What is the punishment?

Articles 179-182 of the Turkish Code of Obligations. Its articles regulate the penalty condition but do not provide a definition. When the relevant articles are examined, the following definition can be made regarding the penal clause;

A penal clause is a performance that must be paid to the creditor in cases where the debt is not performed at all or as required, and the terms of which have been previously agreed upon by contract.

The penal clause has two advantages for the creditor. The first of these is that it is a means of pressure for the debtor to fulfill his contractual obligation, and the other is that it is a guarantee for the creditor.

The penalty condition can be agreed upon in any contract. There is no legal obstacle to adding a penalty clause to any contract. In addition, penal terms can be determined by making a separate contract.

ELEMENTS OF THE PENAL CONDITION

With the interpretation of the articles of law mentioned above, it is concluded that there are 3 elements of the penal clause.

1-The principal debt must be found.

The penalty clause is a tool of pressure for the creditor to be used against the debtor. This pressure is a pressure towards the performance of the main debt. Therefore, it is necessary to specify the first element of the penalty condition as the existence of a principal debt. The reason for the actual debt is not important in terms of the penal clause. The actual debt may be a contractual debt, or it may be a debt arising from tort or unjust enrichment. It is even possible to attach a statute-barred debt to a penalty condition.

2-The penal clause is an independent act.

Since the penalty clause functions as a commitment to the principal debt, it is separate and independent from the principal debt.

3-The penal clause is an accessory debt in addition to the main debt.

The fate of the accessory debt depends on the main debt. In other words, if the main debt is invalid, the accessory debt will also be invalid. In this sense, in order for the penal clause to be requested, the main debt must be valid and due. If the main debt disappears for any reason, the accessory debt will also disappear. Again, when an evaluation is made in terms of the place of performance, it will be concluded that the accessory debt will be fulfilled at the place of performance of the main debt. The dependency between the principal debt and the penalty condition ends at the time when the penalty condition becomes due. From the moment the penalty becomes due, it will become an independent debt.

TYPES OF PENAL CONDITIONS

The penalty condition can be arranged in three types.

1- Optional Penalty Condition

TBK 179/1. According to the article; If a penalty is determined for non-fulfillment or non-fulfillment of a contract, the creditor may request either the performance of the debt or the penalty, unless otherwise understood from the contract. As can be understood from these expressions of the law, in such cases, the creditor is given an optional right. In case of an optional penalty clause, the creditor may request either the penalty clause or the performance of the debt. Two debts cannot be requested at the same time.

2- Penalty Condition Added to the Performance

This version of the penalty clause is in accordance with Article 179/2 of the Turkish Code of Obligations. In the article "If the penalty is determined for the failure to perform the debt at the specified time or place, the creditor may request the performance of the penalty along with the main debt, unless he has expressly waived his right or accepted the performance without reservation." Edited with expressions. If the provisions in the law are present, the creditor may request the performance of both the penalty condition and the main debt.

3- Return Penalty Condition

Article 179/3 of the Code of Obligations. Article: "The debtor reserves the right to prove that he is authorized to terminate the contract by reneging or terminating by fulfilling the agreed penalty." He regulated the penalty condition for returning with his statements. Unlike the other two situations, the reversion penalty condition is for the benefit of the debtor. If the debtor wishes, he can be relieved of his obligation to fulfill the main debt by fulfilling the penal condition.

DISCOUNT IN CRIMINAL CONDITION

The judge may decide to reduce the penalty. The right of discretion finds application in ordinary matters. Penalties cannot be reduced in commercial transactions. Therefore, there is no reduction in the penalty requirement for merchants. The exception to this general rule is when the penalty clause causes the ruin of the merchant. If, depending on the characteristics of the concrete case, the penalty condition causes ruin for the merchant, the judge may decide to reduce the penalty condition.