Debtor default
Articles 117-126 of the Turkish Code of Obligations No. 6098. The debtor's default, which is regulated among its articles, constitutes a special type of performance impediment. The law firstly regulated the general situation of the debtor's default, that is, the consequences that will be applied to all contracts, and then included provisions regarding the consequences of default in monetary debts and contracts that impose mutual debts. In our review topic, we will make explanations about the general results and then the specific results by following this order.
The usual way to end a debt is to fulfill the debt completely and as expected. This situation is defined by the general concept of proper performance of the debt. Default occurs when the time to pay the debt, which is one of the elements of performance, is exceeded. The literal meaning of default, a concept of Arabic origin; It is stated as "stubbornness, resistance, defiance". In legal language, default means "delay". Although debtor default is not defined in the Code of Obligations, as stated in a decision of the General Assembly of the Supreme Court of Appeals dated 2010, B.K. 117 ff. Only the conditions and results are regulated in the articles. According to the Supreme Court of Appeals, the debtor's default is the failure to fulfill a debt that can be performed on time by the debtor, even though there is no legal obstacle.
The Turkish Code of Obligations includes liability for compensation in cases where the debt is not fulfilled properly. However, special regulations have been introduced in terms of default. In this respect, it should be said that default is a special case of not performing the debt properly. The creditor is not obliged to accept a debt that has not been properly performed, except in cases where there is an obligation to accept. Therefore, in case of rejection of bad performance, the performance is considered delayed and, with the presence of other conditions, the provisions of debtor default can be applied. If the creditor accepts defective or poor performance, this time he can resort to warranty for the defect or compensation for not performing the debt properly. If the debtor has not performed on time, that is, delayed the performance, the creditor is obliged to accept the performance. In contracts that impose mutual obligations, although the creditor is given the right to withdraw from the contract in case of default, it is subject to certain conditions. This issue will be examined further below.
In our explanations above, we stated that default would only come to the fore if the debt is not fulfilled on time. However, it should not be forgotten that simply not fulfilling the debt on time is not sufficient for the occurrence of default. The debtor is deemed to be in default with the presence of other conditions, the details of which will be explained below. Here, we find it useful to explain one more point in order to avoid conceptual confusion. Namely; One of the conditions for debtor default is the possibility of performance. In this respect, the difference between default and impossibility of performance must be determined. If there is no possibility of fulfilling the debt, there can no longer be a default. In such a case, the provisions regarding the impossibility of performance must be evaluated.
DEBTOR DEFAULT CONDITIONS
According to Article 117 of the Code of Obligations; The debtor of an overdue debt goes into default with the notice of the creditor. In the text of the law, it is seen that the existence of two conditions is required in terms of debtor default: acceleration and warning. However, the presence of these two conditions alone is not sufficient for the debtor to default. In addition, as we mentioned above, it should first be checked whether there is a possibility of performance. If the possibility of performance is eliminated, the debtor cannot be in default even in the presence of other conditions. Another condition for default is the creditor's readiness to perform. Finally, the debtor must not have put forward a defense that authorizes him to avoid performance. Since we will examine all of these conditions under separate headings below, we will only list them here. So, the conditions of debtor default can be considered as follows:
1-The creditor must be ready to accept the performance.
2-The debt must be due.
3-The debt must be a fulfillable debt.
4-The debtor must not have put forward a defense.
5-The creditor must have warned the debtor. (There are exceptions to the notice requirement.)
Finally, in the decision numbered 2016/168 K. of the General Assembly of the Supreme Court of Appeals, these conditions were listed as above. According to the relevant decision:
Broadly speaking, debtor default (debtor's resistance) means the debtor's breach of contract = failure to fulfill his debt. In this case, the debtor does not fulfill his debt even though the agreed time for performance has come and he has been warned.
The regulation regarding the default of the debtor is included in Articles 101-108 of the Code of Obligations. However, UK. As in Article 358/1, some other laws also contain provisions regarding debtor default due to the nature of the debt relationship.
Generally, the first condition sought in debtor default is the possibility of performance of the obligation. If the performance of the obligation is objectively impossible, debtor default cannot be mentioned. Another condition sought in debtor default is that the debt is due. Default cannot be mentioned before the debt becomes claimable. Because urgency refers to the creditor's authority to demand and sue the debtor's performance. According to Article 101/1 of the Code of Obligations, "The debtor of an overdue debt becomes delinquent upon the notice of the creditor." It is said.
According to the article, due date is not sufficient for default, and as a rule, a warning from the creditor is also required. The notice is the creditor's conveyance of his will to the debtor. Whether the debtor is at fault or perfect, if the above mentioned situations occur, default occurs. In other words, the debtor's fault is not a requirement for default.
1- READINESS OF THE CREDITOR TO ACCEPT PERFORMANCE
In order for the debtor's default to occur, the creditor must be ready to accept performance. If the creditor is not ready to accept the performance, this time the competition between creditor and debtor defaults will come to the fore, which is not legally possible. This view is dominant in the doctrine and is considered one of the conditions of default. We also agree with this view. "One of the conditions required for debtor default to occur is that the creditor is ready to accept performance." (Eren p.1046)
2- CONDITION OF ACCURACY IN CASE OF DEFAULT OF THE DEBTOR
We have stated in many places above that default means delay. In order to talk about a delay, naturally the time for performance must have come. The word "acceleration" refers to the debt becoming claimable. Article 117 of the Turkish Code of Obligations states that "the debtor of an overdue debt shall be in default upon the notice of the creditor." He clearly regulated the condition of due date by saying:
As stated in a decision of the Supreme Court IBGK dated 2019; In order to talk about debtor default, the debt must first be due. It will not be possible to talk about default on a debt that has not yet become due. Because the debt that is not yet due cannot be claimed or sued by the creditor. In other words, no obligation to perform will arise for a debt that is not due.
If the debt becoming due requires the creditor to do some preparatory work in advance, the debt will not become due unless the creditor fulfills these actions. (YİBGK 2019/8) In order for the debt to become due, a valid debt must exist. There are authors who state that debts that are considered legally invalid are not due. In fact, there is no consensus on this issue. According to the opinion we also agree with, the defenses that the debtor may put forward have nothing to do with acceleration.
3- DEF IN DEBTOR DEFAULT - DEF FOR NON-PAYMENT
According to Article 97 of the Turkish Code of Obligations; "The party requesting the performance of a contract that imposes mutual obligations must have performed or proposed to perform its own debt, unless it has the right to perform it later according to the terms and characteristics of the contract."
The conditions for the defense of non-payment are determined by the above-mentioned article of law. Accordingly, if these conditions are present, the debtor will be saved from default.
In addition, if the debtor puts forward other defenses, default will not occur. For example, the debtor of a time-barred debt can avoid default by asserting this defense. The mere existence of a deed does not prevent default. The burial must be put forward. According to the view in the doctrine that we also agree with; "The fact that the debtor has a right of defense that he can put forward in case the creditor demands performance does not prevent the debtor's default from occurring." (von Tuhr, ibid., p. 605; Oğuzman, Öz, ibid., p. 297; Eren, ibid., p. 1049; Barlas, ibid., p. 26,)
4- IMPOSSIBILITY OF PERFORMANCE AND DEFAULT
We have stated in many places that the existence of the possibility of performance is required in order to talk about debtor default. If the performance has become impossible, the default provisions cannot be applied since the debtor cannot be expected to fulfill his debt. In such a case, the creditor has no choice but to apply for the impossibility provisions. Finally, according to the opinion we agree with; "If the performance of the act is possible, default occurs; otherwise, a situation of impossibility arises, and default and impossibility are two separate institutions that cannot coexist." (Barlas, p. 16.)
5- NOTICE CONDITION IN DEFAULT
One of the most important conditions for default is a warning. This situation is clearly stated in Article 117 of the Turkish Code of Obligations. The second paragraph of the article includes situations where no warning is required.
In article 117/1 of the Turkish Code of Obligations; "The debtor of an overdue debt goes into default with the notice of the creditor." It is accepted that default will occur as a rule, not from the date of due date, but from the notice of the creditor (Eren, Fikret: Law of Obligations General Provisions, Ankara. 2017 p. 1121).
Warning is the usual method of using the power to demand performance provided by the right to receivable. With a warning, the creditor informs the debtor that he wants the debt to be fulfilled and invites him to comply. The warning protects the debtor from negative consequences that may arise in cases where the time of performance is uncertain or unknown to the debtor. The debtor understands that delay in performance from the moment of warning will constitute a breach of the obligation and may have serious consequences. The reason why the debtor is protected here is not because he is in a weak position against the creditor, but because he has the right to know the legal situation.
The default of the debtor is only possible with the warning of the creditor. The legislature has not imposed any conditions regarding the form of the warning. In terms of traders, TCC 18/b.3. article should be taken into consideration. Again, a form is not required to prove the warning. It can be proven with all kinds of evidence. The warning takes effect from the date it reaches the debtor. Filing a lawsuit or enforcement proceedings against the debtor is considered a warning.
Sending an invoice to the debtor cannot be considered as a warning. In a decision of the Supreme Court on the subject, it is stated that "In this case, it is undisputed that the defendant went into default with the enforcement proceedings. When considered together with the principle in Article 195 of the Execution and Bankruptcy Law regarding the writing of the accrued interest on the table, the beginning of the interest is not the invoice date, but the date of the enforcement proceedings. For this reason, the court's decision based on the expert report containing the opinion and calculation that the default has occurred as of the invoice date is not appropriate." It is stated as follows. (YHGK 2016/1064 K.)
In cases where the debtor is put in default due to a lawsuit or enforcement proceeding, interest is charged from the date the lawsuit is filed or the prosecution is initiated. As a matter of fact, in the decision numbered 2018/2627 K. of the 15th Civil Chamber of the Supreme Court of Appeals, "Since there was no default warning made before the lawsuit and the exact maturity was not determined between the parties, interest must be started on the receivable to be accepted from the date of the lawsuit and correction." Expressions were used.
Again, in the decision numbered 2003/136 K. of the General Assembly of the Supreme Court of Appeals, the following explanations are included regarding the requirement of due date and warning in case of default:
"It is worth noting that, as in all debts, the basic condition of default in terms of monetary debts is that the debt has become due. According to Article 74 of the Code of Obligations, "unless the time of performance is determined neither by the contract nor by the nature of the debt relationship, the debt is fulfilled immediately and its performance can be requested immediately. The rule in terms of time of performance within the framework of the said article is that the debt is not subject to any maturity date and is due from the moment of its birth. If a maturity is stipulated for the performance of the debt, as a rule, it will become due upon the arrival of this maturity. Although the debt becoming due is the main condition for the debtor's default, it alone is not sufficient to accept the existence of default. In paragraph 1 of Article 101 of the Code of Obligations, "the debtor of an overdue debt becomes default upon the notice of the creditor." It is said. Therefore, it must be accepted that, as a rule, a warning is required for the debtor's default. In general, the normal way for a warning to occur is for the creditor to notify the debtor of his will, which consists solely of a request for payment. The notice addressed to the debtor by the creditor must clearly and unambiguously state that the debtor requests payment, leaving no room for hesitation. In practice, it is accepted that default will occur in cases where a lawsuit is filed or enforcement proceedings are carried out as transactions that constitute a warning (Dr. Nami Barlas, General Results Arranged in Terms of Default of the Debtor in the Performance of Monetary Debts Ist. 1992 P. 27 Vd). "
CASES WHERE NO WARNING IS REQUIRED
117. In the second paragraph of the article, the situations that do not require a warning are listed one by one. Additionally, there is another situation that is not listed in the law. Accordingly;
In the Supreme Court of Appeals İBGK's decision numbered 2019/8 K., the situations for which a warning is not required are listed as follows:
Despite the protective function of the warning to the debtor, the legislator did not find a warning necessary for the occurrence of default in the cases specified in Article 117/2 of the TCO.
In the first case where no warning is required for default, if the date on which the debt will be fulfilled is determined by agreement of the parties, if payment is not made on that day, the debtor will be deemed to be in default. If the period in which the debt will be performed is determined by the parties, the debtor who is late in the performance upon the expiration of this period becomes a defaulter. However, in cases where the time or duration of performance is regulated by law, the creditor must give notice in order for the debtor to be considered to be in default. The day of performance must be determined as a clear and specific day, otherwise a warning for default will be deemed mandatory (Oğuzum M. Kemal / Öz, Turgut: Law of Obligations General Provisions C, I. İstanbul. 2017. p. 462).
Another situation where a warning is not required for default is; If one of the parties in the contract is given the authority to determine the performance date, the debtor will be deemed to be in default if the performance is not fulfilled on the notified performance date. Notifying the date on which the debt will be fulfilled is a legal transaction whose validity is not formalized. Because this declaration of will will result in the debtor going into default.
For compensation arising from tort, the debtor will be deemed to be in default on the date of the tort, without the need for a warning. If a warning requirement is required for the debtor's default, it will result in favor of the perpetrator of the tort, in the form of interest not accruing between the event date and the default date (warning date). In order to prevent this, the date on which the act took place was deemed as the date of default without the need for a warning in compensation arising from tortious acts (Oğuzman/Öz. p. 465)
In case of unjust enrichment, the debtor is deemed to be in default on the date of enrichment. However, if the enrichment is in good faith, notification of default is required.
However, if the debtor has clearly notified the creditor that he will not fulfill the debt before the debt becomes due, then there is no need for a warning. The debtor becomes in default with this declaration. Because, with this declaration, the debtor has already clearly declared his will not to honor the debt, so the warning will no longer be of any use (Eren, p. 1125, ).
GENERAL CONSEQUENCES OF DEBTOR DEFAULT
We have stated that there are different provisions regarding the general consequences of default and the consequences of default in contracts that impose monetary debts and mutual debt. Under this heading, explanations regarding the general consequences of default will be included.
The general consequences of default are regulated in Articles 118 and 119 of the TCO. According to Article 118; Unless the debtor in default proves that he has no fault in defaulting, he is obliged to compensate the damage suffered by the creditor due to the late performance of the debt. As clearly stated in the article, the first consequence of default is delay compensation. A fault condition is included in order for this compensation to be awarded. Although the defect does not affect the occurrence of default, it prevents some of its consequences from occurring. Because fault is required in order to claim the compensations stated in TBK 118 and TBK 125/2. Fault is a condition required only for some of the consequences of default mentioned above.
119. The article regulates the principles of liability for unexpected situations. According to the article; The debtor in default is responsible for the damage that may arise due to unexpected circumstances. The second paragraph of the same article is; "The debtor can escape from this liability by proving that he had no fault in default, or that even if he had fulfilled his debt on time, the unexpected event would have damaged the thing subject to performance." It is arranged as follows. Here too, default and fault are associated.
Based on the above explanations, we will explain the general consequences of default under two headings: delay compensation and liability for unexpected events.
a- EXACT PERFORMANCE AND DELAY COMPENSATION
The first of the general consequences of default is delay compensation. Delay compensation is awarded to compensate the debtor for the damage caused by late performance. Delay compensation represents a different concept than default interest. Namely; Default interest is an accessory receivable and ends with the termination of the principal debt. For this reason, it is not possible to claim default interest after the performance is accepted without reservation. However, delay compensation can be claimed with performance, after performance, or even in case of performance without reservation.
In order to claim delay compensation, the creditor must be damaged. This damage is a type of positive damage. When calculating positive damage, the difference between the situation in which the creditor's assets would have been if the debt had been fulfilled and the situation in which they were due to delayed performance is taken into account. When calculating delay damage, the period after default should be taken into account.
Delay compensation is in BK's 112 ff. It is a regulated type of compensation. Therefore, it is subject to general provisions. Therefore, we can consider another condition of delay compensation as fault, as we mentioned above. If the debtor proves that he was at fault for defaulting, he will be exempt from paying delay compensation.
Delay compensation can only be requested within the period during which exact performance can be requested. Therefore, delay compensation cannot be claimed in cases where compensation is requested by giving up the exact performance. In addition, this compensation cannot be requested in case of application to the impossibility provisions. If the debt becomes statute-barred, delay compensation cannot be claimed.
Finally, it should be noted that the parties can make a non-liability agreement regarding the compensation of delay damages.
Since exact performance is not a result of default, no further explanation is made here. In any case, the creditor has the right to demand the same performance.
b- LIABILITY FOR UNEXPECTED EVENT
According to Article 119 of the Turkish Code of Obligations; The debtor in default is responsible for the damage that may arise due to unexpected circumstances. The second paragraph of the same article is; "The debtor can avoid this liability by proving that he had no fault in default, or that even if he had fulfilled his debt on time, the unexpected event would have damaged the thing subject to performance." It is arranged as follows.
So, it is possible to say that liability for unexpected circumstances is a fault liability. As a rule, if performance becomes impossible due to a reason that occurs without the fault of the debtor, the debtor is released from his debt (Article 117 of the Code of Obligations). However, if perfect impossibility occurs after default, this rule does not apply and the debtor is now held responsible even for the accident.
If the debtor is not at fault for defaulting, he cannot be held responsible for the unexpected situation. However, the defaulting debtor will now be held responsible for the unexpected situation. In this case, in order to be free from liability, the debtor must prove that even if he had fulfilled his debt on time, in accordance with Article 119/2, the unexpected event would have damaged the thing subject to performance.
In an exemplary Supreme Court decision, the following provision was made:
"According to the construction contract signed between the parties in exchange for land share, the delivery time of the construction is 17.10.2007, and the decision of the Antalya 2nd Administrative Court regarding the cancellation of the zoning plan was given on 05.04.2007. Upon the notification of the said decision to Alanya Municipality, it is not possible for the municipality to issue a building permit for the construction on the parcel in question. Since the decision regarding the cancellation of the zoning plan is related to public order. Since the contractor cannot be expected to continue the construction contrary to public order, it cannot be said that he is in default.
For this reason, the local court's decision to resist was justified on the grounds that the zoning plan for the area where the construction was located was canceled before the contractor's time to complete the construction was over, and the municipality had to implement the decision of the Administrative Court, and that the defendant was not at fault for not being able to finish the construction on time, since the zoning plan for the area where the construction was located was cancelled. YHGK 2020/723 K.
CONSEQUENCES OF DEFAULT IN MONEY DEBTS - DEFAULT INTEREST
Until this section, we have included explanations regarding the general consequences of default. This section and its continuation contain explanations regarding the special consequences of default.
The first of the special consequences is regulated in Article 120 of the Turkish Code of Obligations. The article includes the provision that the debtor who defaults on his monetary debts will pay default interest as delay compensation. Default interest is a special type of interest. We have included explanations above under the headings of delay interest and liability for unexpected circumstances that these compensations are based on fault. There is no fault requirement for default interest. Again, unlike the late payment penalty, the creditor of the money debt does not need to prove that he has been harmed.
Default interest depends on the demand condition. In cases where the creditor does not demand interest, the judge cannot automatically award interest. It is possible to claim default interest after performance, but if the creditor has accepted the performance without reservation, he will no longer be able to claim interest.
Default Interest Rate
In cases where the default interest is not agreed upon by the parties, the legal interest rate is applied. If the annual default interest rate to be applied is not agreed in the contract, it is determined according to the legislative provisions in force on the date the interest debt arises. (TBK 120/1) Law No. 3095 on Legal Interest and Default Interest should be understood from the legislative provisions that the legislator means here. According to the relevant law, the default interest rate in ordinary transactions is determined as 9%.
The parties are free to decide on the default interest rate. However, the law has placed a limitation on this freedom. According to TBK 120/2; The annual default interest rate to be determined by the contract cannot exceed one hundred percent more than the annual interest rate determined in accordance with the first paragraph. Accordingly, the maximum interest rate that the parties can agree on is 18%. "The interest decided at the general assemblies of the cooperative is the default interest regulated in Article 120 of the Turkish Code of Obligations. Since there is no commercial relationship between the cooperative and its member, default interest must be applied at the legal rate. Pursuant to Article 2/1 of the Law No. 3095 on Legal Interest and Default Interest, the debtor who defaults in the payment of a certain amount of money is according to the legal interest rate determined in Article 1 for the past days, unless otherwise agreed by contract. As can be understood from the clear statement of the article, the parties may decide to charge the default interest more than the legal interest rate. However, when determining the interest rate to be applied, the parties must take into account the limitation stipulated in Article 120/2 of the Turkish Code of Obligations No. 6098. The default interest rate accepted in the general assemblies of the cooperative cannot exceed 100% of the legal interest rate determined in accordance with the legislation in force at the time the interest debt arises, that is, Article 2/1 of the Law No. 3095 on Legal Interest and Default Interest. In this case, the said legal regulation in force on the date of the decision is evaluated in terms of the concrete event within the framework of these explanations, and when necessary, a report suitable for audit is obtained from the expert in terms of the default interest rate and amount that has been committed and will be processed, and a decision is made accordingly. "While it should have been given, it was not correct to make a judgment based on incomplete examination." Supreme Court 23rd HD. 2020/1980 K.
TBK 120/3. According to the article; "Although the contractual interest rate is determined, if the default interest is not determined in the contract and the annual contractual interest rate is higher than the interest rate specified in the first paragraph, the contractual interest rate shall be valid for the default interest rate."
The default interest rate in commercial transactions is determined as 9%. "If the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances on 31 December of the previous year is more than the amount explained above, default interest may be requested at this rate in commercial transactions, even if there is no contract. If the advance interest rate in question is five points or more different from the advance interest rate applied on 30 June of the previous year, this rate will be valid in the second half of the year." 3095 Law No. 2/2 Therefore, the interest rate applied in commercial transactions will be 18.5%.
"In cases where the amount of default interest is not determined in the contract, if the contractual interest amount is above the amount stipulated in the above paragraphs, the default interest cannot be less than the contractual interest amount." 3095 S.K.M.2/3
According to the Turkish Commercial Code, the commercial interest rate can be freely agreed upon between the parties. There is no upper limit in terms of commercial default interest. As a matter of fact, in the decision numbered 2019/10314 of the 3rd Civil Chamber of the Supreme Court of Appeals, there are regulations "In Article 8/1 of the Turkish Commercial Code No. 6102, "the interest rate can be determined freely in commercial affairs" and in Article 4/1, "Civil cases arising from matters related to the commercial enterprise of both parties are considered commercial cases." "It is understood that a judgment must be made according to the outcome, taking into account the decision, and it has been decided to reverse the judgment with this different reason explained, by accepting the plaintiff's attorney's request for correction of the decision." He stated as follows.
Default Interest on Interest, Revenues and Forgiveness
ARTICLE 121- The debtor who is in default in paying his interest or revenue debt or an amount of money donated is obliged to pay default interest, starting from the day enforcement proceedings are initiated or a lawsuit is filed.
Agreements made contrary to this will be subject to the penalty clause provisions. Default interest cannot be charged separately.
Compensation for Excessive Damage
According to Article 122 of the Turkish Code of Obligations; If the creditor suffers a loss exceeding the default interest, the debtor is obliged to compensate for this damage unless he proves that he has no fault. Here, the creditor who claims excessive (excessive) damage must prove this damage. The debtor can only be relieved of this responsibility by proving his faultlessness. An example Supreme Court decision is as follows:
"Since the liability for excess damage is based on fault liability, the debtor can only be freed from liability by proving his faultlessness in default. Although the plaintiff claimed his additional damage by selling his immovable properties, taking out loans from banks and being subject to enforcement proceedings due to the late payment of his receivables despite the default; the majority of the individuals or companies using bank loans are not the plaintiff company, but the damage is caused by using cats and selling immovable properties due to his inability to collect the receivables in question. The damage that is not covered by interest. Since its existence is accepted as a presumption, the contrary cannot be claimed and proven by the defendant debtor, first of all, after the default dates and inflation data on the collection dates are determined, the amount that can be reached on the collection dates if the receivables decided to be collected are deposited into the basket consisting of investment instruments as of the default dates, will be calculated from this amount, the amount of the accepted receivables in the cases will be collected together with the default interest, and an auditable and reasoned additional report should be taken for the damage and amount not covered by interest, and a decision should be made. "The acceptance of the case was not correct." Y15HD. 2018/4739 K.
DEFAULT IN CONTRACTS INCURING DEBT ON BOTH PARTIES
Another of the special consequences of default is encountered in contracts that impose burdens on both parties. For this reason, this concept needs to be explained first. In contracts that impose debt on both parties, both parties to the contract become indebted. One of the parties to the contract enters into a performance obligation based on the other party's commitment to perform; Therefore, it aims to replace its own action with the other party's action. (Velidedeoğlu-Özdemir, p. 244; Yavuz, p. 771.) In contracts that impose debt on both parties, the parties are both creditors and debtors. These types of contracts are the types of contracts we encounter most frequently in our daily lives. Sales contract, work contract,rental contract can be given as examples of contracts that impose debt on both parties.
According to Article 123 of the Turkish Code of Obligations No. 6098, in contracts that impose mutual debts, if one of the parties is in default, the other may give an appropriate period for the performance of the debt or request the judge to grant an appropriate period. Article 124 of the Law, which regulates situations that do not require a period of time, states that if it is understood that granting a period of time will be ineffective due to the debtor's situation or attitude, the creditor can be granted a period without the need for a period of time, as regulated in Article 125 of the Law; It has been regulated that one can exercise one of the optional rights to demand the performance of the debt and compensation due to delay, to waive the right to perform the debt and demand compensation for delay, to demand compensation for the damage arising from non-performance of the debt, and to withdraw from the contract. If the right to withdraw from the contract is used, the parties will be mutually relieved of the obligation to perform.
DEFAULT CONDITIONS IN CONTRACTS IMPOSING MUTUAL DEBT - DURATION
All of the general conditions we have listed above are also valid for default in contracts that impose mutual debt on both parties. However, the legislator also included a special condition. This special condition is the time condition. Accordingly, in contracts that impose mutual debts, if one of the parties is in default, the other may give an appropriate period for the performance of the debt or request the judge to grant an appropriate period. If the debt is not fulfilled within the given period, the creditor can use his rights listed in TBK 125.
While notice is a general condition for default in all debt relations, regardless of whether the contract imposes a debt on both parties, granting time is a special condition for the default of the debtor only in contracts that impose a debt on both parties. (Kılıçoğlu, p. 691)
For the period to be granted, general conditions must be met. In other words, time must be given after the debtor defaults. Therefore, within the period, the debtor is already in default and must pay delay compensation. However, this condition can also be met in this way by giving time together with a default notice.
The period given to the debtor must be appropriate. Compliance audit is carried out according to the rule of honesty. If the creditor wishes, he can also ask the judge to grant time. A Supreme Court decision on the subject stated as follows:
"..Giving an appropriate deadline to the debtor who is in default means that the creditor informs how long he consents to accept performance despite the default. There is no doubt that the law wanted to protect the debtor from the consequences of default by assigning an appropriate deadline. In order to determine whether the given period is appropriate or not, it is necessary to check whether the rules of good faith required by the nature of the event are complied with." YHGK 2016/168 K.
CASES WHICH DOES NOT NEED TO GIVE A TIME
According to Article 124 of the Turkish Code of Obligations; There is no need to grant time in the following cases:
1. If it is understood from the debtor's current situation or attitude that granting time would be ineffective.
2. If the performance of the debt becomes useless for the creditor as a result of the debtor's default.
3. If it is understood from the contract that the performance of the obligation will not be accepted at a certain time or within a certain period of time.
It should be noted that, while situations that do not require a period of time make the requirement to issue a warning unnecessary, situations that do not require a warning will not prevent the granting of a period of time. Namely, if the maturity of the debt is clear and on a certain day, there is no need to give a warning, but if this agreed upon maturity is not a definite maturity, it is mandatory to give the debtor an appropriate period of time in contracts that impose a debt on both parties. (Kılıçoğlu, ibid. p. 691.)
The conditions listed above should be evaluated separately for each concrete case.
Ineffectiveness or futility requires subjective research. Again, there is no duration requirement for fixed-term contracts.
OPTIONAL RIGHTS OF THE CREDITOR DUE TO DEFAULT IN CONTRACTS INCURING DEBT ON BOTH PARTIES
In cases where the debt is not fulfilled despite a period of time being given or in cases where there is no need to grant a period of time, the creditor will have some optional rights. These rights are regulated as three separate optional rights in Article 125 of the Turkish Code of Obligations. However, it should not be forgotten that all of the rights we have mentioned among the general consequences of default can be exercised by the creditor. In other words, the creditor has the opportunity to apply for general consequences such as exact performance and delay compensation, default interest, excess damage, liability for unexpected events. Apart from these, we will also explain some special regulations below. The creditor must notify the debtor that he will exercise these rights. Although this is the view adopted by the Supreme Court, the decision shared below supports our explanations.
"Article 106 of the Code of Obligations regulates how the creditor can exercise his rights in case of non-fulfillment of the debt (delay in performance) in contracts involving mutual obligations.
The creditor must give time to the debtor who refuses to fulfill the debt (BK. 106/1) in order to use his optional right stipulated in Article 106/II. However, if one of the situations written in Article 107 is present (1- If it is understood that this measure will be ineffective from the debtor's state and situation; 2- If the performance of the debt has become useless for the creditor as a result of the debtor's default-resistance; 3- According to the provisions of the contract, if the debt must be fulfilled at a determined and determined time or within a certain period), there is no need to determine a time limit). Since it is agreed in the contract that the defendant contractor will fulfill its debt within 36 months, Article 106/1 of the UK. According to the article, there is no need to determine a time limit. There is no difference of opinion on the issues explained so far, the problem arises from now on.
BK's 106/II. In this article, the creditor is given three choice rights in case of refusal to fulfill the debt (whether or not an advance is given according to the first paragraph):
1- Always fulfill the delayed work and request delay compensation;
2- Claiming positive damages by abandoning the fulfillment of the contract;
3- To withdraw from the contract (termination) and claim negative damages.
When the right to choose came to the agenda, it was necessary to seek an answer to the following question: The employer, the creditor, the resisting contractor, the defendant, waited for a suitable period of time and the BK 106/II. Is he obliged to declare that he has exercised his optional right in the article?
According to the persistent opinion of the Fifteenth Civil Chamber, the plaintiff creditor must notify the debtor that he has exercised his right of choice after waiting for an appropriate period of time; 106/1 of this notification. It has nothing to do with the premise in the article." YGHK 1991/467K. The creditor can use only one of the optional rights we will list below.
1- RIGHT TO ASK FOR EXACT PERFORMANCE AND DELAY COMPENSATION
Exact performance and delay compensation, which are the general consequences of default, are also applicable in case of default in contracts that impose mutual obligations. The creditor has the right and the authority to demand performance and compensation for the damages suffered thereby. The creditor does not need to give the creditor time to exercise these rights. In fact, using this right after this period will be meaningless. However, there is no legal obstacle to exercising this right after the period.
As a rule, the creditor who assigns an additional period to the debtor and wishes to request the same performance at the end of the period is not obliged to inform the debtor that he will not use one of the other two optional rights. (Tekinay- Akman- Burcuoğlu- Altop, ibid., p. 961.)
As we stated above, the existence of fault is required for the request for exact performance and delay compensation, which are the general consequences of default. If the debtor proves that he was blameless for default, he will be released from liability. The presumption is that the debtor is at fault.
Finally, there is one more thing that needs to be mentioned. In construction contracts in return for flats, if the creditor intends to demand exact performance and delay compensation, he cannot be forced to exercise this right immediately. The limitation period starts after construction and delivery. A precedent on the subject is stated as follows in a Supreme Court decision.
"In the established jurisprudence and practices of our Chamber, also adopted by the General Assembly of the Supreme Court of Appeals, it is accepted that in the case of delay-related penalty clauses and delay compensation claims based on construction contracts in return for land share, the limitation period will start from the date of completion and delivery of the construction, as the land owners cannot be forced to file a lawsuit immediately upon the default of the contractor and can claim damages arising from the delay by waiting for the performance. (15th Civil Chamber of the Supreme Court of Appeals) 12.11.2007 day 2007/4025 Principles, 2007/7085 Decision, 14.10.2010 day 2010/3391 Principles, 2010/5310 Decision are similar to the decisions of the General Assembly of the Supreme Court of Appeals dated 04.02.200 day 2009/15-13 Principles, 2009/53 Decision. jurisprudence ).
However, it is possible to apply the above-mentioned principle and rule regarding the date on which the delay compensation penalty receivable becomes due (requestable) if there is no lawsuit or enforcement proceeding for the collection of the delay compensation-penalty despite the default. After the default and before delivery, if the land owner files a partial lawsuit or pursues enforcement proceedings for the delay compensation-penalty, the entire delay and compensation receivable that will occur until the date of the lawsuit-enforcement pursuit will be fully due on the date of the lawsuit-proceeding. will be due. "As accepted in the doctrine and the established jurisprudence of the Supreme Court, in the case of a partial lawsuit-proceeding, the statute of limitations will be interrupted for the receivable that is the subject of the lawsuit or pursuit, and will continue to run for the excess." Y15HD 2020/2512 K.
2- THE RIGHT TO REQUEST COMPENSATION FOR POSITIVE DAMAGES BY GIVING UP THE SAME PERFORMANCE
Another optional right granted to the creditor is the right to waive the same performance and claim positive damages. If the creditor wants to give up the same performance and compensate the positive damage, he must immediately notify the debtor that he will exercise this right. Otherwise, the debtor will be released from liability and the creditor will lose his rights.
Here too, the debtor has the opportunity to escape liability by proving that he is perfect. As a matter of fact, in the compensation of positive damages arising from the default of the debtor, the provision regarding the compensation of positive damages arising from culpable impossibility regulated in Article 112 of the TCO and its following applies.
Two theories have been put forward regarding the effect of the use of this right on the contract. According to the exchange theory, the creditor must also fulfill his own obligation. Difference theory points out the exact opposite. In other words, it means that the creditor is not obliged to fulfill his own obligation. It can be said that the Supreme Court has adopted the difference theory, as can be seen in its decision that we will share below. According to the relevant decision;
"The case is about a claim for receivables. In contracts that impose a debt on both parties, the creditor may optionally request from the defaulting debtor the damages suffered due to the same performance and delay, or the positive damage by refusing the same performance, or the negative damage by terminating the contract, from the defaulting debtor, within the framework of Article 125 of the Turkish Code of Obligations (formerly BK 106 et seq.). In this case, the plaintiff has the right to claim damages according to both the contract and Articles 106 of the Turkish Code of Obligations (former BK 106 et seq.). Therefore, the court should consider that the plaintiff may claim damages for loss of rent starting from the date of the end of the additional period until the date when the flat is actually delivered to the plaintiff, and a decision in accordance with the result should be given by the court with an incorrect evaluation. The reason is that, with the case at hand, the plaintiff has requested that his receivable be paid along with the advance interest, and although it is understood that legal interest has been ruled by the court, it is essential that the debts of the defendant company, which is a merchant, are also commercial in accordance with the provision of Article 19 of the new Turkish Commercial Code (Repealed Article 21 of the Turkish Commercial Code), and it is understood that contracts that are commercial business for only one of the parties are considered commercial business for the other party, unless there is a provision to the contrary in the law, and it should be accepted that the plaintiff may claim commercial interest. For this reason, although advance interest should be applied to the receivable judged by the court, the fact that legal interest has been awarded according to acceptance is against the procedure and law and requires reversal for the benefit of the plaintiff. Y15HD. 2017/306 K.
Supreme Court positive damage:
"Positive (positive) damage, in general terms, is the damage suffered due to non-fulfillment of the contract. The difference between the situation that the creditor's assets will reach as a result of the fulfillment of the debt and the situation it will show due to the non-fulfillment of the debt is described as positive damage. Here, the damage suffered due to the non-realization of the interest in the fulfillment of the debt is in question. Failure to fulfill the contract at all or properly deprives the creditor of the interest that he expects to be realized, and the debtor is held responsible for the compensation of the damage that has occurred." He defined it as: In addition, the creditor's right to delay compensation due to default is also counted as a positive damage item.
The following statements were included in another Supreme Court decision:
"POSITIVE DAMAGE: If the debtor had fulfilled the obligation properly and on time, the difference between the creditor's property would have been, the difference between this situation and the action situation is positive damage. In other words, positive damage is the damage arising from the failure to fulfill the contract at all or as required; it undoubtedly includes the deprivation of profit (Tandoğan. Turkish Liability Law, p. 426-427). In our case, the plaintiff administration is the defendant's violation of the contract. When he could not buy the goods at the price he agreed upon, he had to buy it from someone else and at a higher price. The difference between these two prices (the difference between the two tenders) is his positive loss. While the plaintiff administration would have paid 4,757 liras to the defendant for 18,750 kg of figs, it had to buy the same amount from the dry dealer for 7,875 liras. The positive damage consists of the difference between these two costs.
Positive damage occurs when the creditor waives performance and requests compensation for his damage; The contract does not disappear, but the creditor's right to demand compensation for positive damage is replaced by the creditor's right to demand performance. "It should not be ignored that the damage here is caused not by the termination of the contract but by the non-fulfillment of the debt."
The limitation period for receivables is 10 years. This period starts from the moment the right can be requested.
3- RIGHT TO BREAK OUT OF THE CONTRACT AND CLAIM COMPENSATION FOR NEGATIVE DAMAGES
TBK 125/2. According to the article; The creditor may also immediately notify that he has renounced the performance of the debt and the right to demand delay compensation, and may request compensation for the damage arising from non-performance of the debt, or may withdraw from the contract.
In accordance with the 3rd paragraph of Article 125 of the Turkish Code of Obligations, the creditor may request compensation from the debtor for the damage he suffered due to the invalidity of the contract. The damage that is requested to be eliminated by the provision of the article is called negative damage. Negative damage is the damage suffered by the creditor due to exercising his right to withdraw from the contract.
Negative damage; It is the loss suffered due to the breach of trust due to a contract believed to be complied with or fulfilled not being valid or fulfilled. Losses that the creditor would not have suffered if the contract had not been made are included in this item. Adverse damage includes actual damage and loss of profit. The following explanations regarding negative damage are included in the ongoing jurisprudence of the Supreme Court of Appeals:
"NEGATIVE DAMAGE: It is the damage suffered due to the breach of trust due to a contract that is believed to be complied with and fulfilled, not being valid and fulfilled. In other words, it is the damage that would not have been suffered if the contract had not been made. Negative damage occurs when the contract is not valid because the debtor acts contrary to the contract (Tandoğan, ibid., p. 427). This issue arose from the regulation in Article 108 of the Code of Obligations; here The creditor is entitled to compensation for the damage caused by the invalidity of the contract. Because after the contract is terminated and invalid, the damage to be claimed is negative damage.
It is suggested that the distinction between negative and positive damages in legal doctrine should be abandoned on the grounds that it causes injustice (Serozan, Contractden Dönme, p. 630 et al.). According to this view, the damage mentioned in Article 108 of the Code of Obligations "results directly from the breach of trust in the timely execution of the contract, in short, from the breach of contract." For this reason, in cases where Article 108 is in question, positive damage should be taken as basis. However, when this view is accepted, the distinction introduced in Article 106 of the Code of Obligations has no meaning. For this reason, we did not agree with the idea of abandoning the distinction between positive and negative damages, which has long been adopted by the Supreme Court.
It is accepted that the following will be included in the concept of negative damage (Tandoğan, ibid., p: 427-428):
a- Expenses related to the conclusion of the contract: Fees, postal expenses, notary fees, etc.
b- Expenses incurred for the fulfillment of the contract and acceptance of the consideration.
c- Damage suffered due to the fulfillment of the contract; It's like the thing sent gets lost on the way.
ç- Damage suffered due to missing another contract opportunity, believing the validity of the contract; The thing purchased with a contract that is considered invalid, for example, it could be bought from someone else for 100 liras at that time, but now it can be bought for 120 liras.
d- Damage suffered due to non-fulfillment of another contract.
e- Case expenses."
The debtor does not have to be at fault for the creditor to exercise his optional right to withdraw from the contract. However, a claim for compensation requires fault.
Withdrawal from the contract is effective retroactively. For this reason, the parties must return their actions. It is controversial whether the return of the acts is based on the provisions of unjust enrichment or the provisions of breach of contract. According to the Supreme Court, unjust enrichment provisions should be applied.
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