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injunction is unjust is stated upon the dismissal of the action filed
by the bank regarding annulment of the letter of guarantee.
(11
th
Civil Chamber of High Court of Appeals, dated 04.02.1991
and numbered 1990/8459 – 1991/519)
“ThePlaintiff claims itsdamages resulting fromunjust preliminary
injunction. The party requesting preliminary injunction is
obliged to indemnify the damages caused to wrongfully enjoined
party resulting from unjust preliminary injunction. Strict liability
principles shall be executed for damages resulting from unjust
preliminary injunction. A final decision for the main lawsuit
is not required to accept the preliminary injunction as unjust.
Accepting the file as non filed is also sufficient for accepting the
preliminary injunction as unjust.”
(7
th
Civil Chamber of High
Court of Appeals, dated 23.07.2008 and numbered 2008/1996
– 2008/3247)
“In order to be obliged to indemnify the damages resulting from
unjust preliminary injunction, the omission of the party requesting
the preliminary injunction is not required. The fact that the
preliminary injunction is being unjust shall be sufficient without
seeking any wrongdoing.
(4
th
Civil Chamber of High Court
of Appeals, dated 27.02.1975 and numbered 1973/13954 –
1975/2496)
Third condition for the action to recover for damages resulting from
unjust preliminary injunction is the fact that the enjoined party or the
third parties shall incur some damages. The damage shall be calculated
to cover the period in between the date of preliminary injunction and its
rescission.
Another condition for action for damages resulting from unjust
preliminary injunction is the cause and effect connection between the
damages and the preliminary injunction.
The indemnification obligation of the party is based on the principles
of strict liability. In other words, the omission, negligence or intention of
the requesting party is not required. Even if the requesting party is of the
opinion that the request is just and acts with a good faith, he or she may
be still obliged to indemnify the other party.