SUMMARY: The plaintiff cannot ask for the refund of the fee paid by the defendant due to the fact that the plaintiff preferred to take the failed courses in the summer school, which was opened voluntarily and for a fee, when he had the opportunity to take these courses in the next academic period corresponding to the relevant semester without paying any other fee other than the semester fee. The fee charged by the defendant is in accordance with the procedure.

13th Civil Chamber of the Court of Cassation

E. 2017/1909 K:2020/4660 T. 12.06.2020

The plaintiff stated that he graduated from B University and Risk Management Department in the summer semester of 2014, and that the defendant charged him extra tuition fees, and requested a decision to collect the summer school fee of 19.970,00 TL from the defendant together with interest from the date of collection, without prejudice to his rights regarding the excess.

The defendant argued that the plaintiff voluntarily attended the summer school for the courses he failed, and that the fee charged was in accordance with the legislation, and requested the dismissal of the lawsuit.

The court accepted that the summer school fees paid by the plaintiff student due to the summer schools he attended during the periods when he was not entitled to make-up exams for the courses he failed were contrary to the “honesty rule” in Article 2 of the TMK and that these fees should be deemed as “unfair terms” and partially accepted the lawsuit and decided to partially accept the lawsuit and to refund the 6.020,00 TL receivable to the plaintiff from the defendant with the legal interest to be accrued from the date of the lawsuit, and to reject the plaintiff's request for more; the judgment was appealed by the defendant's attorney.

The dispute between the parties is about whether the fee collected by the defendant under the name of summer school fee is justified or not due to the fact that the plaintiff student studied at the defendant foundation university between the years 2008-2014 and repeated the failed courses in the summer education programs. With the decision of the Presidency of the Council of Higher Education dated 19.06.2012, it was decided to grant the right to make-up exams to all students in all higher education institutions that apply annual and semester exam schedule, effective from the 2011-2012 academic year, and the defendant university decided to apply the make-up exam on 26.06.2012. There is no legal obligation for the defendant to grant the right to make-up exams for the courses failed by the defendant in the period between 2008 and 2012 when the plaintiff studied. The plaintiff cannot ask for the refund of the fee paid by the defendant due to the fact that he preferred to take these courses in the summer school, which was opened voluntarily and for a fee, when he had the opportunity to take these courses in the next academic period corresponding to the relevant period without paying any other fee other than the semester fee. The fee charged by the defendant is in accordance with the procedure. Therefore, while the court should have decided to dismiss the lawsuit, the partial acceptance of the lawsuit with the written justification is contrary to the procedure and the law and requires reversal.

CONCLUSION

For the reasons explained above, it was unanimously decided on 12.06.2020 to VACATE the appealed judgment in favor of the defendant, with the way of decision correction closed pursuant to Article 440/III-1 of the Code of Civil Procedure.