Deed Cancellation and Registration Case Due to Murisin’s Incompetence
The importance of the determination of a person’s capacity in terms of the consequences it has in terms of personal and property law arises automatically. In this case, it is obligatory to collect all the evidence to be presented by the parties, to obtain explanatory and satisfactory concrete information from the witnesses in this direction, and to bring the doctor’s reports, patient observation (observation) papers, film radiographs, if any, of the person alleged to be incapacitated. In addition, although the “vote and opinion” of the expert witness is not binding on the judge as stated in Article 282 of the Code of Civil Procedure No. 6100, since the absence of the power of appeal depends not only on biological causes such as minority, mental illness, mental weakness, intoxication, but also on psychological factors such as consciousness, cognition and will, the determination of biological and related psychological causes such as mental illness and mental weakness requires special and technical knowledge outside the profession of judge.
In particular, the fact that the power of discernment is a relative concept and that it varies according to the person’s actions and transactions makes it necessary to obtain a report from the most competent medical board, especially from the Fourth Specialized Board of the Forensic Medicine Institute. In fact, Article 409/2 stipulates that mental illness or mental weakness shall be determined by an expert report.
Considering that legal incompetence is related to public order, it is necessary to examine it primarily due to its importance, to collect all the evidence to be submitted by the parties in this direction, to request medical board reports, patient observation papers, prescriptions, etc. of the heir, if any, and to request the entire file in accordance with Articles 7, 16 of Law No. 2659. In accordance with the provisions of Articles 7 and 16 of the Law No. 2659, sending the entire file to the Forensic Medicine Institution, obtaining the report on whether the heir was competent on the date of the contract, and if it is understood that he was incompetent, it is a requirement of Articles 701 et seq. Articles 701 et seq. of the Turkish Civil Code and that the lawsuit based on the request regarding the share cannot be heard, if it is understood that he is competent, conducting an investigation on the allegations of collusion, which is the other legal reason relied on in the lawsuit, collecting the evidence of the parties on whether the assignment transaction between the muris and the defendant … is collusive or not, according to the evidence collected and to be collected; if it is determined that the assignment is collusive, whether the defendant …, the last record owner, is in good faith and whether he can benefit from the protection of Article 1023. It is not correct to make a decision as written with an erroneous evaluation and incomplete research, while it is necessary to evaluate whether the defendant … will benefit from the protection of Article 1023, and to make a decision according to the result to be reached (1st Civil Chamber of the Court of Cassation – Decision: 2017/1475).
Incompetence and Abuse of Power of Attorney
It is understood from the way the claim is put forward and the content of the statement of claim that the case is based on the legal grounds of incompetence and abuse of power of attorney.
As emphasized in the decision of the Court of Cassation General Assembly of Civil Chambers dated 11.04.1990 and numbered 1990/1-152-1990/236, in principle, there is nothing contrary to the procedure and the law in showing several legal reasons together in terms of the material facts relied on in the case.
On the other hand, considering that legal incompetence is related to public order, it should be examined first due to its importance.
As it is known, a person who does not have the ability to understand, evaluate and distinguish the causes and consequences of his/her behaviors, actions and transactions cannot be said to have the capacity to establish rights and incur debts (obligations) with his/her own will. As a matter of fact, Article 9 of the Turkish Civil Code (TCC) stipulates that “a person who has the capacity to act can acquire rights and incur obligations through his/her own actions”. In Article 10, the main condition for the capacity to act is the power of discernment and being an adult (legal age) and the provision “an adult person who has the power of discernment and is not restricted has the capacity to act.” The “capacity to discriminate” is also defined as the capacity to act and function, and explained in Article 13 of the same Law by stating that “anyone who is not deprived of the ability to act rationally because of his/her minority or due to mental illness, mental weakness, intoxication or any of these reasons has the capacity to discriminate according to this law”, and some of the important reasons that eliminate the capacity to discriminate are also mentioned. Due to their importance, these principles are also included in various provisions of this law and other laws.
It should be noted immediately that, as stated in Article 15, since the person who lacks the power of discernment does not have a valid will, the good faith of the other party does not render the transaction valid, since the transactions he/she will make cannot be concluded, without prejudice to the exceptions specified in the law. This principle is also adopted in the Unification Decision of the Court of Cassation dated 11.06.1941 and numbered 4/21.
When the case is approached in the light of the above-mentioned principles and articles of the law, it becomes evident that the determination of a person’s capacity is of great importance in terms of the consequences it has in terms of personal and property law. In this case, it is obligatory to collect all the evidence to be presented by the parties, to obtain explanatory and satisfactory concrete information from the witnesses in this direction, and to bring the doctor’s reports, patient observation papers, film graphics, if any, of the person alleged to be incapacitated. In addition, although the “vote and opinion” of the expert as stated in Article 282 of the Code of Civil Procedure No. 6100 is not binding on the judge, since the absence of the power of appeal depends not only on biological causes such as minority, mental illness, mental weakness, intoxication, but also on psychological factors such as consciousness, cognition, will, the determination of biological and related psychological causes such as mental illness, mental weakness requires special and technical knowledge outside the profession of judge.
In particular, the fact that the power of discernment is a relative concept and that it varies according to the person’s actions and transactions makes it necessary to obtain a report from the most competent medical board, especially from the Fourth Specialized Board of the Forensic Medicine Institute. As for the concrete case; the court concluded that the plaintiff was incapacitated according to the medical board report dated 14.03.2007 obtained from Ceyhan State Hospital.
As such; due to its importance, first of all, all the evidence to be submitted by the parties in terms of legal incompetence should be collected, medical board reports, patient observation papers, prescriptions, etc. belonging to the plaintiff should be requested. The whole file should be sent to the Forensic Medicine Institution, a report should be obtained on whether the plaintiff is competent or not on the dates of the power of attorney and painting contract, if it is understood that the plaintiff is competent, the allegations regarding the abuse of the duty of attorney in terms of the immovable immovable property numbered 23 parcels subject to the dispute should be examined and a decision should be made according to the result, but it is not correct to establish a written judgment by being satisfied with incomplete investigation (Court of Cassation 1st Civil Chamber – Decision: 2016/2135).
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