Despite the freedom of the contract, one of the parties exploiting the weakness of the other party by creating an excessive value difference between the acts is called lesion, that is, excessive exploitation/overuse. It is a clear restriction on the freedom of contract.
Turkish Code of Obligations article 28/1:
“If there is a clear disproportion between reciprocal acts in a contract, if this disproportion is realized by taking advantage of the injured party’s difficulty or thoughtlessness or inexperience; According to the nature of the situation, the injured party may notify the other party that he is not bound by the contract, and may request the return of the performance or the elimination of the disproportion between the acts by adhering to the contract.”
In order for us to talk about the existence of Lesion, some conditions must be met;
- The mutual obligations owed by the contract must be clearly different from each other. The determination of this difference is at the discretion of the judge.
- The injured party must be in a weaker position compared to the other party. In other words, the person’s ignorance, inexperience or excessive use of the difficult situation must be in question.
- The harming party must have an intention to exploit. The one who causes harm should know the special situation of the injured party and should knowingly benefit from this situation.
The legal purpose of the Lesion and the necessary conditions for its existence are also clearly stated in the decision of the 1st Civil Chamber of the Court of Cassation, dated 01.10.2012, Main 2012/10938, Decision 2012/10436;
“…In order for the contract to be considered as illegitimate due to the lesion, the disproportion between the performance and the counter-performance must occur as a result of one of the parties knowingly exploiting a special situation existing in the person of the other. Arrangements have also been made in our law in order to protect the people who have been dragged into making contracts and transferring their properties at very low prices due to their narrow and difficult situation, so that the weak do not oppress the strong. In that case, in order to be able to talk about the lesion, besides the extreme disproportion between the acts, which are the objective elements, one side must be in distress, inexperience, and thoughtlessness (lightness). At the same time, it depends on the realization of even two subjective elements, in the form of the other party’s intention to exploit. The existence of the lost (exploited) person gives the right to declare that he is not bound by the contract within one year from the date of the contract, to prove his claim with all kinds of evidence, and to demand it back, by declaring that he is not bound by the contract…In the Lesion case, first of all, the extreme disproportion between the acts should be emphasized, and if the objective element is proven, the material and spiritual aspects such as the person’s; characterists, age, health status, place in the society, economic power, psychological structure, namely the subjective element should be investigated and examined in depth…”
In the case of Lesion, some rights have been granted to the injured person, depending on the nature of the situation. In addition to demanding the return of the performance by notifying the other party that it is not bound by the contract, the right to demand the elimination of the disproportion between the acts by adhering to the contract is also recognized. The contract with excessive use is valid from the beginning, but the contract becomes invalid from the beginning when the right defined in the law is exercised within the time limit. In other words, there is “perturbable validity” here.
For the exercise of this right, certain periods are stipulated in the Article 28 of the TCO. Accordingly, the injured person learned this right, thoughtlessness or inexperience; In case of being in a difficult situation, it should be used within one year starting from the date when this situation disappears. In any case, it can be used within five years starting from the date of establishment of the contract. This right is used with a unilateral statement, there is no need to file a lawsuit. Since it is a period of disqualification, it will be taken into account by the judge on its own(Ex officio), so care should be taken with the duration!
The existence of this situation, which cannot be taken into account by the judge ex officio, can only be claimed by the injured party. Even if the contract, which was established with the effect of the lesion, is kept standing by the application of Article 39/2 of the TCO by analogy, the injured may demand compensation for the loss incurred due to the lesion.
You can prevent such grievances and take the necessary precautions by getting support from a lawyer before making a contract. For similar situations that you are exposed to, it is also very important to seek legal assistance to eliminate your grievances as soon as possible. You can contact us to get help and support in all matters related to contract law.
