What is gabin?

The law of obligations has adopted the principles of autonomy of will and freedom of contract. In accordance with these principles, the parties can freely determine the performance and counter-performances and agree on the terms of the contracts as they wish. However, in addition to these general principles, the legislation has introduced some restrictions in order to protect the weak side of the contract and to ensure the balance between the parties. Avoiding these restrictions, BK.28 is required for the protection of the party whose will is disabled during the conclusion of the contract and who is in a weaker position compared to the other party. It is regulated in the article as follows: "If there is a clear disproportion between mutual acts in a contract, and if this disproportion is carried out by taking advantage of the injured party's being in a difficult situation or his thoughtlessness or inexperience, the injured party may, depending on the nature of the situation, either request that his performance be returned by informing the other party that he is not bound by the contract, or that the disproportion between the acts be eliminated by adhering to the contract."

The 1st Civil Chamber of the Supreme Court of Appeals in its decision numbered 2019/2501 K. "To be able to talk about excessive exploitation (exaggeration) depends on the realization of two subjective elements, such as the presence of one party in a difficult situation, inexperience, and thoughtlessness (lightness) on one side, and the other party's intention to take advantage and exploit, in addition to the extreme disproportion between the acts, which is the objective element." He defined it with his expressions.

As can be understood from our explanations above, the legislation has regulated that some elements must be present together for the formation conditions of the gabi in order to restrict the freedom of will. These elements are objective and subjective elements, and these issues will be discussed under separate headings below.

ELEMENTS OF GAIN

Again, the legislation regulates that certain elements must be present together for the formation conditions of the gabi in order to restrict the freedom of will. These elements are objective and subjective elements.

GAIN OBJECTIVE ELEMENT

When the objective element of the act is mentioned, what needs to be understood is the disproportion between the acts. Although there is no regulation in the law on how disproportionality will be determined, it is clear that the term obvious disproportionality refers to a disproportionality that will be noticed by everyone. In other words, the disproportionality that creates the conditions of absence must be so great that no one can deny it. Otherwise, freedom of contract will be emptied. At this point, we feel the need to leave the word to a nostalgic decision of the 1st Civil Chamber of the Supreme Court of Appeals. Because it would be futile to look for better expressions on the subject. According to the relevant parts of the decision:

"Gabin, which is included in Article 21 of the Code of Obligations, is a legal institution that is very compatible with the principles that dominate contemporary law and human nature. By nature, humans want what they receive to be equal to what they give in their purchases. In contracts involving reciprocal acts, it is mandatory to find a balance between what is received and what is given that does not exceed the limits of tolerance and does not give the impression that one party is being exploited. Since shopping is not a game of roulette, "it is a game of roulette." It cannot be carried out in a "put it in, take two" mood.

In ideal transactions, mutual acts consist of values that are considered equal to each other. In normal transactions, there is a difference in value that is unnoticeable and does not cause concern that one of the parties is being deceived. In abnormal purchases, there is a situation of excessive exploitation that is noticeable to everyone. In such cases, one pan of the shopping scale is in the air and the other is on the ground. "Despite the freedom of contract, such extraordinary transactions are not tolerated by law and morality and where one party exploits the other." 1974/8745 K.

The contract date should be taken as basis when evaluating the cabin. In other words, the conclusion should be made by taking into account the market values ​​at the date the contract was established. Since the characteristics of each concrete case are different, disputes should be resolved equitably by evaluating the criteria and precedent contracts mentioned above.

Another issue that should be emphasized here is that the objective element should be examined first in the gap examination. Namely; If the objective element of the puzzle has not been formed, it will be unnecessary to make an evaluation in terms of the subjective element. As a matter of fact, in the decision numbered 2020/4570 K. of the 1st Civil Chamber of the Supreme Court of Appeals, it is stated that "It should be noted immediately that in the case of gabin, the excessive disproportion between the acts should be focused on, and if the objective element is proven, the material and moral aspects such as the personality, age, health status, place in society, economic power and psychological structure of the person claiming to be harmed, that is, the subjective element, should be investigated and examined in depth." He used his expressions.

GABIN SUBJECTIVE ELEMENT

In order for gab to occur, in addition to the objective element, there must also be a limited number of subjective elements listed in the law. The source of the disproportion between the acts must arise from the other party's difficult situation (negotiation situation), thoughtlessness or inexperience. The institution of oblivion will come to the fore in cases where the disproportion between the acts, which is an objective element, coexists with the difficult situation, thoughtlessness or inexperience of the other party.

All three situations we have mentioned must be known by the other party. In other words, in order to talk about gab in all three cases we have listed, the other party must be aware of this situation. If the other party does not know about these special circumstances, there will be no intention to exploit, and conditions of absence will not occur. In the decision numbered 2020/2932 K. of the 15th Civil Chamber of the Supreme Court of Appeals, evaluations were made regarding both inexperience, which is the subjective element of negligence, and the intention of exploitation of the other party. According to the relevant decision; "In the concrete case, three of the plaintiff land owners, who relied on the legal reason of ignorance, were not even literate and all of them were housewives over 50 years old as of the date of the contract. It is obvious that they were inexperienced in the construction business. Although the defendant witnesses reported that the land owners met with other contractors, the fact that they had such meetings does not indicate that they had experience in the construction business. The defendant contractor ... is a contractor who carried out construction works in that region and a lawsuit was filed in the administrative jurisdiction for the cancellation of the zoning plans in that place before the date of the contract, "When evaluated together with the statements in the contract stating that even if the zoning application changes, the land owners will not want more than 9 flats, it is understood that he knew or was in a position to know and that the plaintiff took advantage of the land owners' thoughtlessness and inexperience by not informing them about the zoning change and that, as a result, more independent sections could be built on the land."

Many criteria are used to determine whether a state of thoughtlessness or inexperience has occurred. The most important of these criteria are material and spiritual aspects such as the personality, age, health status, place in society, economic power and psychological structure of the person who claims to have been harmed.

Determining the state of the auction is entirely a result of examining the current situation and conditions. Since there may be more than one reason for being in a difficult situation, this situation should be evaluated more carefully than cases of thoughtlessness or inexperience. Situations such as a person being under pressure due to debts and having to establish a contractual relationship with the other party to meet an urgent need can be cited as examples of a difficult situation. It should be noted right away that the difficult situation of the person making the claim must affect him/her to such an extent that he/she cannot establish a contractual relationship with someone else. More accurately, it cannot be said that the person who has a choice is in a difficult situation. In order to better understand the issue, it will be useful to examine the decision No. 2018/1762 K. of the General Assembly of the Supreme Court of Appeals. The relevant decision is as follows.

"Since the plaintiff preferred the defendant hospital, which is further away, instead of applying to the university and state hospitals and other private health institutions on the road route, with the belief that he will receive quicker and better medical intervention and service, it cannot be said that the plaintiff is in a state of negotiation in the sense of constituting the legal institution of the defendant, and the claim that an additional fee is charged in excess of what is shown in the health service procurement contract between the SSI, of which he is a member, and the defendant, is disproportionate. will not be evaluated."

TRADER'S GABIN CLAIM

The ability to talk about gab depends on the coexistence of two subjective elements: the extreme disproportion between the actions of the parties, which is an objective element, as well as the presence of one party in a difficult situation, inexperience and thoughtlessness, and the other party's intention to take advantage of and exploit it. In our legislation, it is regulated that since merchants are more involved in commercial life, the provisions applied to merchants will be different from those of non-merchants.

According to Article 18/2 of the Turkish Commercial Code No. 6102, "The trader must act as a prudent businessman in all his trade activities."

According to the rules of prudence, it is accepted that a trader cannot be inexperienced or thoughtless. This being the case, it is clear that traders cannot claim inexperience or recklessness as a basis for a claim of surprise.

Although merchants cannot rely on thoughtlessness or inexperience, they can rely on the conditions of loss by taking advantage of the situation of bidding in cases where there is excessive disproportion between acts. What is meant by the auction situation is the occurrence of a situation that the trader cannot foresee. As a matter of fact, the Supreme Court of Appeals stated in one of its decisions: "In order to determine whether the defendant Bank was in a state of negotiation due to the conditions it was in at that time, a new expert committee composed of an economist, a banker and University faculty members who are experts in the Law of Obligations should examine the Bank's records and obtain a report that is suitable for auditing and shows the basis. According to the result of all these examinations, it should be determined whether the objective and subjective elements of the situation were realized in the incident or whether the interest rates applied would constitute immorality." "A decision must be made within the framework of the appropriate result to be determined, or whether the plaintiff's request for interest within the framework of the contract constitutes a violation of the objective good faith rule within the meaning of Article 2 of the Civil Code." He said. The conclusion from this is that if traders have allegations of collusion, the necessary research should be carried out to prove this claim and a decision should be made according to the results.

Traders' bidding situation will come to the fore in situations such as their lack of equity capital and the fact that they are under pressure from creditors due to this situation. As a matter of fact, in another recent Supreme Court decision, it was stipulated that the presence of traders in a bid will constitute the subjective element of the gap. Additionally, the decision includes explanations on how the trader's competitive situation should be determined. This decision is as follows.

"The task to be done by the court is to first determine whether the lawsuit was filed within the time limit, and if it is accepted that it was filed within the time limit; to determine the financial situation of the plaintiff in the recent years before 2013, when the fire incident in question occurred, by examining the commercial books and records and accounting documents; from the expert panel of financial advisors on this subject, the plaintiff's business profit and loss for the recent years before the fire damage, the company's equity, the plaintiff's equity. "It is necessary to obtain a detailed report on the current debt-receivable amounts at the date of damage; to examine in detail whether the plaintiff has sufficient equity to eliminate the damage caused by the fire, based on his financial situation before the date of damage; to thoroughly investigate the creditors' claims of compression; to collect party evidence on this issue and to examine whether the subjective element of the loss has been realized." Supreme Court 17th HD. 2019/10033 K.

TO WHICH CONTRACTS IS GABIN APPLIED?

No contractual distinction has been made in terms of the applicability of the cabin conditions. However, it should be noted that contracts that impose debt on both parties will also come to the fore.

Settlement or waiver agreements, which are frequently encountered in practice, can be canceled due to obscurity if the conditions of the signed releases are met. Again, the institution of absence is applicable to all contracts made in private law.

LEGAL CONSEQUENCES OF GABI

Due to the fact that a contract is invalid by gabin, the exploited party may either notify the other party that he is not bound by the contract and ask for his performance to be returned, or may request that the disproportion between the acts be eliminated by adhering to the contract, depending on the nature of the situation. Thus, the exploited party is given a choice.

As a matter of fact, the decision No. 2020/5971 K. of the 11th Civil Chamber of the Supreme Court of Appeals is an example of the issue. The relevant decision is as follows:

"In this case, the court decided to reject the case on the grounds that there was no hostility towards the defendant, the plaintiff had previously filed a lawsuit against the land owners and therefore there was no excuse, and also, in accordance with Article 28 of the Turkish Code of Commerce, the plaintiff was not bound by the contract and could have asked for the return of the performance, or the disproportion between the acts could have been eliminated, and without considering the value of the construction as of the date it was sold to the defendant, and without evaluating the plaintiff's claim in this respect. "For the reasons explained, the decision must be reversed."

IS IT NECESSARY TO FILE A SEPARATE SUIT TO CLAIM GABIN?

There is no need to file a separate lawsuit for the claim of default if conditions of exclusion arise later regarding a lawsuit that is currently pending. The court where the case is heard will examine this claim and make an evaluation on this matter. The defendant may claim negligence in the petition in response to the lawsuit. In practice, since this situation comes to the fore in situations that terminate the case, such as settlement agreements, a need to make a statement has been felt.

But if there is no lawsuit filed, the claim of negligence can only be asserted through a lawsuit. Gabin's claim can be proven with all kinds of evidence. There is no limitation in this regard.

EXCESSIVE Utilization (GABIN) TIME

The legislator has limited the ability to claim negligence to the imprisonment period. The second paragraph of Article 28 of the Code contains regulations regarding when the periods will begin and how long they will be. According to the relevant article; "The injured party may exercise this right within one year, starting from the date on which he learned about his recklessness or inexperience; and in case of being in a difficult situation, within one year starting from the date on which this situation ceases to exist, and in all cases within five years starting from the date on which the contract was established."

Here, the starting date of the periods is arranged differently in terms of the state of negotiation, which is the subjective element of the gap, and the other two subjective elements. In cases of recklessness or inexperience, the disqualifying period starts to run from the date of learning of these situations, while in the case of a contest, the periods will start to run from the moment the difficult situation arises.