1. Introduction
Purchase and sales of motor vehicle are among the
types of transactions that take place frequently in our country. According to
the data of Istanbul Trade Gazette for 2023, 1 million 881 thousand 97 vehicle
sales were made in the second-hand online passenger car and light commercial
vehicle market. These types of vehicle purchases and sales can be divided into
two; namely commercial and normal ones. The purchase and sale of vehicles
carried out commercially by real or legal persons who carry out this business
as a profession are subject to the Regulation on Trade of Second-Hand Motor
Land Vehicles as well as other provisions. Apart from these, vehicle purchase
and sale transactions carried out by real persons for non-commercial purposes
shall be subject to the provisions of the Article 209 et seq. of the Turkish
Code of Obligations and the provisions of the Turkish Civil Code, which are
general provisions.
2. Sales of Motor Land Vehicles in General
As we have stated, whether the provisions set out under
our law are in the application area varies according to the qualification of
the vehicle sale. Sales for commercial purposes will be subject to the general
rules regarding the sale of movables, as well as the said regulation.
3. Form of Transfer
The transfer of the Motor land vehicles shall, as a
rule, be subject to the provisions regarding transfer of the ownership of
movable property set out under the Article 762 et seq. of the Turkish Civil
Code, since they are in the nature of movable property. Pursuant to the Article
763/1 of the TCC, it is stated that "Transfer of possession is required
for transfer of ownership of movable property" and it is ruled that
transfer of ownership of movable property is subject to transfer of possession.
The Law does not stipulate a formal requirement for
transfers of movables. For this reason, as a rule, transfers of movables can be
realized by transfer of possession without being subject to any form, as long
as the general rules are complied with.
Although this is the case as a rule, there are
regulations in the Highway Traffic Law under the title of "sale,
transfer and registration of vehicles and the authorization and responsibility
related to these transactions".
Pursuant to the Article 20 paragraph (d) of the
Highway Traffic Law, "All kinds of sales and transfers of registered
vehicles are made by notaries based on the registration certificate or
traffic registration records issued in the name of the vehicle owner, provided
that it is determined that there is no debt of motor vehicle tax, default
interest, late fee, tax penalty and traffic administrative fine due to the
vehicle to be sold and transferred and, there is no measure or record
restricting sale and/or transfer on the vehicle.
By stating that “All kinds of sales and
transfers not made by notaries are invalid”, it is ruled that the sale
and transfer transactions of registered vehicles shall be carried out by
notaries and that all kinds of sales and transfers other than this are invalid.
Therefore, in order to validly transfer the ownership
of a motor vehicle registered in the traffic registry, possession of the
vehicle must be transferred based on an official contract executed with the
vehicle owner. The validity of these transactions depends on their execution at
a notary public.
The definition of the term "vehicle"
mentioned in the provision is defined under the law as follows: "It is
the general name of motorized, non-motorized and special purpose vehicles,
construction machinery and rubber-tired tractors that can be used on the
highway." Therefore, transfer of motorized land vehicles, which is the
subject of this article, should also be considered under this scope.
As a result, although movable sales can be realized
without being subject to a formal requirement in accordance with the general
provisions, it is obligatory to realize the sale at notaries in terms of
vehicle sales in accordance with the regulations under the Highway Traffic Law.
The fact that motor vehicles are valuable movables and the need to ensure
transaction security led the legislator to assign this mission to notary
offices by making these special regulations.
4. Realization of the Transfer
As explained in detail above, realization of the sale
and transfer of motor vehicles has been included under the scope of duty of
notaries by the legislator. Therefore, sale of vehicles can be realized by
going to a notary public with the necessary documents.
In other words, although the vehicles registered in
the traffic registry are movable goods in terms of their structure, transfer of
their ownership is subject to a special and specific regulation condition,
unlike movables and immovables. In order to transfer the ownership of a motor
vehicle registered in the traffic registry, possession of the vehicle must be
transferred based on an official contract executed with the vehicle owner.
5. Transfer by Power of Attorney
It is possible to carry out the vehicle sale and
transfer transaction to be carried out at the notary through a power of
attorney. With the valid "power of attorney for sales of vehicle"
given by the vehicle owner, the sale and transfer transaction may be carried
out in the absence of the vehicle owner.
6. Issuance of the Power of Attorney for Sales of Vehicle
As mentioned, the vehicle owner may realize the sale
and transfer transaction without being physically present before the notary.
This transaction is carried out by a "power of attorney for sales of
vehicle". Power of attorney for sales of vehicle is a special power of
attorney and authorizes the relevant person to carry out transactions for and on
behalf of the vehicle owner in terms of sales of vehicle. The power of attorney
is issued by a notary public and signed by the person granting the power of
attorney and the person receiving the power of attorney. The content of the
power of attorney determines which transactions the person to whom the seller
will give power of attorney may perform.
The documents required to give a power of attorney for
sales of vehicle are as follows:
1- Seller's ID card or passport (original copy and
photocopy)
2- Seller's vehicle license (original copy and
photocopy)
3- ID credentials of the buyer (ID card or passport
number, TR ID number)
4- Address information of the recipient
By providing these documents and information to the
notary, the power of attorney for sales of vehicle is issued by the notary
public. It should be noted that the authenticity of these documents and
information should be checked by the notary public. With the validly issued
power of attorney, the proxy is authorized to carry out all transactions that
comply with the content of the power of attorney.
7. Forged Power of Attorney
It is possible that the power of attorney for sale of
vehicle issued by the notary public may be forged or invalid. In particular,
this transaction may be carried out with documents such as stolen ID card /
passport / license. By going to a notary with a stolen ID card / passport and
vehicle license belonging to a person, it will be possible to issue a forged
power of attorney with the signature of a person acting as the vehicle owner.
Serious damages may arise when the notary public tries to sell the relevant
vehicle by the forged power of attorney issued in this way. Similarly, issuance
of a power of attorney for sales of vehicle by forged documents may have the
same troublesome consequences.
The validity of the forged power of attorney and the
validity of the sale/transfer transaction made through this power of attorney
will be discussed in the following sections of our article. Notary offices are
perfectly responsible for issuance of the power of attorney and the
transactions to be made through this power of attorney. Therefore, the
necessary factual examination must be carried out by the notary offices.
8. Invalidity of the Forged Power of Attorney and Sales
of Vehicles By this Document
Forged or stolen documents and powers of attorney
created without the knowledge of the principal of the power of attorney will be
invalid. A power of attorney contract is a contract in which the appointed
proxy undertakes to perform a work or transaction of the principal of the power
of attorney. In case of a forged power of attorney, this contract will be
invalid, as there is often no valid will of the principal of the power of
attorney. Pursuant to the Article 72 of the Notary Act, "The notary is
obliged to learn the identity and address of the persons who will have work
done and their real requests completely. It is an erroneous and incomplete
transaction for the notary to perform transactions by forged documents and to
fail to determine the real owner well." The responsibility of notaries
in the relevant matter is underlined. Therefore, it is very likely that the
responsibility of the notary arises in terms of issuing a forged power of
attorney and the damage incurred for this reason.
Since the forged power of attorney will be invalid,
the vehicle sales transactions performed by this power of attorney will not be
valid. Pursuant to the paragraph (d) of the Article 20 of the HTL (Highway
Traffic Law), in order to acquire the ownership of a motor vehicle, there is a
need for an official contract executed with the vehicle owner, which creates an
obligation to transfer the ownership, and the transfer of possession of the
vehicle for the purpose of transferring ownership.
Since the contract between the parties in the sale and
transfer transaction intended to be carried out by a forged power of attorney
is based on a forged power of attorney, there is unauthorized representation,
and it will not be possible to talk about a valid contract. In this case, the
sale and transfer will be invalid since the condition of a valid contract
cannot be met.
This is also the practice of the Court of
Cassation. The decision, dated 23.3.2021,
and bearing the Basis number #2017/1422 and the Decision number #2021/321, of the
General Assembly of Civil Chambers of the Court of Cassation reads as follows;
"Although the defendant is in good faith,
according to the paragraph (d) of the Article 20 of the HTL (Highway Traffic Law),
there must be a valid contract for transfer of ownership of the vehicles.
However, since the contract between the parties in the case at hand is based on
a forged power of attorney, there is unauthorized representation, and it will
not be possible to talk about a valid contract. Since the registration is
invalid for the defendant, who is in the position of the first hand who
received the assignment by a forged power of attorney, it cannot be said that
the ownership of the vehicle has passed to the defendant, considering that he is
in good faith, and it cannot be accepted that the acceptance of the lawsuit
filed by the plaintiff is conditional on the return of the vehicle price paid
by the defendant." [1]
It has been determined that the sale will be invalid
even in the scenario where the third party who purchases the vehicle by a
forged power of attorney is in good faith.
In this way, even if a registration is made in the
registry about the third party who thinks that he has purchased the vehicle in
good faith, this registration will be corrupt and subsequent transactions based
on the corrupt registration will not be valid. The good faith of subsequent
third parties who perform transactions based on this corrupt registration will
also not be protected. Protection of the rights obtained by bona fide third
parties on the basis of the corrupt registration depends on the existence of a
special regulation on the subject in the law. For example, pursuant to the Article
1023 of the Turkish Civil Code, a third party who acquires ownership or another
right in rem based on the registration in the land registry in good faith is
protected. Since the land registry is kept by the official authorities and is
subject to the principle of publicity, it is intended to protect the good faith
of the third party who relies on these records. In terms of the traffic
registry, there is no such regulation in our law. Therefore, the good faith
claims of third parties who rely on the traffic registry will not be valid.
In other words, the fact that a person who is not
authorized to dispose of a motor vehicle is somehow registered as the owner in
the traffic registry is not sufficient to protect the acquisitions of bona fide
third parties who acquire rights from this person. Because in our law, the
traffic registry does not have the function of disclosing the rights in rem on
the motor vehicle to the outside world, and there is no regulation on the
protection of trust in the appearance reflected by the traffic registry. [2]
To summarize, since the contract between the parties
is based on a forged power of attorney, there is unauthorized representation,
and it will not be possible to talk about a valid contract. Therefore, whether
the third party is in good faith or not, the registration made on its behalf
will be invalid. This situation will not change even if the person who intends to
make a transaction by a forged power of attorney is in possession as a trustee,
for example, if he holds the vehicle by renting it. In other words, the Article
988 of the TCC (Turkish Civil Code) will not be applicable. The person who
holds possession of the motor vehicle by any means with the consent of the
owner (the possessor in the capacity of a trustee) will not be able to make a
valid transfer agreement, since s/he cannot meet the conditions of "having
a registration certificate (license)" or "being registered as the
owner in the traffic registry", which are required for the notarial
execution of the agreement that gives rise to the obligation to transfer the
ownership, under the paragraph (d) of the Article 20 of the HTL (Highway
Traffic Law). Therefore, since transfer of possession without a valid agreement
will not transfer the ownership of the motor vehicle, the third party who
transfers possession will not be able to acquire the ownership of the vehicle,
even if s/he is in good faith [3]. As we have stated, when a fraudulent
registration occurs with a transaction made in this direction, the subsequent
transactions will not be valid even if they are made with bona fide persons.
9. Responsibility
Pursuant to the Article 162 of the Notary Act,
notaries are liable without fault for any damages arising out of their acts.
The plaintiff who is damaged by the action of the notaries must only prove the
appropriate causal link between the damage and the action. In case of a forged
power of attorney, the Court of Cassation is of the opinion that the
appropriate causal link is established, and the liability of the notary arises.
The decision, dated 20.01.2018 and bearing the Basis
number #2016/8992 and the Decision number #2018/385, of the 3rd
Civil Chamber of the Court of Cassation, reads as follows: “It is clear that
the causal link between the action of the notary and the damage incurred has
not been severed, showing that the duty of care has been disrupted due to the
power of attorney issued by the defendant notary based on the forged driving
license document. For this reason, there is no inconsistency in the court's
decision on the liability of the defendant notaries." [4] Emphasis was
placed on the responsibility of the notary who issued the forged power of
attorney.
In this respect, the notary public shall be strictly
liable for the damages incurred in terms of issuance of a forged power of
attorney and the transactions made by this power of attorney. In addition to
this, the persons or institutions who issue the forged power of attorney and
make transactions by this document will also be legally and criminally liable.
10. Conclusion
Sales and transfer of motor vehicles are set out under
special laws. Unlike the general provision regarding movables, the validity of
motor vehicle sales depends on the notary public and the conditions specified.
There is no obstacle for purchase and sales to be made by a power of attorney.
On the other hand, if the power of attorney is forged/invalid, serious damages
may arise. As we have stated, issuance of a forged power of attorney and
execution of transactions by this document give rise to legal and criminal
liabilities, especially on notaries. When the legal validity of the vehicle
sale transaction made by a forged power of attorney is examined, it is
determined that sales and transfer transaction is invalid since a valid
contract will not be formed. In addition, it has been determined that the
registration made in the traffic registry in this way is corrupt, and the
subsequent transfer transactions carried out on the basis of corrupt
registration will be invalid regardless of the good intentions of the parties.
Halit Ata Yıldırım, Legal Intern
References:
1. The decision,
bearing the Basis number #2017/1422 and the Decision number #2021/321, and dated
23.03.2021, of the Assembly of Civil Chambers of the Court of Cessation
2. Özçelik, B.:
Motorlu Araç Mülkiyetinin Yetkisiz Kimseden Devralınması ve Sonuçları, Journal
of the Faculty of Law, Ankara University, Vol. 68, Issue. 4, p. 841
3. Özçelik, B.:
Motorlu Araç Mülkiyetinin Yetkisiz Kimseden Devralınması ve Sonuçları, Journal
of the Faculty of Law, Ankara University, Vol. 68, Issue. 4, p. 847
