ERDEM-NEWSLETTER-2018-metin

390 NEWSLETTER 2018 The Court of Cassation Decisions Related to the Issue and the Conclusion that the General Assembly of the Unification of Case Law Have been Rendered The Court of Cassation has differing decisions on this subject. For instance, the 4th Civil Chamber of the Court of Cassation concluded in its decision dated 7.6.2016 as follows: “The decision must be reversed as it is not proper to accept the claim while it is required to completely decline it, considering the fact that the loyalty obligation belongs only to the spouse, and it is not possible to claim compensation by way of ref lection. It is not possible to hold that an illegal act has been committed by the Respondent/Counterclaimant contrary to the physical and psychological unity of the Claimant. The related Law has no provision with regard to the person with whom the spouse has breached his/her obligation. It is not possible to apply the pro- visions with regard to joint liability under the Turkish Code of Obligations numbered 6098. The Respondent/Counterclaimant cannot be held principally liable because of the damages suffered. In the same line, no joining act is required within the terms of existing legal provisions in order to accept an existence of an act that has been committed jointly. It is required that this act has been committed independently and principally. Moreover, consi- dering tort liability within the framework of joining the breach of the loyalty obligation, which is a rather grand and ambiguous concept, this would render liability even more uncertain. For the reasons explained, above, as per Article 58 of the Turkish Code of Obligations, the acts of the Respondent/Counterclaimant may not be considered as acts that constitute an attack against the personal values of the Claimant. On the other hand, if the Respondent Counter-Claimant and the Claimant are divorcing, consensually, then the parties have declared that they have no material nor moral compensation claims against each other. In this instance, it must be accepted that the Claimant has waived its right to moral damages from the Respondent/Counterclaimant from any suffering during the marriage, in a consensual divorce. The Claimant cannot claim that a tort has been committed aga- inst him/her after the divorce has been granted. For this reason, it is required that the Court reject the claim of the Respondent/ Counterclaimant, and partial acceptance of any tort claim is not allowed. For this reason, the decision is quashed.” 5 5 Court of Cassartion 4th CC, 7.6.2016, No. 196/7383; Court of Cassartion 4th CC,