What is Gabin?

What is Gabin? | Izmir Lawyer

What is "gabin" by definition? It means "excessive exploitation." It describes a clear disproportion between the obligations mutually performed in a contract. In a gabin situation, where one party is in a weaker position and the other party seeks to take advantage of this situation, the legal provision grants the party that has benefited excessively the right to demand redress of the disproportion. In this way, an attempt is made to ensure a balance of obligations between the parties in the contract and to prevent the abuse of contractual freedom.

Freedom of Contract and its Limits:

The general principle accepted in the law of obligations is freedom of contract. According to this principle, individuals can freely determine the content of their contracts within the limits prescribed by law. They can formulate the contract provisions as they wish and mutually assume any obligation they desire. According to Article 27 of the Turkish Code of Obligations;

Contracts that violate mandatory provisions of law, morality, public order, personal rights, or whose subject matter is impossible are absolutely null and void. The nullity of a part of the contract for these reasons does not render the entire contract null and void. However, if the nullified parts constitute the foundation of the contract, that is, if it is clearly understood that the contract could not have been concluded without these provisions, then the contract becomes entirely null and void.

Elements of Gabin:

The elements of usury are limited in number and listed in the law. These include one party being in a difficult situation or lacking experience, and the other party attempting to take advantage of this situation. However, this difficult situation arises when the person's life or property is threatened.

Gabinin Oformation İChinese;

1. There is a clear disproportion between the actions.
2. This disproportion must stem from one of the parties being in a difficult situation, due to recklessness or inexperience.,
3. The other party must have benefited from the injured party's predicament.

If we examine the relevant article of the law:

Turkish Code of Obligations III. Excessive exploitation

ARTICLE 28- If a contract contains a clear disproportion between the reciprocal performances, and this disproportion was achieved by taking advantage of the injured party's difficult circumstances, imprudence, or inexperience, the injured party may, depending on the circumstances, either notify the other party that they are no longer bound by the contract and demand the return of their performance, or remain bound by the contract and demand that the disproportion between the performances be remedied. The injured party may exercise this right within one year from the date they learned of their imprudence or inexperience; in the case of difficult circumstances, from the date these circumstances ceased to exist, and in any case, within five years from the date the contract was concluded.

Consequences of the Gabin:

If a contract involves usury (gabin), the contract will be annulled, the obligations will not be fulfilled, and any received amounts will be returned. In some cases, such as when a person's assets are lost, a lawsuit based on usury will be filed. To illustrate with an example, a lawsuit for the annulment and registration of a title deed will be filed with the civil court of first instance in the location where the immovable property is situated. When filing a usury lawsuit, the claim must be stated fully and accurately, and supported by relevant legal articles and Supreme Court decisions.

Our law stipulates one-year and five-year periods as forfeiture periods for claims of exploitation (gabin). While the one-year period begins from the moment the person who benefited from the other's inexperience learns of it, in any case, the claim of exploitation must be made within five years from the date the contract was concluded.

Supreme Court Decisions Regarding Usury (Gabin):

Turkish Supreme Court, 1st Civil Chamber, Case No. 2012/10938, Decision No. 2012/10436, Date: October 1, 2012:

For a contract to be considered a form of exploitation (gabin), two objective elements are necessary: extreme disproportion, and subjective elements: one party being in dire straits, lacking experience, or acting recklessly, and the other party having the intention to benefit or exploit. The existence of a contract grants the exploited party the right to declare that they are not bound by the contract within a one-year statute of limitations, to file a lawsuit for annulment, and to reclaim what they have given, supported by all available evidence. However, in a lawsuit concerning a contract of exploitation, the objective elements should be prioritized; if the objective elements are proven, subjective factors such as personality, age, health status, and economic power should be thoroughly investigated.

Turkish Supreme Court, 1st Civil Chamber, Case No: 2014/2376, Decision No: 2015/3233 K. Date: March 4, 2015

Considering the date of death of the deceased, the estate is subject to joint ownership. In this case, there are other heirs besides the plaintiff. In lawsuits concerning torts arising from ownership rights, such as those based on incapacity, abuse of power, error, fraud, or undue influence, all heirs must act together, file the lawsuit jointly, or, if one heir files a lawsuit concerning the estate, all heirs must be represented in the lawsuit. However, in this specific case, even though the plaintiffs have filed a lawsuit based on error, fraud, or undue influence, it is not possible to say that the lawsuit is admissible.

TC. YArgıtay 4.Hlaw Dairesi 25.1.1949 T. 1949/611 E. 1949/231 K.:

“The lawsuit consists of a claim for termination of the contract due to usury, error, and fraud. Since each of these is subject to different provisions of the Code of Obligations, the plaintiff must be asked which of these three types of usury, error, and fraud the lawsuit is based on, and the plaintiff must clarify this before a hearing can be held. The judgment is REVERSED.”

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