Cases of mistake (error) in the law of obligations

The General Assembly of the Supreme Court of Appeals included very detailed explanations regarding the fundamental mistake in one of its decisions. According to the relevant decision:

"Mistake is a common occurrence in daily life. There are various types of mistake. In terms of time, the types of mistake are divided into three as mistake regarding a past, current and future event or situation. In addition, it is possible to divide the mistake into legal and actual mistake. Article 30 of the Turkish Code of Commerce distinguishes between "fundamental mistake" and "non-fundamental mistake". According to the said article, a party who makes a fundamental mistake while establishing a contract is not bound by the contract. On the other hand, the party who makes a fundamental mistake while establishing a contract is not bound by the contract. In case of mistake, the validity of the contract is absolute and the contract made here cannot be cancelled. Although fundamental mistake is not defined in the Turkish Code of Obligations, its examples are listed in paragraphs 1 - 5 and 32 of the Turkish Code of Obligations. While the cases of material mistake listed in paragraph 5 of the said article 31/I are mistake of statement, the case of fundamental mistake regulated in Article 32 is qualified mistake.

From another perspective, the cases of mistake on which the Turkish Code of Obligations is based are divided into two: "substantial mistake" and "motive mistake". As a rule, the Turkish Code of Obligations considers only a mistake in declaration as a material mistake due to the principle of trust in legal transactions. However, the Legislature has also accepted the mistake of motive in exceptional cases, taking into account the feelings of fairness and justice. In fact, the Turkish Code of Obligations regulates the legally important mistake of motive in three cases. These are; These are basic mistakes, deception and confusion (Eren, p.394).

Fundamental error is not defined in the Turkish Code of Obligations No. 6098, and there is no definition of fundamental error in the Code of Obligations No. 818. However, Article 24 of the Law provides some bases that will help determine the fundamental error.

In the doctrine, the authors describe the fundamental error as follows: "If the difference between the will and the declaration is so important that it can be assumed that the declarant would not have made the declaration if it had been known, the error is fundamental." ( Tunçomağ, p.337 ).

In the 31st article of the TBK No. 6098 with the general title "Situations of Mistake" and the subtitle "Error in statement";

"In particular, the following cases of error are essential:

1. If the mistaken person expressed his will for a contract other than the one he wanted to be established.

2. If the mistaken person expressed his will for something other than what he wanted.

3. If the mistaken person has expressed his will to make a contract to someone other than the person with whom he actually wants to make a contract.

4. If the mistaken person took into account a person with certain qualifications when making the contract, but declared his will for another person.

5. If the wrongdoer has expressed his will for an act significantly more than he actually wants to undertake, or for a counter-act significantly less than he actually wants.

Simple calculation errors do not affect the validity of the contract; It is enough to correct them."

regulation is included.

Article 32 of the same Law, with the general title "Situations of Mistake" and subtitle "Mistake in Motive";

"A mistake in motive is not considered a fundamental mistake. The mistake is considered fundamental if the mistaken party considers the reason for which he was mistaken as the basis of the contract and if this complies with the rules of honesty valid in business relations. However, this situation must also be known to the other party."

Turkish Code of Obligations art. According to Article 30, only fundamental mistake is of importance in contracts. On the other hand, a non-material mistake has no effect on the validity of the contract. TBK. m. The first sentence of 32 does not accept the mistake of motive as a fundamental mistake. However, what is in question here is the 'ordinary misconception of motive'. On the other hand, in the same article, a qualified misconception of motive, called a fundamental misconception, is considered a fundamental misconception. TBK. m. Situations that constitute a fundamental mistake are listed in 5 paragraphs of Article 31/I. However, this enumeration is not limiting and is only exemplary. For this reason, situations similar to these can also be considered as material misrepresentation. TBK. m. In Article 32, not a mistake of statement but a qualified mistake of motive, that is, a fundamental mistake, is regulated as a fundamental mistake.

The element of fundamentality in error should be evaluated subjectively, according to one opinion. Accordingly, if it is accepted that the declarant cannot make such a declaration even if he correctly understands the meaning of his declaration, the incompatibility between the will and the declaration is essential. On the other hand, according to the objective view, the element of essentiality should be interpreted according to objective criteria, not subjective. The essentiality element must be determined according to the dominant and valid opinion in the business community and reasonable evaluations (Eren, p.399).

In general, a person makes a statement that does not correspond to his true will, usually through carelessness. However, in order for a person who makes a mistaken statement to be protected by the law, the mistake does not have to be excusable. What is required is that the mistake be fundamental. In this case, fundamental mistake is not related to the nature of the mistake, but to the provision of annulment (reversal) imposed by the law (Tunçomağ, p.336).

The cases of material mistake are stated separately in the Turkish Code of Obligations No. 6098.

The first of these is a mistake in the nature of the contract.

Here, the mistaken party wants to conclude a contract in accordance with his will for the transaction, but he mistakenly declares his will for a contract other than the one he wants to be established (TBK. Art. 31 / I-paragraph 1). Thus, the type of contract seemingly established and the type of contract intended to be established are different from each other in terms of legal nature and content. There is a mistake in the type of contract.

The situation where a person who does not have the will to make a contract and therefore does not want to make any contract accidentally makes an unintentional declaration is also included here (Eren, p.400).

The 1st paragraph of Article 24 of the repealed Code of Obligations No. 818 (UK) also includes a regulation regarding error in the nature of the contract. It has been stated that if the party claiming to have made a mistake refers to another contract when declaring its consent to a contract, there will be a fundamental mistake.

In other words, the person has the will to make a contract, but he made another contract that does not comply with this will.

The second case of fundamental mistake is the mistake about the subject of the contract.

If the person who makes a mistake expresses his will for something other than what he actually wants, there is a mistake on the subject. The word subject used here should be interpreted broadly and it should be understood as "the thing that constitutes the subject of the contract" (Eren, p.400).

There is also a provision regarding this issue in the 2nd paragraph of Article 24 of the Code No. 818. There is a misconception here regarding the identity of an item. This mistake arises from mistakes made while describing and assigning an item ( Tunçomağ, p.339 ).

The person has made a statement regarding a subject different from the will he has regarding the subject of the contract (Kılıçoğlu, A.M.: Law of Obligations General Provisions, 5th Expanded Edition, Ankara 2005, p.127).

An error in the nature or subject of the contract may sometimes arise due to signing a written contract without reading or understanding it. According to the theory of trust, in this case the contract is established and valid. However, it is accepted that signing the contract without reading or understanding the written text may in principle be considered a mistake in declaration, except if the person who claims to have made a mistake signed the contract knowing that he was not aware of the content of the declaration.

The same may be the case for contracts containing general transaction conditions. Particularly if contracts containing General Transaction Conditions containing unclear or surprising provisions are signed without being read or understood, cancellation may occur due to error (Kılıçoğlu, p.127).

If a person is mistaken not in the goods but in the qualities of the goods, then paragraph 4 of Article 24 of the Code of Obligations comes into play.

Mistake in the identity of the other party and mistake in the nature of the other party are also considered as cases of fundamental mistake. Again, a mistake in the amount of the action or counter-action is also a fundamental mistake.TBK. m. According to paragraph 5 of Article 31/I, if the mistaken party has expressed his will for a counter performance that is significantly more than what he actually wants to undertake in the contract he wants to make, or significantly less than what he actually wants, then there is a fundamental mistake of declaration. In order for a mistake in quantity to occur, the amount actually requested and the amount actually agreed upon in the contract must be significantly different from each other. On the other hand, the error in the value of the performance owed or the counter-performance is not included here if the amounts comply with the desired amount. The fallacy of value is, in principle, the fallacy of motive (Eren, p.401).

It is necessary to distinguish simple calculation errors from quantity errors. Simple miscalculations are errors in addition, division or subtraction operations. TBK. m. According to Article 31/II, it does not affect the validity of the contract; It is enough to correct them (Eren, p.401-402).

Similarly, Article 24 of the Code of Conduct contains regulations regarding errors in goods, persons and quantities. In order for a person's mistake about a person to be considered a fundamental mistake, the legal action must be taken by taking that person into consideration.

On the other hand, if the debtor is a factor based on the debtor's ability to pay in a legal relationship in which the debtor is personally obliged to fulfill the obligation, there will be a fundamental mistake.

On the other hand,mistake in one's qualities, BK. It is included in the basic error in clause 24, paragraph 4 (Tunçomağ, p.339).

The amount of error is explained in the 3rd paragraph of Article 24 of the Code of Obligations. This type of error generally occurs in contracts containing gender debt.

A person made a mistake by calculating his expenses too low and not taking some items into account when determining the amount he would demand from the other party; If he has made a mistake in calculation, he cannot claim this as it is actually a mistake regarding motives. Since such misconceptions are not obvious, the other side does not have the opportunity to see and examine them directly.

As for ordinary miscalculations, these cannot be included in any amount of errors or calculation errors. Ordinary miscalculations occur when the numbers on a bill of account are added incorrectly or multiplication is done incorrectly even though the size and price of the thing sold are known. Since it is clear and obvious that there is a mistake in these, they need to be corrected ( BK. 24/III ) ( Tunçomağ, p. 341-342 )." YHGK 2018/1847 K.

The following statements were used in a decision of the 1st Civil Chamber of the Supreme Court of Appeals:

"It is understood that the plaintiff paid the price of the real estate by bargaining with the thought that he bought the land, which he thought was located in a different place, and the real estate was registered in his name, and claimed that he made a mistake in the said transaction. The case is based on the legal reason of mistake. It is undoubted that the party who made a fundamental mistake by making a statement that does not comply with his true will as a result of his carelessness or ignorance on issues such as the subject of the contract, its nature and the amount to be paid, cannot be considered bound by the contract. In order for the mistake to be considered fundamental, both the mistaken party In terms of both the rules of honesty in business life, it is necessary to prove that such a contract would not have been made at all or in the manner described if the mistake had not been made. In case of the existence of these conditions, the party who made the mistake can terminate the legal relationship with retroactive effect (makable) and demand back what he gave. The use of the right of cancellation is not subject to any form. The existence of the mistake can be proven with all kinds of evidence. While the evidence of the parties should be evaluated in line with the principles explained above and the decision should be made according to the situation. "It is against." 2013/2179 K.

MISSILE IN MOTIVE - MISTAKE IN FOUNDATION

Error in motive means that a person makes a statement of will other than his desire. As can be understood from the above article of law, mistake in motive is not a fundamental mistake. On the other hand, a special regulation is included in Article 32 of the TBK. Accordingly, in the presence of certain conditions, misconception of motive is also considered fundamental. Article 32 of the TBK, which regulates these conditions, is as follows:

"A mistake in motive is not considered a fundamental mistake. If the mistaken party considers the motive in which he was mistaken as the basis of the contract and this complies with the rules of honesty valid in business relations, the mistake is considered fundamental. However, this situation must be known by the other party."

According to the conclusion of the judgment, in order for a mistake in motive to be considered a fundamental mistake, the following conditions must be present:

a- One of the contract parties must be mistaken in an issue that affects the formation of the desire to enter into a contract.

b- The matter in which he was mistaken should be considered as the basis of the contract.

c- The motive for the mistake must be known to the other party.

This state of being mistaken in motive is called fundamental mistake. The General Assembly of the Supreme Court of Appeals basically used the following statements regarding the mistake.

"The final form of fundamental error is fundamental error (qualified motive error).

In the fundamental error, since there is a subjective and objective wrong perception (thought) about an event or situation, this event or situation is, in principle, not included in the content of the contract (declaration). However, this event or situation may also be included in the content of the contract.

In the fundamental error, there is no incompatibility between the will to act and the declaration. The declaration is in accordance with the will. But the will is injured in the formation phase. Essentially, this is why the fallacy of foundation is considered, first of all, a fallacy of motive. The reason why fundamental error is considered a fundamental error is the idea of fairness. If this mistake was considered a simple mistake of motive, the mistaken person would not be able to cancel the contract. The legislator chose this path in order to soften the severe consequences of this situation for the benefit of others (Eren, p.402).

In order for a fundamental error to occur, a motive error must first be found. Accordingly, there must be a discrepancy between one of the parties' imagination about a particular event on which the will to act is based and the actual situation, and the will to act must be formed in a distorted manner as a result of a wrong imagination about the reality. Again, the subjective element is another element of the fundamental error. Here, if the person who made a mistake had known about the matters in which he was mistaken, he would not have made the contract at all or would not have made it in this way.

The person who is mistaken in the subjective element has a wrong assumption and acceptance, a faulty imagination, about the events and situations that he considers as the basic element of the contract. For this reason, the wrong assumption and imagination was so important for his mistakes that it led him to make the contract in question (Eren, p.404).

Another element of the fundamental fallacy is the objective element. Misconception about a certain situation or event, that is, misunderstanding of motive, should be considered the basis of the contract not only by the mistaken party, but also by reasonable and right-thinking people, according to the rules of honesty valid in business relations. Thus, if the rule of honesty in business relations justifies the mistaken party's acceptance of an event as the basis of the contract, the objective element of the fundamental mistake is also realized (Eren, p.404).

As for knowability, which is the last element of the fundamental error; If the other party knows that the wrong person's motive is the basis of the contract, or is in a position to know if he had shown the necessary care and attention in accordance with the rule of honesty, this element exists.

In the second paragraph of Article 24 of the repealed Code No. 818, the mistake of motive, which is considered fundamental, has been ruled. According to this relevant article, when a person really wants what he declares, but is mistaken about the situation that led him to make this statement, he is said to be mistaken in motive. In this case, the operation will not cause any injury.

But there are some exceptions to this provision. These exceptions are included in the 4th paragraph of Article 24 of the Code of Obligations. In this case, in order for the mistake in motive to be fundamental, the declarant must subjectively accept a certain situation as a necessary element of his declaration, and the same situation must appear objectively (also according to the rules of commercial integrity) as a mandatory element of the legal transaction. In order for the last point to be realized, it is also necessary for the other party to know or need to know the importance of the mistake of motive ( Tunçomağ, p.343 ).

In case of misrepresentation, it is not necessary for the other party to know or know that the mistake is made. On the contrary, if the misrepresentation is known to the other party or can be known according to the rule of honesty, there can be no mistake. Because, if the other party knows or is in a position to know that the party is mistaken, the contract is established according to the theory of trust and cannot be canceled due to mistake.

For a fundamental mistake to occur, it does not matter whether the mistaken person is at fault or not. Flaw is not an element that prevents fundamental mistakes (Eren, p.406).

TBK. m. At 34, TMK art. The rule of honesty regulated in Article 2, and therefore the prohibition of abuse of rights, has found a special field of application. Accordingly, the mistaken party cannot claim that he was wrong, contrary to the rules of honesty. For this reason, if the other party does not know that the party who made a mistake is wrong, or if the contract is canceled due to a mistake, the damage that the addressee will suffer is greater than the damage that the wrong party will suffer, or if the performance of the contract despite the mistake will not cause damage to the mistaken party, it would be against the rule of honesty to request the cancellation of the contract by claiming to be mistaken. In this case, there is abuse of the right (Eren, p.409).

This situation also took its place in the repealed UK. Article 25 of our Code of Obligations limits the right to claim mistake. Indeed, according to the aforementioned article, the person who is mistaken cannot tolerate his mistake in a way that violates the rule of honesty. For example, a person cannot claim to be mistaken just to disturb the other party, even though he or she has little interest in that thing. Then, the ruling is the same if the mistake made by the mistaken person is to his own benefit ( Tunçomağ, p.347 ).

After explanations about the reasons that cripple the will and the fundamental mistake in this context, when it comes to the concrete incident; It is seen that there are three lawsuits between the parties, one main and two combined, with the request for negative determination and recovery and cancellation of the receivable and objection...., and in the main case, the plaintiff claims that the joint debt of... was higher as a result of a miscalculation, and the plaintiff had to pay the debt, and that this mistake was due to an error in the spreadsheets."

The decision of the 11th Civil Chamber of the Supreme Court of Appeals No. 2021/4110 is as follows:

"As it is known, Article 32 of the TBK No. 6098 states that "A mistake in motive is not considered a fundamental mistake." The mistake is considered fundamental if the mistaken party considers the reason for which he was mistaken as the basis of the contract and if this complies with the rules of honesty valid in business relations. However, this situation must also be known by the other party." Misconception of motive is when the will to make a contract with a certain content with a certain person is damaged as a result of wrong imaginations that do not comply with the facts. Mistake of motive is the mistake in the formation of the will to act (Eren, p. 426). Misconception of motive may be related to an element within the contract or to an element outside the contract. Misconception regarding the element within the contract is called "mistake of quality". Non-contractual. In the case of a mistake in motive regarding the elements, the person making the contract thinks that the thing subject to the contract can be used in a certain way in a wrong way, whereas this is not the real situation. In such cases, it is possible that the mistaken party would not have made the contract at all or would not have made it in this way if he had known the matters in which he was mistaken. If he is in a position to know if he had paid the necessary attention and care, he should not hesitate in the presence of a fundamental mistake in motive.

After these general explanations, when it comes to the concrete incident; In accordance with the scope of the file, the plaintiff party took over the shares from the defendants... Tarım Ürünleri Agrichemicals, Fertilizer, Animal Food Products İnş. Material. Tic. Ltd. It is obvious that his company has a commercial enterprise designed to be operated as a trout farm, and that the plaintiff has concluded the agreements regarding the share transfer with the aim of becoming the owner of the commercial enterprise in question within the company, and that this intention cannot be considered as contrary to the rules of honesty and as an odd situation within the ordinary course of life. Again, in accordance with the scope of the file, it is understood from the documents in the file that the water required for the trout farm in question was previously supplied from Kısık Suaçan Stream with the lease agreement made with the Directorate of Agriculture, Food and Livestock, and that this situation existed during the company share transfer, but that the lease agreement dated 22.09.2011 was concluded without the approval of DSI. It has been determined that the company, of which the party is the sole partner, will be cut off by the DSI Survey Planning and Allocations Department's letter dated 01.12.2015 and the Provincial Food, Agriculture and Livestock Directorate's letter dated 25.01.2016 sent to the plaintiff, and therefore the business is no longer able to continue its activities. In this case, the plaintiff should not hesitate if he made a fundamental mistake in the motive of the share transfer agreement. In this case, it is necessary to determine whether the defendants who transferred the shares were in a position to know about this fundamental mistake that the plaintiff made in the motivation of the contract. In this context, from the information and documents reflected in the file, it is understood that the plaintiff's defendant... was working as an engineer in the Provincial Directorate of Food, Agriculture and Livestock, that he was in a position to know about the water cutoff of the farm due to the above-mentioned pond project, that the application of the company of which he was a partner regarding the trout farm expansion project was unsuccessful, and that the said defendant requested to be transferred to another province of his own accord before the share transfer agreement.In this case, it is in accordance with the ordinary flow of life to accept that the defendant was in a position to know the fundamental mistake that the plaintiff made in the share transfer agreement, and that the other defendants were also in a position to know the fate of the trout farm. For this reason, while a decision should be made based on the outcome of the share transfer agreement by accepting that the invalidity conditions have been met, it was not correct for the First Instance Court to reject the case and the Regional Court of Justice to reject the appeal application on merits, and the decision should be reversed in favor of the appellant plaintiff.

Here, particular attention should be paid to the condition of being known by the other party. An exemplary Supreme Court decision regarding this issue established the following provision:

"The case is a negative determination case. The plaintiff, thinking that he was a guarantor for the housing loan, was corrupted and signed the limit increase agreement as a guarantor regarding the limit increase of the commercial loan agreement subject to the case. The plaintiff is the father of one of the defendants and the father-in-law of the other defendant, they are in such a close relationship, therefore the plaintiff's claims that he was misled are far from sincerity, it is accepted that the defendants know for what purpose they took the loan, and for these reasons, the plaintiff "The case should be rejected on the grounds that the claim cannot be proven with definitive, convincing concrete evidence." Y19. HD. K. 2012/15943

CANCELLATION OF THE CONTRACT DUE TO MATERIAL MISTAKE (ERROR)

Fundamental errors are divided into two types: statement errors and fundamental errors. We have mentioned the details of these issues above. In both types of material mistake, the person who made a mistake has the right to request the cancellation of the contract.

According to Article 39 of the Turkish Code of Obligations; If the party who made a contract due to mistake or deception or as a result of intimidation does not declare that he is not bound by the contract or does not demand back what he gave within one year from the moment he learned about the mistake or deception or the effect of the intimidation disappears, he is deemed to have approved the contract.

Here, a one-year limitation period has been determined for the cancellation request. This period is observed by the judge ex officio.

Exercising the right of cancellation is not subject to any conditions. It can be reported through a unilateral declaration of will directed to the other party of the contract within the one-year limitation period from the date on which the error is learned, or it can be used through defense or lawsuit. Additionally, the existence of an error can be proven with any kind of evidence.

The legislator has regulated that the right of cancellation cannot be used in some cases. According to Article 34 of the Turkish Code of Obligations:

"A person who is mistaken cannot claim that he is wrong contrary to the rules of honesty.

Especially if the other party declares that he/she consents to the conclusion of the contract in the sense intended by the party in question, the contract is deemed to have been established in this sense.”

TBK. m. At 34, TMK art. The rule of honesty regulated in Article 2, and therefore the prohibition of abuse of rights, has found a special field of application. Accordingly, the mistaken party cannot claim that he was wrong, contrary to the rules of honesty. For this reason, if the other party does not know that the party is mistaken, or if the contract is canceled due to a mistake, the damage that the addressee will suffer is greater than the damage that the wrong party will suffer, or if the performance of the contract despite the mistake will not cause damage to the mistaken party, it would be against the rule of honesty to request the cancellation of the contract by claiming to be mistaken. In this case, there will be abuse of the right (Eren, p.409).

COMPENSATION FOR DAMAGES INCURRED BY THE OTHER PARTY DUE TO CANCELLATION OF THE CONTRACT - FAILURE OF THE PERSON

According to Article 35 of the Turkish Code of Obligations:

"If the party making a mistake is at fault, he is obliged to compensate for the damage arising from the invalidity of the contract. However, if the other party knew or should have known about the mistake, compensation cannot be requested.

The judge may award more compensation in cases where equity requires, provided that it does not exceed the benefit expected from performance.

As stated in the article, in case of mistake, the existence of the mistaken party's fault does not constitute an obstacle to the cancellation of the contract. On the other hand, the party that is at fault as a result of its own fault must cover the other party's negative and, if necessary, positive damages. In a Supreme Court decision on the subject, the following provision was made:

"The case is about the request for title deed cancellation and registration based on the legal reason of mistake. As it is known, it is undoubted that the party who made a fundamental mistake by making a statement that does not comply with his true will as a result of his carelessness or ignorance on issues such as the subject of the contract, its nature and the amount to be paid, cannot be considered bound by the contract. It should be noted immediately that the fact that the party who made the mistake while making the contract is found to be at fault does not prevent the cancellation of the contract. However, Article 35 of the TCO (Article 26 of the BK) As stipulated in the article, the negative and, if necessary, positive damages of the other party who did not know or was not in a position to know the mistake and who was at fault, must be paid. On the other hand, mistake and deceit can be proven with all kinds of evidence, and the exercise of the right of cancellation is not subject to any form, it can also be used through a statement of will, defense or lawsuit to be directed to the other party within a one-year limitation period from the date of knowledge. As for the concrete case, according to the content of the file and the collected evidence, the assignment is voluntary and the right of annulment is not subject to any form. It is concluded that the conditions are not met. In this case, it is not right to make a written decision based on erroneous evaluation, although it should be decided to reject the case." Y1HD. 2019/2902 K.