Sebepsiz zenginleşmeden doğan borçlarda kötü niyetli zenginleşenin iade borcu
Enriched person's with bad faith obligation of giving back from in obligations resulted from unjust enrichment
- Tez No: 141453
- Danışmanlar: DOÇ. DR. ÇİĞDEM KIRCI
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2004
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Özel Hukuk Ana Bilim Dalı
- Bilim Dalı: Medeni Hukuk Bilim Dalı
- Sayfa Sayısı: 255
Özet
Özet yok.
Özet (Çeviri)
According to the relevant law, unjust enrichment is an obligation which is the result of the acqusition of the property by a tort. But, tort and the acqusition of the property is not a necessity for the unjust enrichment. All of the enrichment which has no legal basis should be returned. Unjust enrichment is considered to be an addition to other legal suituations. Moreover, through unjust enrichment, the other legal regulations are corrected. Therefore, it has a profound importance for the society. Which makes it so deeply important is that it brings about an obligation to return. The right which is the result of unjust enrichment is claimed only aganist the person who has enriched in an unjust manner. Existence or lack of other sources of obligation is not directly linked to unjust enrichment. Unjust enrichment may be together with the responsibility for tort and responsibility for sort of unauthorized transaction. Unjust enrichment may result from a payment of creditor, a behaviour of debtor or unexpected event. The prerequisities of unjust enrichment : There must be enrichment in the property of a person, there must be a decrease in the value of property of other person, the enrichment must be without any legal ground, a causal relation between the benefit and the decrease is also necesarry. 229Acording to a recent consideration in Turkish-Swiss law, getting poorer is not a precondition for unjust enrichment. This view is right since it doesnt accept insufficient loss in classical view. But without precondition of loss some other unjust results may come out. Debtor returns his/her own enrichment gainings or he/she returns the enrichment which is gained on the expence of others. Therefore loss must be a precondition. Just like the enrichment, the objective amount of the loss must be determined. Those can not be reclaimed wich were not given for legal or moral purposes. Unjust enrichment has two essential results. First of those is the obligation of return of the enrichment, second one is the right to claim the costs. The scope of those depend on whether the enriched person has good faith or bad faith. The one who has good faith on demand returns only what is the remaining. On the other hand, the one with bad faith is under obligation to return all the amount. If the enriched person with good faith still has the possession of the property, he/she is under the obligation to return it completely. It is not enough not having the possesion of the property, presently. There should be no benefit to be got in exchange of losing the property. Those who know or should know that the enrichment is not on the legal basis are considered to be in bad faith. 230The enriched person should return what he got, if this is not possible, in this case, the value of the property should be returned. The one in bad faith should return the essential reason of the enrichment and all of its benefits. Furthermore, the one in bad faith should return the parts which is no longer in his/her/its possetion. The value of the returning or the repayment obligation the one in bad faith should be determined according to the date with the highest value. The enriched person may use some of his/her losses to decrease the amount of obligation of return. The enriched person with bad faith may only use this right for the costs which were permitted under the Law of Obligation Art. 64. However, sometimes, justice requires to consider some other costs under this scope. Those should be taken into consideration to make a just decision : the kind of the reason of the unjust enrichment, faults and responsibilities of the parties, being in good or bad faith, economical conditions of the parties, contribution of the parties to the causal relation, and so on... It would be impossible to return what was has been got if the enriched person no longer has it. If debtor has any fault, the responsibility of obligation remains under the Law of Obligation Art 96. If debtor has no fault his/her obligation terminates under Law of Obligation Art. 117/1. If debtor delays the return the enrichment, he/she is considered to be faulty. 231If the debtor persist on not repaying his/her debt, inspite it has already been demanded, the debtor is subject to a delay interest. For this reason, no delay interest may be demanded without a prior repayment request. The obligation of repayment or return of the enriched is limited with the amount of enrichment and the loss. The amount of the obligation of return can no more than the lower of those. The enriched person with bad faith should return the amount of the enrichment with its highest value. Differences all the economical transactions means should not effect the amount of the obligation of return. For example; if the financial value of the amount of the obligation is erosioned due to the enflation, the loss shold be compensated. in case of invalid contract, and if the contract is implemented there are two separate unjust enrichment. Both sides does not have to what they possesed, unless they get what they gave. Likewise, the enriched person does not have to return unless his/her losses which may be claimed from creditor have not been compensated. There are two kinds of time limits for unjust enrichment. Creditor must sue in a year just after he/she learn about the case of unjust enrichment. There is a general time limit of ten years to go to court, whether he/she is aware of the unjust enrichment or not. 232
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