The Principle that the Little is Included in the Much

The Principle That the Lesser Is Included in the Greater | Legal Information | Lawyer in Izmir | Efes Law Firm

The principle that the lesser is included in the greater is Latin. “In toto et pars continetur” This is the Turkish equivalent of the expression and is frequently encountered in Supreme Court decisions. It can be understood as meaning that, especially when making comparisons, the principle of fairness should also be considered within the scope of the decision in question. In the context of this principle, it can be interpreted as meaning that the judgment should be rendered by considering the specific characteristics of the case in order to prevent either party from being harmed.

Supreme Court 19th Civil Chamber, Case No. 2016/12208, Decision No. 2017/268

“DECISION: The plaintiff’s attorney claimed that his client purchased a brand new (0) km 2012 Model Ford Transit 370 L from the defendant company, but the purchased vehicle did not have the specified features and was therefore defective, and requested and sued for a decision to replace the defective vehicle with a new one, or failing that, to refund the price of the vehicle.

The defendant's attorney requested the dismissal of the case, stating that the vehicle in question was not defective, that the issues the plaintiff considered deficiencies did not constitute defects, and that the plaintiff had not consented to the rectification of these deficiencies.

The decision of the court, acting as a Consumer Court, accepting the case, was overturned by our Chamber's ruling dated March 4, 2015, numbered 2014/16891 E. – 2015/2977 K., on the grounds that "Since the dispute in question cannot be evaluated within the scope of the Law No. 4077 on the Protection of Consumers, the court's task is to consider that the parties are merchants and the vehicle in question is a commercial vehicle, and to apply the provisions of the Turkish Commercial Code to the specific case, and to render a decision based on the appropriate conclusion reached by formulating a reasoning accordingly.".

Mahkemece bozmaya uyularak yapılan yargılama sonucunda, satıma konu ticari aracın üretimden kaynaklı ayıplı olduğu, ayıpların gizli ayıp niteliğinde olmadığı, araçtaki ayıbın süresinde satıcıya bildirildiği, araç üzerindeki açık ayıpların aracın ayıpsız misli ile değiştirilmesini yahut araç bedelinin iadesini gerektirmediği, aracın satış anındaki değer kaybının aracın satış değerinin %15’i tutarında ( 8.096,57 TL ) olacağı, Although the plaintiff's request was for a product exchange, according to the principle that "the greater includes the lesser,", The court partially accepted and partially rejected the claim, ruling that it would be appropriate to collect from the defendant the amount of the vehicle's depreciation in value at the time of sale, rejecting the request for replacement of the vehicle, and ordering the defendant to pay 8,096.57 TL with interest. The judgment was appealed by the defendant's attorney and, through intervention, by the plaintiff's attorney.

The lawsuit concerns a claim for the return of a defective vehicle or the recovery of its price, as stipulated in the sales contract. According to Article 23/1-c of the Turkish Commercial Code No. 6102, if the defect in the goods is clearly evident at the time of delivery, the buyer must notify the seller within two days. If it is not clearly evident, the buyer is obligated to inspect or have the goods inspected within eight days of receiving them, and if the inspection reveals defects, the buyer must notify the seller within the two or eight-day period. In this specific case, the vehicle in question was delivered to the plaintiff buyer on September 19, 2012. It is understood from the statement of the plaintiff's attorney in the file and the content of the notice that the defects in the vehicle were learned on the same day, and the notification of the defects was made on October 19, 2012. Therefore, in accordance with the principles explained, the decision should have been made by focusing on whether the notification obligation was fulfilled within the time limit, but the decision was made in writing due to insufficient examination, which is incorrect, and the judgment must be overturned.”

Court of Cassation, 13th Civil Chamber, Case No. 2014/13492, Decision No. 2015/919, Date: January 22, 2015

“Article 4/A of the law stipulates that "services containing civil, legal, or economic deficiencies that contradict the quality or quantity affecting the quality as determined from the advertisements, announcements, standards, or technical rules declared by the provider, or that reduce or eliminate the value or benefits expected by the consumer in terms of their intended use, are considered defective services." In this case, the consumer may request termination of the contract, re-performance of the service, or a price reduction proportional to the defect.. In this specific case, although the plaintiff chose the option of refunding the service fee in their lawsuit, since the plaintiff benefited from the service, it must be accepted that the plaintiff's claim is for a price reduction proportional to the defect, in accordance with the principle that "the lesser is included in the greater.". This acceptance also MK.‘This is also a requirement of the principle of honesty and good faith, as expressed in Article 2 of the law. Therefore, the evidence in the file should be evaluated, the amount of the reduction due to defects in service should be determined, and a decision should be made accordingly. The court's decision to order the plaintiff to pay the entire accommodation cost without considering whether the plaintiff benefited from the service is contrary to procedure and law and constitutes grounds for reversal.”

Court of Cassation, 13th Civil Chamber, Case No. 2010/8333, Decision No. 2010/16575

...the plaintiff requested a refund of the purchase price of the vehicle due to its defect, or alternatively, a replacement with a new one. The defendants argued for the dismissal of the case. The court, based on an expert examination, determined that the wheel covers should be replaced, but dismissed the case on the grounds that the plaintiff's request was for a refund. According to Article 30 of Law No. 4077, general provisions apply in cases where there is no provision in this law. Article 202 of the law stipulates that if the judge does not deem the termination of the sale justifiable under the circumstances, a reduction in the price may be ordered. Therefore, even if the conditions for vehicle replacement or refund were not met, since it is understood from the case file that the wheels were defective and the court also accepted this, according to the principle that the lesser is included in the greater, a decision should have been made to recover the price of the defective wheel covers. The decision to the contrary is contrary to procedural law and requires reversal.

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