The default of the debtor due to an act undertaken under the contract is regulated in Article 117 of the Turkish Code of Obligations. “The debtor of a due debt defaults with a warning of the creditor. If the day on which the debt is to be executed has been determined by making a duly notified party based on a right set together or held in a contract, by the date of this day; the debtor is in default on the date the verb is committed unfairly and the enrichment occurs without reason. However, in cases where enrichment reason is good, notification is required for default.”

1- Being Maturity of Debt: This condition means that the performance undertaken by the contract can be demanded by the creditor. In other words, the due date of the debtor’s performance must come or have passed.

2- Noticement of the Creditor: If the parties to the contract have determined the date of performance together, the debt becomes due without the need for a noticement.

3- Possibility of Execution of the Debt: If the performance of the undertaken performance becomes impossible for a reason that cannot be attributed to the late party, cannot be mentioned about the debtor’s default. For example, if a car that is promised to be delivered is set on fire by someone else at the time of delivery, it will not be possible to fulfill the debt.

4- The Creditor’s Readiness to Accept Performance: The creditor must accept the delayed performance by the debtor. Otherwise, the debtor’s default cannot be mentioned.

The creditor party has certain rights to compel the debtor to fulfill the obligations under the contract in case of default or to compensate the damages arising from debtor’s failure to fulfill it. 

• Exact Performance and Damages for Delay in Performance

It is the most reasonable elective right that can be preferred in cases where it is important for the creditor to perform the debt exactly. It is possible to claim the performance of the debtor’s obligation under the contract and the loss incurred because it was not fulfilled at the time of the performance.

Here, the demand for exact performance arises from the debt due, and the claim for delay compensation arises from the default of the debtor. In cases where exact performance and delay compensation are requested together, the creditor must have fulfilled the performance undertaken by the contract according to the conditions determined in the contract.

The delay compensation covers the difference between the situation in which the performance is fulfilled on time and the situation in which it is fulfilled after the delay. The difference here can be interpreted broadly and the compensation paid to third parties due to the delay in the performance of the debt, the lost value of the movable and immovable goods and money, the warning and trial costs can be demanded from the debtor. As a rule, delay compensation covers between the date of performance of the debt and the date of default, but there are also opinions in the doctrine that a claim for compensation can be requested for the period between the date of performance and the date of maturity. If the debt is performed after the delay, the creditor will not be able to claim delay compensation if the creditor accepts the same performance without any reservation.

If the debt is a monetary debt, default interest is demanded instead of delay compensation. If the default interest does not cover the entire loss, it is possible to claim excess damage. In order for the excess damage to be claimed, the loss must not be covered by default interest, there must be a causal connection between the default and the loss, and the debtor must not be able to prove that has no fault in default. The concept of excess damage will appear as a loss of profit in the positive damage section.

• Waiver of Performance and Positive Damage

It is one of the optional rights that can be preferred in cases where it is not important for the creditor to perform the debt exactly. The concept of positive damage means the difference between the condition of the creditor’s assets due to the fact that the debt is not performed at all or duly and the hypothetical situation that will be in if the debt is duly performed. The question to be asked in order to determine the positive loss is “What would be the condition of the creditor’s assets now if the debtor had fulfilled his obligation?” 

The legal benefit protected by this optional right granted to the creditor is the benefit of the creditor that will arise as a result of the debtor’s performance of debt by relying on the contract.

In order to exercise this optional right;

1. It must be a valid contract. It is not possible to claim any rights based on a contract that is legally invalid or void.
2. Behavior contrary to the debt must be exhibited. It is not possible to claim the damage of the creditor under the title of positive damage as a result of the performance made in accordance with the conditions determined in the contract. Only the damage caused by the act contrary to the contract between the parties can be claimed under the title of positive damage. 
3. The broad sense of trust arising from the fidelity principle to contract must be violated. Here, violated trust should not be the trust of the parties to each other in a narrow sense, but the trust of the parties to the contract in a broad sense. The creditor does not have to prove that her loss was caused by creditor’s trust in the contract. It is accepted that the creditor has suffered a loss due to creditor’s trust in the contract. If there is a contrary situation, it must be proved by the debtor.
4. The debtor must be at fault in causing the damage. The creditor does not have to prove that the debtor is at fault. The fact that the debtor has confidence that will perform debtor’s debt in accordance with the contract and fails to perform is sufficient to prove that the debtor is at fault.

Rights That The Creditor May Claim Under The Title Of Positive Damage

• Value of Unperformed Performance
• Expenses Made Considering That The Performance Will Be Fulfilled: If there are expenses to be incurred in case of fulfillment of the performance, it is not possible to claim these expenses.
• Expenses İncurred By The Creditor To Obtain The Claim: The costs of the warning sent to the debtor, enforcement proceedings or trial costs can be claimed under this heading.
• Costs incurred as a result of the creditor being affected by another legal relationship due to the debtor’s failure to fulfill debtor’s performance: If he is a debtor of another contract by relying on the contract to which he is the creditor, the delay compensation, excessive loss, etc. paid to the creditor in the second contract due to the default of the debtor in the first contract, this payments can be requested under this heading form first contract’s debtor.
• Expenses Made For Replacement Purchases For Unperformed Claims
• Losses Due To Decrease In Value Of The Performance: Losses arising from the decrease in the purchasing power of money or the exchange rate change in foreign currency debts can be claimed under this heading.
• Expenses Incurred In Order To Detect The Damage And Prevent Its Increase

3. Rescission of Contract and Negative Damage

It is one of the optional rights that can be preferred in cases where it is not important for the creditor to perform the debt exactly. The concept of negative damage means the amount that will not decrease in the assets of the creditor if the reneged contract has never been established. It is the difference between the actual state of the assets in the hypothetical state, in which the damaging event did not occur that nullified the trust created and actual situation of the property of the injured party as a result of arousing a justified confidence that a debt relationship will be established, valid, and performed even if it is not valid.The question to be asked in order to determine the negative damage is “What would be the condition of the assets if the injured person was not a party to this legal relationship?” 

The legal benefit protected by this optional right granted to the creditor is the benefit that is damaged due to the inability to establish the contract as desired or its invalidity. The purpose of regulating this optional right by the legislator is to make the damaging behavior of the debtor as if it had never been done.

In order to exercise this optional right;

1. There must be a contract. It does not matter whether it conforms to the will of the parties or whether it is valid or not. However, in order for the negative damage to be claimed, there must be a contract.
2. Behavior contrary to the debt must be exhibited. In a contract that is thought to be valid or believed to be performed even though it is known to be invalid, it is necessary to act contrary to the obligation undertaken.
3. The trust of the parties to each other should be violated. The trust of the parties to each other, not to the contract, must be violated. Here, it is obligatory to prove that the damage resulted from the failure of the trust of the injured party to the other party of the contract.
4. The debtor must be at fault in causing the damage. Since the trust that is wasted here is not to the contract, but the trust of the parties to each other, it is necessary to prove by the injured party that the party who nullified the trust was at fault in her act.

Rights That The Creditor May Claim Under The Title Of Negative Damage

• Costs for Establishment of the Contract: A broad interpretation of these costs is not possible. While the expenses incurred for renting a hall or reserving it at the hotel can be claimed in order to make a contract, vacation expenses incurred at the booked hotel cannot be claimed.
• Losses Due to Missed Opportunity to Conclude Another Contract Due to the Breached Contract: It is not possible to claim the profits that are likely to be obtained as a result of the contract in which it is damaged.

As a result, in cases where the performance is important, the exact performance and delay compensation is demanded, while in cases where the performance is not important, waiver of performance and positive damage or withdrawal from the contract and negative damage are requested. Although there are exceptions, in the presence of a valid contract, if the performance is not important, positive damage is demanded, while in cases where the contract is invalid, negative damage is demanded. In determining the optional right to be used by the injured party, contracts, defaults and acts should be examined in detail.

Att. Mücahit Tüz

Att. M. Talha Arslan