Invalidity of the Penalty Clause in an Invalid Contract
According to the scope of the entire file, the court ruled that the Real Estate Sales Promise Agreement dated 14.02. 2014 dated Real Estate Sales Promissory Contract for the sale of 3 immovables was issued in ordinary written form without complying with the official form requirement specified in the mandatory provision of the law, the official form requirement is a condition of validity, the contracts made without complying with the form stipulated in this article of the Law will not be valid, the provisions regarding the penal clause in the invalid contract are also invalid, based on this, the decision to dismiss the lawsuit on the grounds that the defendant is justified in its objection to the proceeding is in accordance with the law (11th Civil Chamber of the Court of Cassation-K.2021 /5283).
The plaintiff’s attorney claimed and sued that the parties had reached an agreement on the sale of the immovables belonging to the plaintiff with the Real Estate Sale Pre-contract protocol signed between the parties on 16.09.2017, that the defendant did not fulfill the condition in Article 3.2 of the contract, that the defendant company persistently avoided fulfilling the performance despite all verbal warnings, whereupon the plaintiff terminated the contract based on the relevant provisions in the contract, and that the defendant, which caused the termination of the contract, demanded and sued the collection of the penalty fee of 500,000.00 TL in Article 4 of the contract from the defendant. The defendant’s attorney stated that the contract for the sale of the immovable properties, which were deeded as of the date of sale, was legally invalid since it was not made officially, and that the penalty terms agreed upon were also invalid since the sales transaction made on the basis of the legally invalid contract was completely invalid, and requested the dismissal of the lawsuit. According to the trial conducted by the court and the evidence collected, the penalty clause is an accessory right related to the main debt, the penalty clauses in invalid contracts are also invalid, the parties cannot request penalty clauses from each other based on ordinary written contracts for immovables registered in the title deed, the contract dated 16. 09.2017 dated contract is related to the sale of immovable property, and since it is not officially issued as a condition of validity, it is in accordance with the law to decide to dismiss the lawsuit on the grounds that the provisions regarding the penalty clause in this contract will be invalid in the same way (11th Civil Chamber of the Court of Cassation – K.2021 /2045).
The plaintiff’s attorney claimed that the workplace purchased from the defendant according to the real estate sales promise contract signed between the parties was not delivered on the date stipulated in the contract, that it was agreed in the contract that the defendant would pay a penalty clause in case of non-delivery, that the plaintiff should be compensated for the damage caused by late delivery, and requested and sued for the collection of the penalty clause of 150.000 TL. The defendant’s attorney argued that there was no defect arising from the defendant company in the late delivery of the workplace subject to the lawsuit and requested the dismissal of the lawsuit. The court decided to dismiss the lawsuit on the grounds that a real estate sales promise agreement was made between the parties, this agreement is a contract that gives the parties the right to demand the sale of an immovable, according to Articles 60/3 and 89 of the Notary Public Law, the real estate sales promise agreement must be issued at a notary public in order to be valid, and the contract subject to the lawsuit was issued in ordinary writing, and the plaintiff has no right to demand a penalty clause from the defendant since the basis of the penalty clause is an invalid contract, and it is in accordance with the law (19th Civil Chamber of the Court of Cassation-K.2019/1627).
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