SAMPLE OBJECTION LETTER TO EXPERT REPORT UNDER THE HANDCRAFTING AGREEMENT
OBJECTION LETTER TO THE EXPERT WITNESS REPORT
CASE NO: ………….
SUBJECT: Objection to the Expert Report dated ……… Decision.
EXPLANATIONS:
1- …………… and …………………. as landlords; and Varan ……………………., as tenants, have entered into a lease agreement for the Office Floor property located at ……………………………………….. address, with a commencement date of 15-03-2019 and a term of 3 years.
2- The relevant court of the Istanbul Civil Court of the Republic of Turkey, with the relevant file number, requested an expert report from the expert witness, and based on the expert report, submitted to the file the results of the examination of the disputed property, amounting to 89,521 TL (Eighty-Nine Thousand Five Hundred Twenty-One Turkish Lira) in different items. In the expert report, the opposing party, requesting the determination, defended itself by referring to Article 16 of the lease agreement, stating that 'all improvements, etc., made to the property as a result of the lease agreement will be left to the lessor free of charge.'.
As legal representatives, we would like to state first and foremost that we object to the relevant clause of the contract and, consequently, to the expert report. Since it is our duty to express our views, we explain our objections as follows:
As a result of our research into the dispute in question, we would like to state that the matter falls under the category of a 'Restrictive Contract'. To explain further, a restrictive contract 'a contract made in such a way as to limit the economic freedom of one party to the other' . As Professor Dr. Kemal Oğuzman explained: 'If a contract excessively restricts the economic freedom of one party, ..., it may be deemed null and void due to immorality.'
In the context of the "Restrictive Contract" agreement, two key criteria stand out for a contract to fall within the scope of this specific case:
Conditions:
- Economic Freedom or Wealth at Risk
If a contract is entered into regarding a matter that would impose an excessive burden on one party, causing difficulties in commercial or normal economic life, that contract will be considered a restrictive contract.
- Balance Between Performance and Counter-Performance and Excessive Exploitation
If a contract reveals an extreme imbalance, or even a kind of excessive exploitation, between the obligations within its terms, then the issue of imbalance and excessive exploitation will arise.
Sanctions in Case of a Handcuffing Agreement
There are two views in legal doctrine regarding this issue. The first view is that such transactions are subject to the sanction of voidability, while the second view is that such transactions are null and void.
The first view is that, according to Article 23/2 of the Turkish Civil Code, no one can relinquish their freedoms or restrict them in a manner contrary to morality.
The second view, again based on Article 23/2 of the Turkish Civil Code, refers to Articles 26-27 of the Turkish Code of Obligations. The prevailing view in legal doctrine is focused on the second view, and for this reason, we feel the need to explain it. According to this view, contracts can be made within the limits set by law, and contracts that violate mandatory provisions of the law, morality, public order, personal rights, or whose subject matter is impossible are absolutely null and void (Turkish Code of Obligations, Article 27/1).
According to the decision of the 3rd Civil Chamber of the Turkish Supreme Court of Appeals, Case No. 2019/3110, Decision No. 2020/534, dated January 22, 2020, the ruling regarding a long-term gratuitous lease relationship is as follows: '...that the party in question aimed to secure itself by not paying any rent for years according to the protocols received, that there was no 99-year lease as alleged, and that the protocols, by their nature, were binding contracts and therefore absolutely null and void according to Article 27 of the Turkish Code of Obligations...'
According to the decision of the 11th Civil Chamber of the Turkish Supreme Court of Appeals, Case No. 2017/5343, Decision No. 2019/1793, dated March 4, 2019, the definition of a 'restrictive contract' is as follows: ' According to Article 27 of the Turkish Code of Obligations, contracts that restrict economic freedom and labor rights in a manner contrary to law, public order, personal rights, morality and decency, or that contain an impossible performance, are subject to the legal sanction of "absolute nullity". However, in order for a contract provision, also called Restrictive Contracts (Knebelungs Vertreage / Oppressive Contract) in legal doctrine, to be deemed invalid;
The obligation to perform or refrain from certain commercial activities undertaken in the contract must, in terms of content, geographical area, or duration, be of a nature that excessively jeopardizes the economic freedom or existence of the other party, thereby creating a kind of dependence and causing distress (A. Ü., Handcuffing Contracts, p. 120 et seq.).
Whether a contractual provision falls into this category must be assessed by the court on a case-by-case basis, taking into account the specifics and circumstances of each concrete situation
In our opinion, this decision, which we consider accurate, stipulates that transactions that endanger economic freedom should be evaluated within the scope of a contract of restraint; however, as a method of resolution, the supreme court must make its discretion regarding this issue, which creates an imbalance between the existing obligations due to the nature of the case, according to the specific characteristics of the concrete matter.
OUR OPINION BASED ON THE SPECIFIC CHARACTERISTICS OF THE CASE
There is a contract between the landlord and the tenant for a monthly rent of 1,000 TL, totaling 12,000 TL annually. In this specific case, although the landlord has made a certain investment in the property, the ownership rights naturally belong to them. However, as confirmed by the expert report, the contract stipulates that an investment of approximately 89,000 TL will be transferred to the landlord in its entirety and FREE of charge . Based on our reasoning above, this provision constitutes a "restrictive contract ." It is also worth noting that while the landlord's statements and the contract being described as a restrictive contract may not apply to the entire contract, at least the relevant clause forming the basis of the expert report constitutes a kind of restrictive contract provision.
OUR OBJECTIONS TO THE EXPERT ASSESSMENT REPORT
The amounts determined in the relevant expert report do not reflect the truth. The amounts, which can be easily found even through a simple internet search, are far from the amounts used in the report, raising doubts about whether the report contains accurate findings (Appendix-1).
CONCLUSION AND REQUEST
- In light of the explanations given above, the statements that are the subject of the expert report should be subject to the sanction of ABSOLUTE NULLITY – VOID under the Handcuffing Agreement, and the court should rule accordingly
- We request that our objection to the expert report be accepted and that an appropriate judgment be made regarding the expert report
With our utmost respect for our court, we respectfully request that the necessary action be taken.
About Post Author
