İş Hukuku Açısından İbra Sözleşmesinin Niteliği


2019-09-25 05:09:24

İş Hukuku Açısından İbra Sözleşmesinin Niteliği


Türk Borçlar Kanunu madde 420 hükmü ile ceza koşulu ve ibra başlığı altında hizmet sözleşmelerinde cezai şart ve ibraname konusu ele alınmıştır. İbra, borçluyu henüz borcu ifa etmeden borcundan kurtarmak hususunda borçluyla alacaklının anlaşması anlamına gelir. Başka bir ifade ile, tarafların aralarındaki mevcut bir borcu kısmen veya tamamen ortadan kaldırmaya ve bu suretle borçluyu borcundan kurtarmaya yönelik olarak anlaşmayı ifade eder. Bu çerçevede ibra ile borç, doğrudan doğruya ve kesin olarak ortadan kalkar. Türk Borçlar Kanunu ise m. 132 hükmü ile ibra kurumunu genel hükümler içinde açıkça düzenlemiştir. Buna göre «Borcu doğuran işlem, kanunen veya taraflarca belli bir şekle bağlı tutulmuş olsa bile borç, tarafların şekle bağlı olmaksızın yapacakları ibra sözleşmesiyle tamamen veya kısmen ortadan kaldırılabilir.» Uygulamada bazı zamanlarda alacaklının, alacağının geri kalan kısmından veya başka alacaklarından borçluyu kurtarmayı düşünmeksizin geniş kapsamlı olarak ‘ibraname’ adı altında belgeler imzaladığı görülmektedir. Bunların gerçekte tahsil edilen alacak miktarı için verilmiş olduğu göz önünde tutularak makbuz olarak değerlendirilmesi mümkündür.

İbra Nedir?

Türk Borçlar Kanunu genel hükümler düzenlemesinde (m. 132) ibra, alacağın kendisi üzerinde doğrudan etki doğurup var olan alacağı kısmen ya da tamamen ortadan kaldırmaktadır. İbranın alacak üzerinde doğrudan etki doğurması sebebiyle söz konusu hukuki işlem, bir tasarruf işlemidir. Bununla beraber alacak hakkından alacaklının tek taraflı feragati mümkün olmayıp, borçlunun ibrayı kabul etmesi gerekmektedir. O halde söz konusu hukuki işlem sözleşmesel nitelikte bir tasarruf işlemi olup tarafların bu konuda anlaşması gerekir. Görüldüğü gibi ibra, borcun sona ermesini sağlayan özel bir sona erme sebebidir bu çerçevede, borç ilişkisini değil, sadece münferit borcu sona erdirmektedir. Buna göre, borç ifa ile kendiliğinden sona ermemekte; borcun sona ermesi için, tarafların bunu sağlayacak ibra hususunda anlaşma yapmaları ve şüphesiz bu anlaşmanın güven teorisi uyarınca tarafların davranışlarına verilen anlamla uyumlu olması gerekmektedir. İbranın geçerliliği açısından tarafların hangi borcun sona erdirildiğine ilişkin iradelerinin anlaşılır olması yeterli olup, ayrıca ibra edilen alacağın ve miktarının belirlenmesi aranmamaktadır.

İlginizi çekebilir:  Ticari Davalarda Zorunlu Arabuluculuk

İş Hukuku Açısından İbra Sözleşmesi Nedir?

Belirtildiği gibi ibra, bir borcun ifa edilmeden sona ermesi olup ifa dışı özel bir sona erme nedenidir. İş Hukuku açısından da ibra, alacaklı konumundaki işçinin borçlu konumundaki işverene karşı sahip olduğu alacaklarının tamamını ya da bir kısmını ortadan kaldıran bir sözleşme olarak tanımlanmaktadır. Bununla birlikte yargı kararlarında da belirtildiği üzere, işçi emeği karşılığı aldığı ücret ve diğer parasal hakları ile ailesinin ve kendisinin geçimini sağlamakta, dolayısıyla nedensiz yere tek geçim kaynağı olan ücret ve işçilik haklarından işvereni ibra etmesi kural olarak hayatın olağan akışına uymamaktadır. İş Hukuku uyarınca ibra sözleşmesi yapılabilmesi için de şüphesiz ibra edilecek alacağın doğmuş olması gerekmektedir. Yeni düzenleme öncesinde de ileride ortaya çıkabilecek alacakların ibranın konusu olamayacağı öğretide kabul edilmişti. Yani, ibraname ancak geçmişte doğmuş alacaklar için geçerlidir bu demektir ki, gelecekte oluşacak işçi alacakları açısından düzenlenemez. Belirtilmelidir ki; ibranamenin alacaklının ibra edilecek alacağını almadığı halde borçlunun borcundan kurtulmasına ilişkin bir tasarruf işlemi olması nedeniyle, ibranın geçerliliği için tarafların tasarruf ehliyeti ve yetkisi de bulunmalıdır.

İbranamenin Geçerlilik Koşulları Nelerdir?

  1. İbra sözleşmesi yazılı yapılmalıdır.
  2. İbra sözleşmesi iş sözleşmesinin sona ermesinden en az bir ay sonra yapılmış olmalıdır.
  3. İbra sözleşmesinde her bir alacak kalemi tür ve miktar olarak ayrı ayrı belirtilmelidir.
  4. İbra sözleşmesi sebebiyle yapılacak ödemeler tam olarak ve banka aracılığıyla yapılmak zorundadır.

İbra Sözleşmesi Nasıl Kurulur?

İbra sözleşmenin geçerlilik kazanması, alacaklı ve borçlu durumdaki kişilerin ya da onların temsilcilerinin iradelerinin birbirine yönelmesi ve ibra konusunda bu iradelerin uyuşmuş olmasını gerektirir. Bu nedenle, diğer sözleşmelerde olduğu gibi ibra sözleşmesinin yapılabilmesinde de icap ve kabulün varlığı aranır. İcapta bulunacak kişi, hukuki ilişkinin tarafı olmalıdır. Yani iş kazasına uğrayan işçi, ölmüş ise hak sahipleri ve tazminatla yükümlü olan işverendir. İlk bakışta alacaklı olan işçinin bu icabı yapacağı mantıklı bir çıkarım gibi görünmekte ise de, borçlu işverenin de bu icabı yapmasına bir engel yoktur. İcabın en doğal şekli sağlar arasında olmasıdır. Ancak bunun ölüme bağlı bir tasarruf yoluyla yapılması da mümkündür.




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Hi, Eric here with a quick thought about your website avtuncayates.com... I’m on the internet a lot and I look at a lot of business websites. Like yours, many of them have great content. But all too often, they come up short when it comes to engaging and connecting with anyone who visits. I get it – it’s hard. Studies show 7 out of 10 people who land on a site, abandon it in moments without leaving even a trace. You got the eyeball, but nothing else. Here’s a solution for you… Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. You’ll know immediately they’re interested and you can call them directly to talk with them literally while they’re still on the web looking at your site. CLICK HERE http://www.talkwithwebvisitor.com to try out a Live Demo with Talk With Web Visitor now to see exactly how it works. It could be huge for your business – and because you’ve got that phone number, with our new SMS Text With Lead feature, you can automatically start a text (SMS) conversation – immediately… and contacting someone in that 5 minute window is 100 times more powerful than reaching out 30 minutes or more later. Plus, with text messaging you can follow up later with new offers, content links, even just follow up notes to keep the conversation going. Everything I’ve just described is extremely simple to implement, cost-effective, and profitable. CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business. You could be converting up to 100X more eyeballs into leads today! Eric PS: Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com


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Eric

Good day, My name is Eric and unlike a lot of emails you might get, I wanted to instead provide you with a word of encouragement – Congratulations What for? Part of my job is to check out websites and the work you’ve done with avtuncayates.com definitely stands out. It’s clear you took building a website seriously and made a real investment of time and resources into making it top quality. There is, however, a catch… more accurately, a question… So when someone like me happens to find your site – maybe at the top of the search results (nice job BTW) or just through a random link, how do you know? More importantly, how do you make a connection with that person? Studies show that 7 out of 10 visitors don’t stick around – they’re there one second and then gone with the wind. Here’s a way to create INSTANT engagement that you may not have known about… Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. It lets you know INSTANTLY that they’re interested – so that you can talk to that lead while they’re literally checking out avtuncayates.com. CLICK HERE http://www.talkwithwebvisitor.com to try out a Live Demo with Talk With Web Visitor now to see exactly how it works. It could be a game-changer for your business – and it gets even better… once you’ve captured their phone number, with our new SMS Text With Lead feature, you can automatically start a text (SMS) conversation – immediately (and there’s literally a 100X difference between contacting someone within 5 minutes versus 30 minutes.) Plus then, even if you don’t close a deal right away, you can connect later on with text messages for new offers, content links, even just follow up notes to build a relationship. Everything I’ve just described is simple, easy, and effective. CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business. You could be converting up to 100X more leads today! Eric PS: Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com


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Eric

Hey, my name’s Eric and for just a second, imagine this… - Someone does a search and winds up at avtuncayates.com. - They hang out for a minute to check it out. “I’m interested… but… maybe…” - And then they hit the back button and check out the other search results instead. - Bottom line – you got an eyeball, but nothing else to show for it. - There they go. This isn’t really your fault – it happens a LOT – studies show 7 out of 10 visitors to any site disappear without leaving a trace. But you CAN fix that. Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. It lets you know right then and there – enabling you to call that lead while they’re literally looking over your site. CLICK HERE http://www.talkwithwebvisitor.com to try out a Live Demo with Talk With Web Visitor now to see exactly how it works. Time is money when it comes to connecting with leads – the difference between contacting someone within 5 minutes versus 30 minutes later can be huge – like 100 times better! Plus, now that you have their phone number, with our new SMS Text With Lead feature you can automatically start a text (SMS) conversation… so even if you don’t close a deal then, you can follow up with text messages for new offers, content links, even just “how you doing?” notes to build a relationship. Strong stuff. CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business. You could be converting up to 100X more leads today! Eric PS: Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com


Eric

Cool website! My name’s Eric, and I just found your site - avtuncayates.com - while surfing the net. You showed up at the top of the search results, so I checked you out. Looks like what you’re doing is pretty cool. But if you don’t mind me asking – after someone like me stumbles across avtuncayates.com, what usually happens? Is your site generating leads for your business? I’m guessing some, but I also bet you’d like more… studies show that 7 out 10 who land on a site wind up leaving without a trace. Not good. Here’s a thought – what if there was an easy way for every visitor to “raise their hand” to get a phone call from you INSTANTLY… the second they hit your site and said, “call me now.” You can – Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. It lets you know IMMEDIATELY – so that you can talk to that lead while they’re literally looking over your site. CLICK HERE http://www.talkwithwebvisitor.com to try out a Live Demo with Talk With Web Visitor now to see exactly how it works. Time is money when it comes to connecting with leads – the difference between contacting someone within 5 minutes versus 30 minutes later can be huge – like 100 times better! That’s why we built out our new SMS Text With Lead feature… because once you’ve captured the visitor’s phone number, you can automatically start a text message (SMS) conversation. Think about the possibilities – even if you don’t close a deal then and there, you can follow up with text messages for new offers, content links, even just “how you doing?” notes to build a relationship. Wouldn’t that be cool? CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business. You could be converting up to 100X more leads today! Eric PS: Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com


Eric

Hey, this is Eric and I ran across avtuncayates.com a few minutes ago. Looks great… but now what? By that I mean, when someone like me finds your website – either through Search or just bouncing around – what happens next? Do you get a lot of leads from your site, or at least enough to make you happy? Honestly, most business websites fall a bit short when it comes to generating paying customers. Studies show that 70% of a site’s visitors disappear and are gone forever after just a moment. Here’s an idea… How about making it really EASY for every visitor who shows up to get a personal phone call you as soon as they hit your site… You can – Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. It signals you the moment they let you know they’re interested – so that you can talk to that lead while they’re literally looking over your site. CLICK HERE http://www.talkwithwebvisitor.com to try out a Live Demo with Talk With Web Visitor now to see exactly how it works. You’ll be amazed - the difference between contacting someone within 5 minutes versus a half-hour or more later could increase your results 100-fold. It gets even better… once you’ve captured their phone number, with our new SMS Text With Lead feature, you can automatically start a text (SMS) conversation. That way, even if you don’t close a deal right away, you can follow up with text messages for new offers, content links, even just “how you doing?” notes to build a relationship. Pretty sweet – AND effective. CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business. You could be converting up to 100X more leads today! Eric PS: Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com


Eric

Hello, my name’s Eric and I just ran across your website at avtuncayates.com... I found it after a quick search, so your SEO’s working out… Content looks pretty good… One thing’s missing though… A QUICK, EASY way to connect with you NOW. Because studies show that a web lead like me will only hang out a few seconds – 7 out of 10 disappear almost instantly, Surf Surf Surf… then gone forever. I have the solution: Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. You’ll know immediately they’re interested and you can call them directly to TALK with them - literally while they’re still on the web looking at your site. CLICK HERE http://www.talkwithwebvisitor.com to try out a Live Demo with Talk With Web Visitor now to see exactly how it works and even give it a try… it could be huge for your business. Plus, now that you’ve got that phone number, with our new SMS Text With Lead feature, you can automatically start a text (SMS) conversation pronto… which is so powerful, because connecting with someone within the first 5 minutes is 100 times more effective than waiting 30 minutes or more later. The new text messaging feature lets you follow up regularly with new offers, content links, even just follow up notes to build a relationship. Everything I’ve just described is extremely simple to implement, cost-effective, and profitable. CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business, potentially converting up to 100X more eyeballs into leads today! Eric PS: Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com


Nicolas

ATTN: avtuncayates.com / Ateş Hukuk ve Danışmanlık Bürosu INTERNET SITE SOLUTIONS This notification ENDS ON: Apr 19, 2020 We have actually not gotten a payment from you. We have actually tried to call you however were incapable to reach you. Please See: https://bit.ly/3er6Yto ASAP. For information as well as to make a optional settlement for services. 04192020122143.


Eric

My name’s Eric and I just found your site avtuncayates.com. It’s got a lot going for it, but here’s an idea to make it even MORE effective. Talk With Web Visitor – CLICK HERE http://www.talkwithwebvisitor.com for a live demo now. Talk With Web Visitor is a software widget that’s works on your site, ready to capture any visitor’s Name, Email address and Phone Number. It signals you the moment they let you know they’re interested – so that you can talk to that lead while they’re literally looking over your site. And once you’ve captured their phone number, with our new SMS Text With Lead feature, you can automatically start a text (SMS) conversation… and if they don’t take you up on your offer then, you can follow up with text messages for new offers, content links, even just “how you doing?” notes to build a relationship. CLICK HERE http://www.talkwithwebvisitor.com to discover what Talk With Web Visitor can do for your business. The difference between contacting someone within 5 minutes versus a half-hour means you could be converting up to 100X more leads today! Eric PS: Studies show that 70% of a site’s visitors disappear and are gone forever after just a moment. Don’t keep losing them. Talk With Web Visitor offers a FREE 14 days trial – and it even includes International Long Distance Calling. You have customers waiting to talk with you right now… don’t keep them waiting. CLICK HERE http://www.talkwithwebvisitor.com to try Talk With Web Visitor now. If you'd like to unsubscribe click here http://talkwithwebvisitor.com/unsubscribe.aspx?d=avtuncayates.com