Code of Obligations

Frequently Asked Questions

• What is Penal Clause?

  The penal clause is the act that the debtor undertakes to perform against the creditor if he does not perform his original debt at all or properly in the future. Therefore, the penal clause is an accessory act that can only arise from the breach of the original debt. If the debtor has committed to pay a penal clause, the creditor will now have the opportunity to obtain compensation without having to claim any damage or prove the extent of the damage because the penal clause is a predetermined fixed amount (fixed) compensation that should be given in case of breach of the debt. The nature of the original debt is not important for the penal clause to be decided: a penal clause may be decided for the debts of doing or not doing as well as a debt of giving.

• Is There a Statute of Limitations in the Case of Unjust Enrichment?

  The right of claim arising from unjust enrichment becomes time-barred after two years, starting from the date on which the right holder learns that he has the right to demand back, and possibly ten years, starting from the date of the enrichment. If the enrichment is realized by the enriched person gaining a right of receivable, the other party can always avoid performing this debt, even if the right of claim is time-barred (TCO art.82).

• Who Can File a Lease Declaratory Case?

  Both the lessor and the lessee can file the lawsuit for the determination of the rental price. The lessee may file a lawsuit for determination in order to reduce the excess rental price and the lessor to increase the low rental price. In shared ownership, each stakeholder may request the determination of the rental price in proportion to their share. If the immovable is owned in partnership (collaboratively), all partners must jointly file a lawsuit for the determination of the rental price. Even if one partner sues for the determination of the rental price, the other partners can participate in the case by giving their consent later.

• What is a Contract of Works?

  A work contract is a contract that includes mutual acts. The contractor's act is to create the work and deliver it to the employer, while the counter-action of the employer is to pay the price of the delivered work. The contract of work is also called the contract of exception [istisna sözleşmesi].
  The contract of work is defined in article 470 of the Turkish Code of Obligations (TCO) numbered 6098, as “A contract of work is a contract in which the contractor undertakes to create a work and the employer undertakes to pay a price for it.” Contracts of work are a type of performance contract that imposes mutual obligations on both parties. The contractor is obliged to deliver the work to the employer by making it in accordance with the provisions of the law and contract, scientific, technical and artistic rules and completing it on time due to the duty of care he has incurred against the employer. There are two basic elements in contracts of work: “work” and “price”. In these contracts, the contractor undertakes to produce the work with the desired feature, and the employer undertakes to pay an interest in return for this work. The fact that the parties did not decide on a price while they agreed does not affect the conclusion of the contract. Even if the parties have not agreed, it is accepted that there is a contract of work if it is known or necessary to know that the price will be paid (HGK-K.2021/506)

• What does joint liability/indebtedness mean?

  Joint liability or indebtedness is regulated in Article 162 of the Turkish Code of Obligations No. 6098. Joint indebtedness is a state of joint indebtedness in which each of the debtors is obliged to perform all of an act due to a declaration of will or a legal provision, the creditor is authorized to demand the performance from any of the debtors to perform the whole thing only once, and with the performance of one of the debtors or the act that replaces the performance, the others will be relieved of their debt to the creditor at this rate.