Results of debtors’ provisions has been regulated on general provisions of Turkish Obligation Law (TBK) Litigation. According to TBK, as debtor become overdue regard to contract, there are three main option for payee to demand from debtor. Those options have been stated on TBK art(125) explicitly, which are execution of contract with default interest, positive loss in terms of execution of contract or, to renege contract with loss due to execution of contract hasn’t been done. However, those options cannot be preferred by payee without any conditions.
Each contract involve varied provisions and it may be required different conditions. On the other hand, conditions of execution of the contract may be changed extremely(such as covid-19) or the contract may inherent provisions to prevent use of those options directly via payee. It can be said that this is the result of adaptation of liberty of contract in Turkish Law. No doubly, each contract should be examined separately with provisions that the contract has involved. However, TBK has framed the liberty of contracts and designate the general rules. First and fundamental rule on default provisions, defaulting party must proof that it is not his fault to avoid the default provisions. Thus, if the date of execution of the contract has been stated in contract and if the date has expired, defaulting party take burden of proof that he is flawless regard to go into default.
Turkish Obligation Law has regarded those situations and regulated those provisions according to condition of the contract and moreover, situation of execution of the contract. Therefore, it is needed to be analysed each options of payee to decide which option may bring best result for payee and moreover, which option or options can be used by payee legally. Before start to extend the rights of payee regard to default provisions, it is needed to remind that, to pursue the legal rights, regardless the legal issue between the parties, Turkish Procedural Law must be applied strictly.
Kİnds of debt is important regard to selection of payment options when default of debtor occurs. There are various kind of contract to obligate parties to do or give something. Moreover, when one of party may obligate to pay cash, other party may obligate to do something. Thus, some options of payee which is stated in TBK is only can be used for specific obligation. If the subject of default is money, provisions of enforcement law may be used to easier and earlier result. If the conflict between parties is about cash, the amount of cash is demanded from debtor with default interest. However, if there is any specific conditions is stated in contract, those conditions should be considered according to if those clauses are legal or not in Turkish Litigations.
It is the basic type of demands of payee from debtor. Regardless another circumstances, payee can demand to executions of provisions of the contract between parties and at the same time payee also demand the interest due to default of debtor.
It can be said that usually demand of positive loss is most beneficial option for payee. Because, payee demand his profit if the contract would be executed completely on time. In other words, payee achieve the target profit as if the debtor had paid his debt to payee on time. However, to apply this option, each case should be considered executively. Likewise, to demonstrate whether demand of positive loss is selectable or not there are several different decision supreme court has made.
İf one of party doesn’t carry out the provisions of contract, the payee party can renege on the contract and the payee can also demand the negative loss due to default of debtor party. However, each case should be considered separately in light of legal precedent of supreme court if this option is requirable or not.