SUMMARY: As emphasized in many decisions of the Court of Cassation, the contract that includes the creditor's waiver of the right to receivables and thus the debtor's release from debt is called “release”. The release is binding limited to the payment made to the employee. The release signed before the entry into force of the Turkish Code of Obligations No. 6098 is a valid release and since it is understood that the plaintiffs were paid moral damages with the release, the court should decide to reject the claims for moral damages, while awarding moral damages in violation of the rule that moral damages cannot be divided is contrary to the procedure and the law and is a reason for reversal.

21st Civil Chamber of the Court of Cassation

E:2019/6513 K:2020/3003 T:30/06/2020

The plaintiff demanded a decision for the payment of pecuniary and non-pecuniary damages arising from the death of his deceased son as a result of an occupational accident. The court complied with the reversal and decided to partially accept the request as stated in the judgment. Upon the appeal of the verdict by the attorneys of the plaintiffs and the defendants ... Heirs ... etc., after it was understood that the request for appeal was in due time, the papers in the file were read, the necessity of the matter was considered and the following decision was given.

DECISION

1- According to the writings in the file, the fact that the judgment was rendered in accordance with the previous Court of Cassation reversal decision, and that there is no legal and legal necessity to re-examine the aspects that have become final with the reversal and constitute a vested right for the benefit of the other party; the other appellate objections of the attorneys of the defendants ..., ..., ... and the plaintiffs' attorneys other than the scope of the following paragraph are rejected

2- The lawsuit is related to the claim for compensation of pecuniary and non-pecuniary damages of the relatives of the insured who died as a result of an occupational accident. The court decided that there is no need to make a decision for this defendant since the lawsuit filed against the defendant ... Elektrik Dağıtım A.Ş. has been postponed, the lawsuit against the defendant .... 08.08.1999, which is the date of death, together with the legal interest to be accrued from the date of death of the defendant ..., ..., ... and ..., who died during the trial, jointly and severally from the internal defendants ..., ... and ..., who are the heirs of the defendant ..., who died during the trial phase, as determined in the certificate of inheritance dated 25.01.2010 and numbered 2009/585 Main and 2010/27 Decision of the I... 7th Civil Court of Peace, and to give them to the plaintiffs, and to reject the claim for the excess. The dispute is on whether the moral damage can be divided or not. Indeed, the pain and sorrow suffered due to an unlawful act is a state that is felt and should be felt at that time. In other words, it is not possible to divide the non-pecuniary damages by spreading the sorrow and pain over time, to make a part of it the subject of the lawsuit and to reserve the rest. Non-pecuniary damages cannot be divided. It must be requested at once. The decisions of the Supreme Court of Appeals HCJ dated 25.9.1996 and numbered 1996/21-397-637 and dated 13.10.1999 and numbered 1999/21-684-818 are in this direction.

It is understood that the release dated 24/04/2014 states that the plaintiffs were paid 45.000,00 TL, and the attorneys of the plaintiffs Ramazan and Güllü explained the damages and amounts of 45.000,00 TL with the petition dated 16/02/2018. As emphasized in many decisions of the Court of Cassation, the contract that includes the creditor's waiver of the creditor's right to claim and thus the debtor's release from debt is called “release”. The release is binding limited to the payment made to the employee. The release signed before the entry into force of the Turkish Code of Obligations No. 6098 is a valid release and since it is understood that the plaintiffs were paid moral damages with the release, the court should decide to reject the claims for moral damages, while awarding moral damages in violation of the rule that moral damages cannot be divided is against the procedure and the law and is a reason for reversal. On the other hand, since it is understood that the defendant ... waived its claims for trial expenses and attorney fees due to this lawsuit, it was erroneous not to take this into consideration when making a decision regarding trial expenses and attorney fees. Therefore, the objections of the plaintiffs' attorneys and the defendants ..., ..., ..., ... attorneys aiming at these aspects should be accepted and the judgment should be reversed.

CONCLUSION

It was unanimously decided on 30/06/2020 that the judgment shall be reversed for the reasons explained above, and the appeal fee shall be refunded to those concerned upon request.