusion may be filed at any time after the death of the deceased, whereas an action for reduction must be filed within one year from the date on which the infringement of the reserved share is learned and, in any case, within ten years from the date of death.

These two actions also differ with respect to the property concerned. An action for reduction may concern both movable and immovable property, whereas an action for cancellation and registration due to muris collusion may only concern registered immovable properties.

Although there are many differences between these two actions, it is possible in practice to file them together in the alternative. This is because, in some cases, it cannot be determined prior to the collection of evidence by the court whether the deceased acted with the intent to conceal property. In such cases, all the conditions required for both actions must cumulatively exist, and the court will first examine the claim for cancellation and registration due to muris collusion; if no collusion or intent to conceal property is found, then the correction of dispositions and the protection of the reserved shares of heirs entitled thereto will be sought.

Conclusion and Evaluation

An action for cancellation and registration of title deed due to muris collusion is a vital instrument for ensuring equity in Turkish inheritance law. The success of such actions depends on the heirs’ ability to utilize the advantage of freedom of evidence and to demonstrate, together with all the characteristics of the concrete case, the factual presumptions shaped by the case law of the Court of Cassation. In practice, in order to ensure the broadest possible protection of heirs’ rights, it is a sound strategy to initially pursue cancellation and registration based on muris collusion and, in the alternative, to assert a claim for reduction to prevent potential loss of rights and to ensure procedural economy. Indeed, such actions aim to lift the veil between the apparent intention and the true intention of the deceased; achieving this objective requires a consistent narrative encompassing all details of the case and a meticulously constructed, strong, and multifaceted evidentiary framework. In this respect, actions based on muris collusion serve as a complementary safeguard protecting not only individual inheritance rights but also the fundamental balance and objective of justice in inheritance law.

Saygılarımızla,

Atabay Hukuk Bürosu

UNFAIR COMPETITION PRACTICES AND RIGHTS AIMED AT THE PROTECTION OF BUSINESSES

Introduction

The proper functioning of modern commercial structures depends on the existence of a free and fair competitive environment.
Today’s market conditions are built upon the presence and protection of free competition. While competition among businesses
enhances market efficiency, it is an activity that is defined by certain limits imposed by the legal order. Indeed, ensuring
that competition in a market is fair is at least as important as ensuring that it is free, in terms of protecting sustainability
and efficiency in the relevant market. Therefore, in order to safeguard fair competition, the legislator has introduced certain
limitations on free competition. One of the most significant of these limitations is the prohibition of unfair competition,
which reflects the principle of good faith—one of the fundamental principles of commercial law—into commercial life and is
regulated under Article 54 et seq. of the Turkish Commercial Code (“TCC”).

Unfair competition is a situation that negatively affects the economic activities and market positions of businesses and may
disrupt commercial order. The TCC grants businesses certain legal rights in order to prevent such damages and to protect fair
competition. Regulations on unfair competition serve as fundamental rules aimed at preserving trust, honesty, and transparency
in commercial life. These rules not only protect the economic interests of competing businesses but also secure consumers’
right to be accurately informed and support public order regarding the functioning of the market.

What Is Unfair Competition?

A free competition environment is of great importance for businesses in commercial life. It refers to the economic space in
which businesses can freely offer goods and services and compete with each other based on criteria such as price, quality,
and innovation. Free competition, as one of the fundamental elements of a market economy, ensures the efficient allocation
of resources, increases production and service efficiency, and maximizes consumer benefit.

However, the healthy functioning of this environment requires businesses to conduct their activities in compliance with the
principle of good faith and legal regulations. Otherwise, unfair practices such as misleading advertisements, counterfeit
products, defamation campaigns, and unlawful acquisition of trade secrets may arise. Therefore, the functioning of free
competition and the protection of public interest can only be achieved by simultaneously safeguarding fair competition.

In this context, unfair competition may be defined by the following core elements: the commission of an unfair and unlawful
act in a market, the abuse of economic competition, and the exposure of other businesses and/or consumers operating in the
market to damage or the risk of damage. It should also be noted that the existence of a competitive relationship between the
perpetrator and the victim of the act causing unfair competition is not mandatory.

The institution of unfair competition is a highly significant regulation in commercial life, aimed at protecting businesses’
economic interests and market order. The act giving rise to unfair competition must inherently carry an economic value. Acts
that do not aim to generate income cannot constitute unfair competition. For unfair competition to occur, an economic
interest must have been violated or exposed to a risk of violation. Situations giving rise to unfair competition are listed
under the law.

Forms of Unfair Competition

Article 55 of the Turkish Commercial Code regulates acts constituting unfair competition by way of examples and lists the
principal situations that may be encountered in commercial life. The main forms of unfair competition include:

Engaging in advertisements, sales methods, or other unlawful conduct contrary to the principle of good faith:
Making false, misleading, or unnecessarily offensive statements to disparage others or their goods, services,
prices, activities, or commercial affairs.
Making false or misleading statements about one’s own business, goods, services, prices, stocks, sales campaigns,
or business relationships.
Creating the impression of possessing qualifications such as diplomas, awards, or titles that do not actually exist.
Creating confusion with the goods, services, activities, or commercial affairs of others.
Making misleading or unfair comparative advertisements or announcements.
Presenting products or services to customers in a misleading manner by means of additional benefits that distort
their actual value.
Misleading customers by concealing the characteristics, quantity, intended use, benefits, or risks of goods,
services, or activities.
Restricting customers’ freedom of decision through aggressive sales methods.
Failing to clearly indicate the trade name, cash or total sales price, and additional costs in public announcements
regarding installment sales or consumer loans.
Providing incomplete or incorrect information in installment sale or consumer loan agreements.

Inducing breach or termination of contracts:
Encouraging customers to breach their existing contracts and enter into contracts directly with oneself.
Inducing employees or agents of third parties to act against their employers or principals by offering benefits.
Encouraging employees, agents, or assistants to disclose or obtain their employers’ or principals’ production or
trade secrets.

Unauthorized exploitation of others’ work products, in particular:
Using entrusted offers, calculations, or plans without authorization.
Using third parties’ work products while knowing that they were provided without authorization.
Unauthorized reproduction and use of others’ ready-made works.

Unlawfully obtaining, disclosing, or communicating production and trade secrets.
Non-compliance with business conditions.

Rights of Businesses Against Unfair Competition

Since unfair competition negatively affects businesses’ economic activities and market positions, the Turkish Commercial
Code grants businesses various rights against such situations. These rights aim both to prevent unfair competition and to
remedy damages suffered. Generally, these rights may be classified as: (i) prevention of unfair competition, (ii) the right
to compensation, (iii) legal measures, and (iv) annulment/destruction claims.

Right to Request Determination of Unfair Competition:

The right to request the determination of unfair competition is one of the most fundamental legal protection mechanisms
for businesses. This right enables a court to determine that the act constituting unfair competition has occurred, is
unlawful, and violates the principle of good faith.

Right to Request Cessation and Prevention of the Unfair Competition Act:

If the unfair competition act is ongoing, affected businesses may request the court to immediately cease such activities.
With the court’s cessation decision, the unfair competition act is terminated without delay.
Even if the unfair competition act has not yet occurred but poses an imminent risk, businesses may request its
prevention. Requests for cessation and prevention are often evaluated together with requests for interim injunctions.

Right to Request Restoration of the Situation Prior to Unfair Competition:

A business may request the elimination of the circumstances that caused unfair competition. Restoration to the former
state is not limited to material aspects but is also intended to restore the business’s commercial reputation and re-
establish disrupted market balance.
Such requests may include correction of misleading advertisements, recall or destruction of counterfeit products,
rectification of statements damaging reputation, and elimination of unjust gains.

Right to Claim Material and Moral Damages:

A business may claim material and moral compensation to recover damages suffered due to unfair competition.

Right to Request Transfer of Unjust Gains:

If unjust gains have been obtained as a result of unfair competition, the injured business may request that such gains
be transferred to itself.

Right to Pursue Criminal Sanctions:

Pursuant to Article 62 of the TCC, prosecution of this offense is subject to complaint. Persons or entities that have
suffered damage or are under the risk of damage may file a complaint within the general complaint period of six months.
In cases of unfair competition, Article 62 of the TCC provides that natural persons may be subject to up to two years
of imprisonment or a judicial fine. These sanctions are alternative, and the court applies the one it deems appropriate.
Security measures shall be imposed on legal entities. It should be noted that, pursuant to Article 60 of the Turkish
Criminal Code, such security measures apply only to private law legal entities; public law legal entities are excluded
from this scope.

Conclusion and Evaluation

Unfair competition is an institution regulated under Articles 54–63 of the Turkish Commercial Code, aiming to ensure the
healthy functioning of the competitive order by preventing conduct contrary to the principle of good faith in commercial
life. The legal remedies granted to affected businesses aim to eliminate the existing effects of unfair competition and
prevent potential damages. Criminal sanctions under the TCC enhance deterrence and strengthen the competitive
environment. The effective application of unfair competition provisions not only protects the rights and interests of
businesses but also contributes to the reliable and sustainable functioning of the economic order. Therefore, it is
important for businesses to act in compliance with the principles of fair competition and to timely and consciously
exercise the remedies granted to them in the face of unfair competition.

Saygılarımızla,

Atabay Law Office

TAKING THE ACTUAL VALUE AS THE BASIS IN ACTIONS FOR CANCELLATION AND REGISTRATION OF TITLE DEEDS AND THE PROTECTION OF THE RIGHT OF ACCESS TO COURT

Introduction

In its decision dated 23.10.2024 with application number 2021/46030, the Constitutional Court examined the allegation of a violation of the right of access to court raised through an individual application. The case subject to the decision was shaped around the rejection of the appeal application on the grounds that the valuation made by the court of first instance remained below the monetary finality threshold for appeal in an action for cancellation and registration of title deed arising from the violation of the right of pre-emption. The Constitutional Court emphasized that the right of access to court is not limited solely to the possibility of filing a lawsuit; it also encompasses the ability to apply to legal remedies in an effective, foreseeable and practically usable manner, and evaluated the consequences of the application of the monetary threshold in the concrete case in terms of the right of access.

Examination of the Decision Rendered by the Constitutional Court

In the case brought before the Constitutional Court, following the sale of a share in an immovable property subject to joint ownership by one of the co-owners to a third party, another co-owner filed an action for cancellation and registration of title deed alleging a violation of the right of pre-emption. The court of first instance ruled for the cancellation of the applicant’s share in the immovable property and its registration in the name of the plaintiff, and further ordered that TRY 5,100, determined on the basis of the sale price shown in the official deed at the time of sale, be paid to the applicant upon finalization of the decision. The applicant applied to the appellate remedy against the decision; however, the Regional Court of Appeal rejected the appeal on the grounds that TRY 5,100 was below the monetary finality threshold for appeal.

The right of pre-emption is a right that becomes exercisable upon the sale of a share to a third party in immovable properties subject to joint ownership, granting other co-owners the authority to purchase the sold share with priority. In the decision under review, the applicant is the third party who purchased a 1/16 share in the immovable property. As understood from the decision, there is a discrepancy between the sale price shown in the title deed and the amount actually paid in the concrete case.

According to the determinations of the court of first instance, the amount paid via bank transfer was TRY 100,000.00. In addition, the expert report obtained by the Court stated that the value of the plaintiff’s 848.04 m² share was TRY 370,000. Although the value of the applicant’s share was not separately stated in the report, it is understood that the applicant’s share was 516 m². Based on these data and the proportional calculation, it is assessed that the value of the applicant’s share could be approximately TRY 225,139.52.

Despite this, although bank receipts were present in the file, and notwithstanding that in line with the case law of the Court of Cassation the actual value of the immovable property should be determined ex officio through expert examination and the assessment should be made by completing the court fees based on this value, judgment was rendered on the basis of TRY 5,100 as shown in the official deed. As a result of this approach, appellate review could not be conducted due to the monetary finality threshold. The Constitutional Court considered this chain effect as a violation of the right of access to court under Article 36 of the Constitution and ordered a retrial in order to remedy the consequences of the violation.

Conclusion

With this decision, the Constitutional Court clearly set forth that in actions for cancellation and registration of title deeds based on the right of pre-emption, courts are obliged not to confine themselves to the price shown in the title deed, but to ex officio investigate the actual sale value of the immovable property and determine it through expert examination. Rendering decisions without completing the court fees based on the actual value and solely on the basis of the low price shown in the title deed, and leaving such decisions outside appellate review due to the monetary finality threshold, constitutes a violation of the right of access to court. In this respect, the decision constitutes an important precedent emphasizing that the material truth must be taken as the basis in immovable property law and that the safeguards of legal remedies must not be rendered ineffective.

Saygılarımızla,

Atabay Hukuk Bürosu

Non-pecuniary compensation lawsuits are a type of lawsuit in which individuals claim, through the court, compensation from those who caused the moral damage they have suffered. In order to be entitled to file a non-pecuniary compensation lawsuit, it is not necessary for the person from whom compensation is claimed to have caused a material loss with a monetary equivalent. Within the framework of the incident subject to the compensation lawsuit, non-pecuniary compensation is claimed in cases where the person falls into grief and sorrow, and where the person’s personal rights are harmed due to their human dignity. Non-pecuniary compensation lawsuits are based more on moral damages than on material facts. In summary, individuals must have been psychologically affected as a result of an incident.

What Is a Non-Pecuniary Compensation Lawsuit?

In non-pecuniary compensation lawsuits, in order for the relevant right to arise, an application is made to the competent and authorized court with a petition under the title of non-pecuniary compensation, either personally or through an attorney holding a power of attorney, for the purpose of calculating the compensation amount and claiming it from the person who committed the wrongful act. This written application is called a non-pecuniary compensation lawsuit.

There are certain situations and conditions required to file a non-pecuniary compensation lawsuit. These situations are listed below.

• A person who is cheated on by their spouse may claim compensation in addition to a divorce lawsuit,
• In cases of breach of contract, the injured party may claim compensation,
• If a person is involved in a crime, the victim may claim compensation,
• If a person feels sorrow, grief, and distress due to a wrongful act, they may claim compensation,
• If an employee experiences events such as loss of strength, loss of limb, or long-term and painful hospital treatment as a result of a work accident, they may claim compensation from their employer,
• The owner of the copyright of a work may file a non-pecuniary compensation lawsuit as a result of a copyright infringement,
• In cases such as incorrect treatment applied in a clinical environment, patients may claim compensation from their doctors,
• A person may file a non-pecuniary compensation lawsuit as a result of being subjected to an insult.

If you wish to file a non-pecuniary compensation lawsuit based on the reasons listed above, you may contact an expert Izmir compensation lawyer.

What Are the Conditions for Non-Pecuniary Compensation?

A number of conditions must be met in order to file a non-pecuniary compensation lawsuit. If you are faced with the situations mentioned in the paragraph above, you may contact Izmir lawyer offices to file a non-pecuniary compensation lawsuit. Since the competent court examines compensation lawsuits from all aspects, it evaluates whether the conditions listed below are met.

• The unlawfulness of the act committed must be clearly stated within the framework of the law.
• A moral damage must have arisen as a result of the act committed.
• It must be clearly stated whether an attack has been made on the values accepted as personal values of the individual.
• The persons responsible for the act must have fault, or one of the cases of strict liability stipulated by law must exist.
• An appropriate causal link must exist between the act committed and the moral damage that occurred.

In order to file a non-pecuniary compensation lawsuit, the conditions presented above must exist. If you wish to file a lawsuit based on these conditions, you should work with an expert lawyer.

After these non-pecuniary compensation conditions are met, filing a non-pecuniary compensation lawsuit before the competent and authorized courts is also one of the fundamental requirements. Before filing the lawsuit, the claim for non-pecuniary compensation, including evidence showing that the compensation conditions are met, must be prepared and submitted to the court together with the required fees and expenses. Defendants receiving such claims often argue that the criteria for moral damage have not been met. It should not be forgotten that whether the court will decide to award compensation depends on the non-pecuniary compensation conditions mentioned here. Therefore, this is one of the most important issues in the lawsuit process. However, the amount of non-pecuniary damage and how it is calculated is also one of the important details. You can easily make calculations under the heading “How Is Non-Pecuniary Compensation Calculated?”

How Is Non-Pecuniary Compensation Calculated?

Within the framework of the law, there is no mathematical formula for calculating the amount of non-pecuniary compensation. In such lawsuits, the subject matter is not a material loss, but the sorrow and grief suffered by individuals. While material compensation lawsuits are subject to the prohibition of unjust enrichment, this is not the case for non-pecuniary compensation lawsuits. In addition, the amount to be claimed in lawsuits is determined in line with certain criteria. When calculating the amount of non-pecuniary compensation, the competent courts take into account the criteria listed below. These criteria mainly include:

• The financial status of the plaintiff and the defendant subject to the lawsuit,
• The manner in which the incident giving rise to the lawsuit occurred and other special circumstances,
• The degree of fault of the parties depending on the claim,
• The extent of the victimization and pain suffered by the plaintiff.

Depending on the circumstances of the events listed above and the required actions, non-pecuniary compensation claims are evaluated. Filing a non-pecuniary compensation lawsuit may be accepted by the judge if the amounts stated in the petition are realistic. If the amount submitted to the court is below or above the calculated amount, the court may reject the claim. For this reason, you may ensure that all your lawsuits are followed up easily by working together with an expert Izmir compensation lawyer.

What Is Trade Union Membership? In this content, we will provide information on what trade union membership is, as well as membership inquiry and suspension situations. The Trade Union and Collective Bargaining Agreement Law No. 6356 entered into force in 2012. With this law, the principles regarding the management, supervision, functioning, organization, and activities of worker and employer unions and certain organizations are regulated, as well as the principles enabling workers and employers to conclude collective agreements in order to determine their mutual social and economic conditions and working conditions.

How Is Trade Union Membership Inquiry Made?

Trade union membership inquiry is one of the procedures that every citizen should periodically check and monitor. With the developing technologies in our country, you can easily and quickly learn whether you have a trade union membership through the e-government application. Trade union membership information is recorded in e-government systems. If you would like to obtain information about trade union membership inquiry procedures, you can follow the instructions below.

First of all, in order to inquire about your trade union membership, you must have an e-government password. If you do not have an e-government password, you can obtain one by going to the nearest PTT branch with your identity card. With your e-government password, you can easily make an inquiry by accessing turkiye.gov.tr and typing “Worker union membership procedures” or “Employer union membership procedures.”

Trade union membership inquiry procedures can be carried out online, as well as by phone. By calling the 160 hotline from your mobile phone and using your e-government password, you can easily complete your Trade Union Membership Inquiry procedures.

How Is Trade Union Membership Cancellation Made?

Just as membership can be easily obtained, cancellation procedures can also be carried out easily. Withdrawal from unions is regulated under Law No. 4688 on Public Servants and Collective Bargaining Agreements. According to these provisions:

• Every member may easily withdraw from union membership.
• A public servant who wishes to withdraw from membership must fill out the cancellation form in three copies and sign the required sections. After completing the required documents in full, the public servant may submit the documents to the relevant institution to complete the membership cancellation. The union officials receiving the documents provide the member with a signed copy of the withdrawal document bearing the date and registration number.
• Withdrawal from membership becomes effective within 30 days after applying to the public employer. During this period, the person may join another union only after the period expires.
• A decision to expel a member from the union is made by the union central executive board. The expulsion decision is notified in writing to the expelled person and the employer. Members may object to the expulsion decision within fifteen days from the date of notification. The court renders its final decision within two months. Membership continues until the expulsion decision becomes final.
• Union branch, federation, or confederation memberships, positions, and assignments to different service branches, as well as the memberships of federation members and their duties in federation branches and union bodies (as applicable), expire when their terms end; however, their obligations to the confederation, if any, continue. The duties of retirees in union branch, federation, or confederation bodies continue until the end of the term for which they were elected.

The continuation or suspension of membership is explicitly regulated under Law No. 2821 on Trade Unions.

In Which Cases Is Trade Union Membership Suspended?

Trade union membership is suspended in certain cases. The general circumstances regarding suspension are listed below.

• The union membership of members who change their line of work automatically terminates.
• The membership of a worker union member is suspended during periods of unemployment exceeding one year.
• If a member is called to arms due to compulsory military service, the membership relationship is suspended.