ABSTRACT
The contract law has become more important
as a result of the scientific and technological
developments which have increased complexity of relationships between persons or institutions. Because of the fact that the contracts
become binding upon the parties’ signatures, it
carries an importance to act with a “win-win”
ideology and to reflect the mutual will of the
parties without making the contracts unilaterally advantageous. In the event of a contract
being concluded only in the interest of one
party and / or the deception of the will of a
party, the law should provide the opportunity
to protect and use the rights of the victimized
party among the equals. Accordingly, Turkish
Code of Obligations numbered 6098 (“The
Law no 6098/TBK”) introduced certain regulations on disability of will and “lesion”.
I. INTRODUCTION
The provisions of contracts are regulated in
the first subsection of the first part of Law no
6098 under the title “The Relations of Conventional Obligations”. The contract, despite
the fact that it is not clearly defined in Law
no 6098, the doctrine defines it as an appropriate and mutual will of the parties. The first article of
Law no 6098 regulating the general terms of forming a
contract is articulated as follows: “The contract is formed
with the mutual and respective expression of the parties’
will. The explanation of will can be explicit or implicit.”
Accordingly, in order to draw up a valid contract, mutual
and appropriate declarations of parties’ should exist and
the parties have to have ability to enter into a contract.
If there is no declaration of will, forming a contract is
impossible. Any action of a party aiming to declare his
the intention to draw up a contract constitutes declaration of will1. There must be a mutual and coherent will
for entering into a contract. The first of the required
will declarations is called the offer and the second one
is called the acceptation. Offer is a one sided declaration
which needs to be received by the other party. This suggests the desire of the offeror to form a contract with the
other party. Acceptation on the other hand, is a positive
response to the proposal.
Acceptation can be explicit or implicit. If the acceptation
is clearly declared, in other words if it is understandable
without hesitation, that is called explicit acceptation.
However, if it is not obvious that the other party accepts
the offer, but it can be deduced from the current situation and behaviors, there is implicit acceptation2.
Remaining silent to an offer shall mean that it is rejected.
However, article 6 of TBK regulates an exception to this
by stating that “If the offeror cannot be expected to wait
for an explicit acceptance due to the legislation or the nature of the works, the offers which are not rejected in a reasonable time shall be deemed accepted.”
In principle, offer and acceptance are not subject to a
specific form. Therefore, the contract can be formed in
verbal or written form and, the acceptance declaration
can be send to the offeror via a reporter or a representative can declare the will. Since the offer and acceptance
declarations must be coherent to form a contract, in case
the wills are not coherent, they must be interpreted and
the theory of trust must be implemented. In such casesTurkish legislation includes provisions on lesion and
willpower injures in order to prevent unjust treatments.
The lesion and willpower injures which can be affective
for contract are the main subjects of our article and they
are discussed in detail through the case law of the court
of Appeals and view of Doctrine.
II. OVER BENEFITING (LESION)
A. Definition
Lesion means, exploitation and over benefiting3 and it is a word of Arabic origin4. According to Schwarz, “There is lesion if the manner and respond manner are disproportionate and inequivalent, a high commitment is made for the relatively low downward response or on the contrary, is disproportionately high5.
Tunçomağ, states when manner and respond manner are disproportionate, high manner for low manner or on the contrary undertaking low manner for high manner means lesion6.
Considering the definitions given above, it is seen that the gab is only based on the objective element.
Considering the definitions given above, it is seen that the lesion has been defined on the basis of objective element. Objective element is explained as a clear disproportionate in bilateral contracts. However, the subjective element as well as the objective element should be considered. The subjective element is the exploitation of a weaker position, the intent of exploitation of the exploiter. When the subjective element does not exist, there would not be a lesion. In other words, the clear disproportionate in bilateral contracts does not solely affect the validity of the contract. The existence of other circumstances such as the subjective elements is required for the cancellation of the contract7.
As a matter of fact, based on the elements mentioned in Turkish law, “gabin” legislation differs in terms of conceptual and semantic terms according to other definitions. Regulation “The Content of Contract” (article 26) in TBK continues with precise invalidation (article 27) and lesion subjects (article 28). The article 28 about lesion reads as: “If there is a clear disproportion between mutual acts in a contract, if such disproportion is realized by taking advantage of the harm situation or the lack of experience or lack of experience of the injured person, the injured shall notify the other party by reporting the may ask to eliminate the disparity between the acts. The injured may exercise his rights starting from when he learned about this thoughtlessness or inexperience; and starting from the date of disappearance when in a difficult situation, within a year and in any case within five years starting from the forming of the contract”.
Hereby, legislator imposes some restrictions on the freedom of the contract. These limits of the contract are about the mandatory provisions of the law, morality, public order and a violation of personality rights, as the subject of the contract between the acts of the parties and the situations of lesion which are connected to a clear disproportionate. The legislator with this regulation aims to prevent the abuse of contractual freedom by the protection of the weaker side of the contract in the case of a lesion8.
Considering the doctrine opinions and the issue of lesion in our legislation, it is possible to describe the lesion as “Exploitation by creating a clear disproportion between the realities by taking advantage of the hiffet (unwarranted) or the inexperience of one of the parties in bilateral contracts9.
B. Legal Nature of the Lesion
Article 28 of Law no. 6098 states that in a contract, if a party creates an excessive disproportion between the acts by making use of the difficulty, inexperience or lightness of the other party, the injured party has the right to demand the cancellation of the contract or the elimination of the disproportion between the acts according to the nature of the situation. The injured may exercise his rights starting from when he learned about this thoughtlessness or inexperience; and starting from the date of disappearance when in a difficult situation, within a year and in any case within five years starting from the forming of the contract.
There are different views in Turkish and Foreign Doctrine about the legal nature of the lesion. With “the view which accepts the lesion is one of the injury cases will” and “the view which accepts the lesion is restriction for freedom of the contract” of the legal nature the lesion is being assessed.
In view of the fact that it is one of the states that are injured by the will, the lesion is considered one of the mistakes, deceptions and intimidations of the willpower. In this view, the legal consequence is attributed not to lesion itself but it being the error is a state of a disability in terms of will10. This view has been criticized for the fact that it is difficult to measure the impact power of consent as there will be no equality between the parties and therefore the presence of the lesion will not necessarily show that the will has been disabled11.
In the opinion that there is a limitation on the freedom of contract, lesion is seen as a reason that disrupts the subject of the contract by considering only the contract subject without considering the will of the parties. According to the supporters of this opinion, the lack of “goodness” that should be found in every contract is a cause that distorts the equivalence between the acts. This view has been criticized for the difficulty in the discretion of the disparity between the acts, for the fact that the counter-act cannot be appreciated for the personal benefit of the other party, in particular for the commercial life12. This view has divided in two parts.
The first one of these, the view that the lesion is a typical immorality. According to this view’s supporters in Doctrine, legislator has determined the border to the freedom of contract by goodwill and morality13. The lesion is immorality due to the awareness benefit14.
Second one, the lesion is a border because of social purposes. By the authors who support this view, the lesion on the basis of a moral idea, although for the purposes of the social limitation to the freedom of contract. That is why lesion is a different establishment separate from the immorality15. As a matter of fact, Schwarz states by supporting this view, the lesion regulates under a different title in Swiss-Turkish Law different from the German Law and be snapped off from immorality16.
As a result, when the views about the legal nature of the lesion are considered together, the main reason for the acceptance of the lesion in our law is the social thoughts.
Even though the institution of lesion is thought to be due to the effect of social thought, the rule of morality and honesty is also effective in the occurrence of this institution. In fact, one side of the contract by benefiting from a particular weakness of the other party to benefit from and exploit it shall be contrary to the rule of both morality and honesty. So lesion, with moral and social thoughts, is considered as a reason for cancellation17.
C. ELEMENTS OF LESION
The main rule in Turkish Law is the freedom of the contract. The limitation of this right in certain circumstances as exceptional, when the some kind of elements are together in case is possible. Considering that the institution of lesion is an institution that can limit contracts, the fact that the lesion element can occur is due to the coexistence of a number of conditions. The disproportion between the acts for the acceptance of overexploitation alone is not considered sufficient; it is also assumed that there should be some elements18.
Doctrine has no consensus about the elements of lesion. Some of authors accept disproportion between deeds as an objective element and miserability, chastity and inexperience as a subjective element and examine those elements by separate in two parts19. Some other authors, accept disproportion between deeds is objective element; some kind of situations just like miserable, chastity and inexperience is subjective element in terms of weaker part; lesion and exploit are subjective element for opposite part, likewise they accept three element in establishment of lesion20.
Swiss-Turkish Obligations Codes prefer to get border of establishment of lesion by taking samples in German Code of Civil Law. In this regard, our legislation needs just objective and subjective element together for claiming existence of lesion. When these two elements aren’t together, there will not be mentioned existence of lesion within our legislation. There are different types of High Court’s decisions about it21.
1. Objective Element
The objective element of over-exploitation is the disproportion between mutual acts. In Article 28 of the Law No. 6098, the expression of “disproportionate” in the expression of “if there is a clear disproportion between mutual acts in a contract” is the element of the contract. Although the aim of the lesion institution is to maintain a balance between actions, it cannot achieve full equality between the acts, and cancellation of contracts just because of disproportionate might eliminate trust, stability and order in commercial life. For this reason, it is required that this disproportion is large and clear in order to create an objective element of the lesion22.
In practice, the disproportion is determined by taking into consideration the market conditions at the date of establishment of the contract and at the place where the contract is formed. However, if the balance between the actions is broken after the establishment of the contract, excessive exploitation will not be mentioned. In such cases, only the adaptation of the contract to changing conditions may be considered23.
Although, “Clear disproportion” statement is indicated in our legislation what should be understood from it does not. According to Doctrine, clear disproportion means imbalance attracting everyone’s attention from an objective point of view at a glance. Disproportion needs to be clear as much as everyone gets easily, as much as no one can deny24. So when clear disproportion interpret to in accordance with quality of disagreement makes establishment of lesion use more balanced in case of description in boundaries.
Although the objective elements are not identified in the law, the High Court and Federal Court’s decisions take cares it in their certain rates25. The Supreme Court26 of Appeals recognizes that if there is a 50% or more difference between the acts, the disproportionate requirement will be deemed to have been fulfilled. Again, the Court of Cassation, a difference of less than 25% cannot be described as a disproportion. In this case, the discretion of the judge in practice shall be limited by the Supreme Court only when there is a disproportion between 25% and 50%27. The ratios in question exists in practice but they are not binding for the judge. Nevertheless, the judge should take care of the whole aspects of the file when rendering a decision about the existence of a clear disproportion28. The judicial discretion of the judge is about the time which is the disproportion between deeds occur is the moment of inception of the contract in doctrine and High Court. Because the objective condition must be exist in the moment of inception of the contract29. The objective values determined according to the establishment of the contract are the criteria for evaluating the disproportion. Therefore, the subjective value given by the parties to the acts is not taken into consideration30. In this respect, one of the parties is not in a special position at the stage of contract execution. Therefore, at this stage, excessive exploitation provisions will not be applied. In this case, the conditions of the contract may be adapted to the changing conditions. Another issue that needs to be considered in determining the disproportion between acts is that the judge will compare the actions undertaken with the contract and not the executed one31. Inability to discharge or incomplete execution subject for not executing obligations and bad executing which are state in article 112 and continue in Law no 6098.
2. Subjective Element
Disproportion between deeds is not adequate for happening lesion, there are two more element which are required32. These two element; being weak condition for one part and the other part gets benefit from it likewise happening lesion.
3. Being in a Weak Condition
The fact that one of the parties is in a difficult situation does not have the power of discriminating the weak situation, but rather leads to a disadvantageous contract for itself. Article 28 in Law no 6098;
“If the contract has clear disproportionate between and this disproportionate is about the injured because of strand or thoughtlessness or inexpertness, injured one may report that s/he isn’t connected with the contract to the other part and want the manner back or want elimination about disproportionate between deeds and the contract is still exist. Injured one may use this right when s/ he learn about thoughtlessness or inexpertness; when in strand start from the date which is the disappearance of the situation in one year and start from the date of the beginning of the contract in five year.”
by issuing in the form of shows some situations as mentioned “poor/weak”. When one of those situations exist, the part who is in a poor/weak condition can cancel the contract according to article 28. In this case, the poor/ weak part is not taken into consideration whether it is the side with the hard case.
The Situations (Being in a Difficult) in Law
In terms of being in a weak condition one of the part, Law no 6098 registries; miserable, chastity and inexperience situations.
a. Miserable Situation
Miserable situation in case of a person staying in a difficult situation financially as the case may be, the psychological (personal) situation is also possible.
We believe that it is of interest to reiterate that the weak situation is not defective in the difficulty of falling into the difficult situation, and it does not matter in terms of accepting the existence of the difficult situation33.
The most significant point in being in a difficult situation is; when the person thinks her/himself in a difficult situation but in case of not in it cannot have a cancelling right by having benefit with this conception about the contract which has disproportion between deeds.
b. Chastity
Chastity is moving carelessly, without thinking while making a contract34. If the person doesn’t have discrimination power this case doesn’t provide lesion which chastity situation35. With regard to happening chastity element being in a chastity situation generally is not adequate, being in a chastity situation for the action in question will be adequate36.
c. Inexperience
Inexperience in terms of lesion (over-exploitation) means not having sufficient knowledge and experience in terms of contract. Particular consideration in the assessment is not general inexperience and inexperience in the subject of the contract37. The lack of consideration of general inexperience in this aspect allows a person with general experience to claim excessive exploitation on the basis of inexperience in terms of contract.
Lack of information can be related legal, economic or technical areas. That is why, the view which is not evaluating legal ignorance and not inexperience is not accurate even if it is related to the contract38.
III. TERMS AND CONSEQUENCES OF LESION
In Law No. 6098 article 28/1., according to the nature of
the situation is not connected with the contract to notify the other party by giving back the act or contracting
the disparity between the actions may be asked to be removed. In this context, the law gives an electoral right,
either in whole or in part, to the exploited party in case
of excessive exploitation. According to the nature of the
situation, one of these electoral rights may be preferred
by the injured. In addition, the damaged, due to the
damage caused by the lesion can demand compensation.
Innovation is used with the declaration of will to have
the right to cancel the qualifying nature, and the results
will be produced by reaching the opposite side. This
right does not need to be sued because it is realized with
a statement of innovation. Cancellation can be made explicitly or implicitly. If the right of cancellation is tried
to be used by a lawsuit, the decision of the judge who will give the results of the petition to the other party and the
results will be a determination clause. The contract shall
not be effective by the decision of the court, but by the
cancellation of the injured.
The prescribed time limit for using total and local cancelling right which arranged as optional is stated “conditions of the situation” in article 28/1 in Law no 6098.
According to this, injured party should make a choice
from one of these cancelling rights by considering about
conditions of the situation.
The right of cancellation must be used within one (1)
year starting from the date of the abolition of this situation, in which the thoughtlessness or inexperience of
the injured person is learned and in case of being in a
difficult situation. The point to be considered here is the
starting date of the rights reduction period. In accordance with Article 28/2, one (1) year lowering period begins to operate as of the date when thoughtlessness or
inexperience has been learned or the situation has been
removed. The right of cancellation must be used within
five (5) years from the date of the contract in any case.
Another issue is the compensation of the damage. The
source of the request for compensation of damages arising from over-exploitation of Turkish and Swiss law is
based on the culpa in contrahendo of contract negotiations39. Excessive exploitation of the party is under the
obligation to compensate for the harm caused by this behavior which is contrary to the trust relationship. Damage caused by harm to be claimed is the negative damage40. In other words it means compensation for damage
due to the loss of trust in contract.
IV. WILLPOWER INJURES (ERROR - CHEAT - THREAT)
The basic elements for the validation of the legal process are the will, the declaration of will and the legal outcome. However, although a legal transaction includes the three elements, some disorders that may occur during the formation phase of the will or the disclosure of this will (declaration), deficiencies resulting from incompatibilities may result in consequences affecting the validity of the legal transaction41.
Will disability is defined in two ways as broad and narrow. In the narrowest sense, the disability will take place during the formation of the will for the legal process. In other words, it is the existence of disability in direct will. In the broad sense, the disability will include disabilities in the declaration except for the disabilities (error - cheat - threat) during the formation phase of the will. We will discuss the relationship between lesion and error, cheat and threat, which are the most important factors affecting the will.
A. ERROR
Misapprehension with another word error is formed of article 30 in Law no 6098: “The part who is in fundamental misapprehension when the foundation of the contract, doesn’t connected with the contract” formed like this. However; misapprehension should be fundamental for becoming invalid, article 31 in Law no 6098 explains the situations of fundamental misapprehension; (i) declaring will for another contract differ from the contract that asked to make, (ii) declaring will for subject differ from wanted, (iii) declaring will to someone differ from wanted person in real, (iv) if there is will declaring for another person differ from the person who has specific quality while making a contract and (v) declaring will for more deed than wanted in real or less opposite deed differ from wanted in real. Principle of numerous clauses no longer exists in fundamental misapprehension so these situations is not limited in law as a matter of fact specifically it mentioned for these situations as a fundamental. If the failing part the wrong motivation accepts as a main topic of the contract in frame of relationships of business and if this is predictable for opposite part invalidity of the contract will be mentioned. When the misapprehension is fundamental according to Law no 6098 failing part can declare the contract is invalidity and doesn’t connected to the contract in one (1) year. There are a lot of High Court’s Judgement about one foreclosure year in terms of situation that cause injury willpower.42
It is important to note that a person’s flaw in error does not prevent him from exercising his right of revocation. However, pursuant to Article 35 of the Law no. 6098, it may lead to an obligation to compensate the other party due to invalidity of the contract. The damages to be compensated are damages caused by the invalidity of the contract that is trusted by its validity. In other words, if the canceled contract was not done at all, it would be the (negative) loss. In cases where equity requires, the judge may award further compensation under the Law, but this compensation amount should not exceed the positive damage (TBK 35/2). In case of error in the doctrine, there are discussions about the quality of the compensation responsibility. According to an opinion, in respect of this responsibility, the provisions on the compensation of tortious acts shall be applied; According to another opinion, the provisions of violation of debt should be applied. However, it should be noted that the second opinion brings the compensation creditor to a more favorable position in terms of the burden of proof and the statute of limitations. We would like to point out that if the other party knows or knows that a party is wrong, the party to pay compensation will be eliminated.
B. DECEPTION - TRICK
Deception; it is a deliberate reduction of a person’s fault. In a decision of the Supreme Court of Appeals concerning the terms, conditions and procedure of deceit; the concept of cheating should be emphasized: The meaning of the word means cheating, deception and misleading. Cheating in the sense of law of obligations is a concept that must contain certain elements and only in this case affect the validity of the contract43.
In order to be able to speak of the fraud, the following elements must be present: a behavior directed towards the counterparty, the purpose of the fraud, the establishment of the contract and the causal link44. This effect may arise in the form of a full establishment of the contract (the original fraud) or in some of the provisions of the contract (fraud). Either way, the trick can be mentioned. Recognition of the right to cancel the contract to anyone exposed to fraud, he suffered a heavy damage, but due to the pressure on his will, the freedom of the will has been lost. It should be noted that cheating can be proved by any evidence. Because there are exceptions to the rule of proof against the obligation to prove against the counter, and the claims, fraud and suspicion are among these exceptions45. Deception is regulated in article 36 in Law no 6098.
According to this, conditions for not being bound with the contract: (i) A party to be misled about making a contract i.e. misguided with opposite party’s behavior, (ii) misapprehension on purpose, (iii) cheat cause making a contract and (iv) the behavior that accepted as a cheat is to be done by part of the contract or the person who gets help to this part while making a contract. The fact that the deceit was carried out by a third party would also affect the validity of the contract, but in this case, in addition to the first three conditions mentioned above, the conditions which would benefit from the deception or the need to know about the deception are sought. Deception is also subject to the same time-limiting period as error. In other words, the contract will be considered valid if the deceit does not claim the invalidity of the contract within one (1) year from the date of learning that it has been deceived. The cheating or third person is obliged to reimburse the damage suffered by the deception due to deceit, irrespective of whether the invalidity of the contract is claimed. According to article 39/2 in TBK, approval on contract by the cheated party does not mean a renounce of right to compensation. Therefore; the right to compensation is contradictive but domestic view is demanding a reliance damages. However; equity requirement, article 35 in TBK will be applied by analogy and decided much more.
C. THREAT (FRIGHTENING)
Threat arranged article 37 in Law no 6098 by accepting as a defective will about contracts. According to law threat is; doing something that s/he doesn’t want to do because of threatening about her/himself or relatives gets hurt.
For example, when a person is forced to sign a contract with the threat that he will be killed or burned at home if he is not willing to settle for another person46. The two are composed of two kinds, the material and the spiritual. It is accepted that a material offense is carried out if someone is pressed to make a contract. There is no disabled will in the case of an actual threat. Because in this case there is no will. In the event that the contract is concluded as a result of such a situation, the transaction is considered to have not occurred in any way. The spiritual threat is explained as the realization of a process that cannot be done as a result of the intimidation of a person. This type of warning is usually caused by blackmail threats. There is a declaration of will here, but this will is not free47.
There are specific conditions for the existence of a threat. These are a) Should be serious b) Should be danger that can be happen immediately c) should be done to one of the part of contracts or her/his one of relatives d) should be directed to personality, honor, life, property or freedom e) should be unjust f ) should be relation of causality between threat and process that is to be done g) threat should be done by opposite part of the contract or third person shaped like this. If one of these conditions is present, the presence of the threat is mentioned, and therefore no one, who agrees with a legal act, is bound by the contract. The occurrence of the defect due to the cancellation of the willpower can be eliminated within the scope of article 39 of the Law no. As a rule, the frightened party is not bound by contract.
In the fear of the third party, unlike the deception, the fact that the party does not know or intimidate the other party is not important for the cancellation of the contract. As in cheating, there is no need to cancel the contract for the demand for compensation in scare48. Since the result of the intimidation is similar to the error and deception, the most important point to be mentioned here will be the evaluation of the validity of the legal agreement if the third person intimidates.
Compensation for damage of part of contract is requirement in law as a result of frightened by third person. Injured one has to base on civil wrongdoing in the case with this reason49. Reliance damage is originate from frighten and together with approving the contract or cancelling and still exist damages the compensation not a damages that the execution of the contract.
Article 37/2 in Law no 6098 regulates; if the party exposed to the intimidation behavior requires equity without regard to the defect, it has arranged the obligation to pay the other party’s loss. This shows that a statutory liability has been created by the law to reimburse the contractor who is contracting as a result of the intimidation of the third party, but then cancels the contract50. The part who cancel the contract due to exposed of frighten in terms of s/he paid amount because of the contract can ask it from third person according to rules of civil wrong51.
Consequently, the party subject to intimidation is not bound by the contract, whether by the counterclaim or the third party. In the event that the intimidation occurs with counterparty behavior, the counter-act is responsible for the negative damages of both the offense and the negligence of the culpa in contrahendo. In the intimidation of the third party, it is assumed that the third party is responsible for the tort. If the intimidation is caused by the behavior of the third person, the counter-act may be requested from the party canceling the contract in good faith, due to the loss of the contract. This indemnity accepted under the principle of fairness constitutes an exemplary responsibility52.
V. CONCLUSION
Consequently, in order to be able to mention the lesion,
the objective condition and the subjective conditions of
the lesion should be present. The fact that the person who is in trouble with the institution of lesion cancels
the contract that he has to sign is the right to exercise
the rights he has in the legal order. With the doctrine
regulated in our legislation and the regulations of the
Supreme Court of Appeals, it is ensured that the social
and economic society is developed in a healthy way by
organizing / limiting the relations between the individuals / institutions. Therefore, having such an arrangement within our legal system ensures the formation of
a healthy society and prevention of victimhood, in other
words, it leads to a healthy progress of our legal order.
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FOOTNOTE
1 Turhan Esener, Fatih Gündoğdu, Borçlar Hukuku-I Sözleşmelerin Kuruluşu ve Geçerliliği (TBK m.1 – 48) (Kuruluş ve Geçerlilik), Istanbul 2017, p. 23.
2 Ahmet Cemal Ruhi, Sözleşmeler Hukuku, Vol. I, 2. Ed., Istanbul 2013, p. 18-19.
3 Tahir Çağa “Rızadaki Fesat Sebeplerinden Biri veya Gabin ile Malul Sözleşmelerde Fesih Beyanı ve Bunun Süresi”, Law Journal of University of Ege, 1980, p. 39.
4 Esat Arsebük, Türk Kanunları Bakımından Borçlar Hukukunun Umumi Esasları (Umumi Esasları), Vol. I, Ankara 1937, p.222.
5 Andreas B. Schwarz, Borçlar Hukuku Dersleri (Ders), Vol. I, 1948, p.346.
6 Kenan Tunçomağ, Borçlar Hukuku Dersleri, Vol. I, Istanbul 1965, p.229-230.
7 Önen Gonca, Türk Hukukunda Gabin, University of Akdeniz Institute of Social Sciences Master’s Thesis, Antalya 2007, p. 3-4.
8 Korkut Özkorkut, Aşırı Yararlanma Hükümlerinin Tacirler Bakımından Uygulanması (TBK m.28), The Journal of Bank ve Commercial Law, Vol. 4, December 2016, p. 69-71.
9 Tekinay/Akman/Burcuoğlu/Altop, Borçlar Hukuku Genel Hükümler (Genel Hükümler), 7. Ed., 1993, p.458.
10 Halid Elbir, İslam Hukukunda Gabin (Gabin), The Journal of Institute Of High Islam Of Istanbul, Vol. I/1, Istanbul 1963, p.6.
11 Elbir, Gabin, p.6.
12 Reşat Kaynar, Türk Borçlar Hukuku Dersleri Genel Hükümler, Istanbul 1965, p.56.
13 Ferit Saymen/Halid Elbir, Türk Borçlar Hukuku (Borçlar), Istanbul 1958, p. 232, Feyzi Necmeddin Feyzioğlu, Borçlar Hukuku Genel Hükümler (Borçlar), Vol. 1-2, İstanbul, Publication of İstanbul University, 1976, p.249, 254.
14 Necip Kocayusufpaşaoğlu, Borçlar Hukuku (Borçlar Hukuku), 7. Ed., 2017, p.480.
15 Esener/Gündoğdu, Kuruluş ve Geçerlilik, p.161.
16 Schwarz, Ders, p.350
17 Eraslan Özkaya, Aşırı Yararlanma (Gabin) Davaları, 2015, p.17.
18 Selmanı Okumuş, 6098 sayılı Türk Borçlar Kanunu’na Göre Aşırı Yararlanma (Gabin), Institute of Social Sciences, p. 65 – 66.
19 Arsebük, Umumi Esasları, s. 222; Turgut Akıntürk, Borçlar Hukuku, Istanbul 2018, p.60; Safa Reisoğlu, Borçlar Hukuku (Borçlar), Vol. I, Ankara 1972, p.107.
20 Feyzioğlu, Borçlar, p.249 vd.
21 Supreme Court 1. Civil Chamber, Dated 14.11.2017, Numbered 2014/21518 E., 2017/6403 K.
22 Halid Elbir, Gabinin Unsurları, The Journal of Istanbul Bar Assosication, Vol. 25, April 1951, p.16.
23 Eugen Bucher, Schweizerisches Obligationenrecht, Allgemeiner Teil ohne Deliktsrecht, 2. Aufl., Zürich Schulthess 1988, p. 231.
24 Supreme Court 1. Civil Chamber, Dated 27.12.1976, Numbered E. 1976/10791, K. 1976/12751.
25 Kocayusufpaşaoğlu, Borçlar Hukuku, p.484.
26 Supreme Court 1. Civil Chamber, Dated 04.03.1969, Numbered E. 1969/391, K. 1969/1133.
27 Kocayusufpaşaoğlu, Borçlar Hukuku, p. 484.
28 Kocayusufpaşaoğlu, Borçlar Hukuku, p. 483.; Ahmet M. Kılıçoğlu, Borçlar Hukuku Genel Hükümler (Genel Hükümler), Ankara 2018, p. 219; Saymen/Elbir, Borçlar, p.167.
29 Supreme Court 4. Civil Chamber, Dated 18.01.1958, Numbered E. 1957/6713, K. 1958/283.
30 M. Kemal Oğuzman/Turgut Öz, Borçlar Hukuku Genel Hükümler (Genel Hükümler), Vol. I, Istanbul 2011, p. 137; Fikret Eren, Borçlar Hukuku Genel Hükümler (Genel Hükümler), Ankara 2018, p.419.
31 Tekinay/Akman/Burcuoğlu/Altop, Genel Hükümler, p.461.
32 Supreme Court 1. Civil Chamber, Dated 11.09.1946, Numbered E. 1945/4025, K. 1946/3574.
33 Kocayusufpaşaoğlu, Borçlar Hukuku, §39, N.16; Eren, Genel Hükümler, p.380.
34 Tekinay/Akman/Burcuoğlu/Altop, Genel Hükümler, p. 462.
35 Kocayusufpaşaoğlu, Borçlar Hukuku, §39 N. 14; Kılıçoğlu, Genel Hükümler, p.151.
36 Kocayusufpaşaoğlu, Borçlar Hukuku, §39 N. 14.
37 Oğuzman/Öz, Genel Hükümler, p.138.
38 Ernst Kramer, Berner Kommentar, Bd. IV/1/2/1a, Art. 19-22 OR, Bern 1991.
39 Eren, Genel Hükümler, p. 423.
40 Claire Huguenin, Obligationenrecht Allgemeiner und Besonderer Teil, Zürich 2012.
41 Tekinay/Akman/Burcuoğlu/Altop, Genel Hükümler, p. 426.
42 Supreme Court 1. Civil Chamber, Dated 27.03.2017, Numbered E. 2014/20584, K. 2017/1437.
43 Oğuzman/Öz, Genel Hükümler, p. 113-115.
44 Mehmet Murat İnceoğlu, Borçlar Hukukunda Doğrudan Temsil, Istanbul 2009, p. 20.
45 Zekeriya Kürşat, Borçlar Hukuku Alanında Hile Kavramı, p. 25 vd.
46 Supreme Court General Assembly, Dated 25.03.2015, Numbered E. 2013/19-1707, K. 2015/1072.
47 Saymen/Elbir, Borçlar, p. 274; Reisoğlu, Borçlar, p. 83.
48 Saymen/Elbir, Borçlar, p. 275.
49 Tekinay/Akman/Burcuoğlu/Altop, Genel Hükümler, p. 457.
50 Kocayusufpaşaoğlu, Borçlar Hukuku, p.478.
51 Eren, Genel Hükümler, p. 368.
52 Mustafa Tiftik, “Borç Sözleşmelerinin İrade Sakatlığı Sebebiyle İptalinde Uğranılan Zararların Tazmini”, The Journal Of Law Faculty of University Of Erzincan, Vol.X, p. 413.
