The Decision of the Supreme Court to Demand Compensation Arising from the Tort Decriminalization Between the Merchants

T.C.
SUPREME
4. law office
MAIN NUMBER: 2016/6461
DECISION NO: 2018/777
DECISION DATE: 12.2.2018

>>REQUEST FOR COMPENSATION ARISING FROM A TORT BETWEEN MERCHANTS – ABSENCE OF THE LEGAL ENTITY OF THE ORDINARY PARTNERSHIP – INCLUSION OF ALL PERSONS FORMING THE PARTNERSHIP IN THE Decease

2004/m.67

ABSTRACT: In an ordinary partnership, since the partnership does not have a legal entity, it does not have a capacity for hostility as a mere ordinary partnership, and only one of the partners has the right and authority to file a lawsuit, or it is not possible to file a lawsuit against one of them. In other words, in the case that will be opened at the end of the disputes that will arise due to the work and transactions carried out in the form of an ordinary partnership, all persons forming the partnership must be shown as parties to the case. In the event subject to the lawsuit, the work to be performed is undertaken as an ordinary partnership by the defendant and the non-litigant commercial enterprise, so the other partner should be a party to the lawsuit in addition to the defendant. It is contrary to the procedure and law for the court to continue the trial and establish a verdict by examining the merits of the business without ensuring the participation of the other entity forming the ordinary partnership in the case.

LAWSUIT : By the plaintiff Communication Services Joint Stock Company attorneys, the defendant Haf. Insh. Taah. Nac. Renown. and tic. Ltd. Şti. on the day the petition for compensation arising from tort against 21/11/2014 between merchants made available upon request by the court at the end of the trial; the case to the Supreme Court decision dated as of 27/10/2015 partially given for adoption investigation of first instance the parties within the period requested, but once the petition of Appeal has been decided upon the adoption of the examination by the judge with the report was discussed by examining the papers in the file:

Decisionthe case is related to the claim for compensation arising from the tort between the merchants. The court has decided to partially accept the case; the decision was appealed by the deputies of the parties.The plaintiff’s attorney stated that the necessary measures were not taken during the road construction, of which the defendant company is the contractor, and therefore the infrastructure facilities belonging to his client’s company were damaged, and requested compensation for the damage caused.The defendant’s attorney the defendant company, and electrical contracting out of the case hafriyet Trading made by a joint venture, other entity should be included in the case, the case that is also substantive objections forced by friendship between them that should have dismissed the case argued.

The court decided to partially accept the case based on the expert report.In the examination of the contract for the Paving Road Construction Work dated 23/07/2012 contained in the file, it was Deciphered that the contract was signed between the Municipal Science Works Directorate and Hafriyat Construction Contracting Transportation Trade Limited Company-Hafriyet Electricity Contracting Trade Partnership. In this respect, it should be acknowledged that the relationship between the defendant and the Decommissioned commercial enterprise is in the nature of an ordinary partnership and that they have received the tender subject as an ordinary partnership. In an ordinary partnership, since the partnership does not have a legal entity, it does not have a capacity for hostility as a mere ordinary partnership, and only one of the partners has the right and authority to file a lawsuit, or it is not possible to file a lawsuit against someone. In other words, in the case that will be opened at the end of the disputes that will arise due to the work and transactions carried out in the form of an ordinary partnership, all persons forming the partnership must be shown as parties to the case. In the event subject to the lawsuit, the work to be performed is undertaken by the defendant and the non-litigant commercial enterprise as an ordinary partnership, so the other partner, Hafriyet Elektrik Taahhut Ticaret, must also take part in the lawsuit as a party in addition to the defendant. Ignoring this aspect mentioned by the court, the decision had to be overturned, since the fact that the other entity forming the ordinary partnership continued to judge by examining the merits of the business without ensuring its participation in the case and the judgment was established in writing was not in accordance with the procedure and the law.

CONCLUSION: It was unanimously decided on 12.02.2018 that the appealed decision was OVERTURNED for the reasons described above, that there is no place to examine the other appeals of the parties according to the reason for the reversal, and that the fee received in advance from the parties will be refunded if requested.

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