In this article, we will examine the penalty clause (penalty condition), which has an important place in our law, especially in construction (work) agreements. In order to better understand our study, we present our findings and evaluations in the form of questions and answers. In our study, we will examine what exactly the penalty clause means, its legal nature, functions, types, the legal actions in which the penalty clause cannot be decided, and most importantly, whether it is legally possible to eliminate or reduce the amount of the penalty clause determined in the agreement by a judge’s decision.

1. What is Penalty Clause?

First of all, to make a definition; the penalty clause is such a performance commitment that the debtor undertakes to perform an act if they do not fully and completely fulfill their principal debt to the creditor on time and on place, or the debtor gains the right to withdraw from the agreement by paying the agreed price. [1] Penalty clause is a pressure tool that the creditor may use against the debtor in order to obtain performance.[2] In principle, the penalty clause consists of two words; The word “penalty” here means the sanction of the debtor to make a payment in case of breach of the debt, and the word “condition” means that this sanction will be applied on the condition that the debtor acts in breach of the debt.[3] When we define the penalty clause according to the decisions of the Court of Cassation; dated 18.01.2007, file numbered 2006/2810 and decision numbered 2007/162 of the 15th Civil Chamber of the Court of Cassation, the definition of “Penalty clause is a value that the debtor must pay in case of non-fulfillment or incomplete fulfillment of a valid debt or non-fulfillment at a certain place and time.”

2. What is the Legal Nature of the Penalty Clause?

There are intense debates in the doctrine regarding the legal nature of the penalty clause. In this study, we will not go into the details of these discussions. However, to summarize; while some opinions in the doctrine argue that the penalty clause has a penalty nature[4], some argue that the penalty clause has the quality of lump-sum compensation[5]. While another view in the doctrine argues that the penalty clause is a mixture of punishment and compensation, another view claims that the penalty clause is in the nature of insurance.[6] The view we hold is that the legal nature of the penalty clause is a guarantee. Because, penalty clause is a guarantee for performance thanks to the psychological pressure it creates on the debtor until the original debt is fulfilled, and it is a guarantee in the form of facilitating the compensation of possible damages that the creditor may suffer after the breach of the original debt.[7]

3. What is the Purpose of the Penalty Clause?

As it may be understood from the definitions given above, a penalty clause is a condition agreed upon by the parties to ensure the performance of the principal debt. The purpose of the penalty clause is to ensure the performance of the act. In this respect, the penalty clause may also be considered as a guarantee. Because, if the debtor acts contrary to the debt, that is, if they do not perform the debt at all or properly, they will have to pay the penalty stipulated in the agreement, and this will put them in a difficult situation in terms of their assets, and they will perform the debt in accordance with the debt.[8]

There are doctrinal differences of opinion regarding the purpose of the penalty clause; in this study, a purposeful evaluation will be made based on the Court of Cassation decisions.

In the decision of the 19th Civil Chamber of the Court of Cassation, with the file numbered 2015/17632 and decision numbered 2016/9261 and dated 01.10.2017; “…the purpose of the penalty clause is to induce the debtor to act in accordance with the debt. The penalty clause has the purpose of strengthening the actual receivable” and they have made it clear that the penalty clause is the purpose of compelling them to perform.

In the decision of the Assembly of Civil Chambers of the Court of Cassation, with the file numbered 2014/13-1013 and decision numbered 2016/318 and dated 16.03.2016; “…the parties to the agreement try to obtain some guarantees in addition to the actual receivable in order to strengthen their rights. In this sense, the penalty clause; it is an institution that provides assurance to the creditors such as pledge and surety and its application is becoming widespread day by day. The penalty clause aims at ensuring the performance of the agreements debt rather than compensating the damage. In case of breach of the debt, the creditor has the opportunity to obtain compensation without having to prove that they have suffered a loss or the extent of the damage.” When we interpret this decision, it will be clearly seen that the function of coercing the performence of the penalty clause outweighs.

4. What are the Characteristics of the Penalty Clause?

Below we list the qualifications item by item. Accordingly;

  • If a penalty clause is demanded through the penalty clause in the agreement, the creditor has no obligation to prove their damage. In other words, even if the creditor does not suffer any damage, they may demand the penalty clause determined in the agreement.
  • Pursuant to article 182/II of the Turkish Law of Obligations, the penalty clause becomes due together with the original receivable. Based on this, the following conclusion is reached; the penalty clause is an accessory right attached to the main claim, and if the original claim becomes impossible, the penalty clause may not be demanded. In other words, since the penalty clause is a sanction to enforce the performance of the original debt, its birth, continuation and termination depend on the existence of the original debt; For this reason, the penalty clause is an additional debt attached to the main debt, just like the surety.[9] However, when the penalty clause becomes due, the penalty clause will become an independent debt and will no longer be an accessory. So when does the penalty clause become due? Since the penalty clause is determined in the agreement, it will become due upon the realization of the above-mentioned condition -not fulfilling the performance. In order for the penalty clause to become due, the debtor does not need to be put in default.
  • To answer the question of whether the penalty clause may be transfered, if the penalty clause is not due, its transfer depends on the fate of the original receivable, that is, it may only be assigned together with the original receivable.[10] If the penalty clause has become due, it may now be assigned independently from the original receivable.[11]
  • Although the agreement regarding the Penalty Clause is not bound to any form, the penalty clause agreement that is intended to be legally bound to a contract that is legally subject to form, it will have to be concluded in the same way.[12] Based on this, if the original agreement is invalid because it does not comply with the form, the provision regarding the penalty clause will also be invalid.
  • The penalty clause is sometimes determined not as an amount to be paid by the contractor, but as an amount deducted from the contractor’s receivables.[13] For example, such are the records in the agreement stating that “2% of the contractor’s remuneration will be deducted for each month in which the delivery of the work is delayed” or “2% will be deducted for each delayed month”.[14] Although such records do not comply with the definition of penalty clause defined in Article 179 of the Turkish Law of Obligations, the rules regarding the penalty clause should be applied here as well, since their functions are the same.[15]

5. May a Penalty Clause Be Determined in Every Legal Action?

In this study, we will try to answer the question of whether a penalty clause may be decided in every legal transaction by listing the transactions in which the penalty clause is not decided rather than the transactions in which the penalty clause is determined.

  • Article 119/II of the Turkish Civil Code; “The withdrawal compensation or penalty stipulated for the avoidance of marriage may not be sued; however, the payments made may not be claimed back.” Penalties may not be demanded pursuant to the provision.
  • There are also cases where the law does not explicitly but indirectly prohibit the penalty clause. Some of these prohibitions are due to the provisions which is about form, while others are due to the characteristics of the debts willed to be strengthened and secured.[16] Provisions regarding the form constitute an obstacle to the imposition of penalty clauses in some cases.[17] For example, in addition to the compulsory elements in the policy, it is possible to include some optional elements in the policy upon the request of the parties.[18] However, there are prohibited records that prohibit the inclusion of certain matters in the policy.[19] These unauthorized records are either deemed not written as per the law or invalidate the policy.[20] It is accepted that the records regarding the penalty clause in the policy will be deemed not written. In that case, if a record such as “You will pay 100,000-TL to A or A’s order for remittance for this policy, if you do not pay, you will pay a penalty clause of 30,000-TL”, this penalty clause will be deemed not written.[21] The same is true for checks and bills.[22] However, the penalty clause may be determined by a separate agreement other than the policy and check.[23]
  • Article 346 of the Turkish Law of Obligations No. 6098; “No other payment obligation may be imposed on the lessee other than the rental fee and ancillary expenses. In particular, agreements regarding the penalty condition to be paid or the subsequent rental fees to be due in case the rent is not paid on time are invalid.” In accordance with the provision, it is stated that if the rent is not paid on time, the records regarding the payment of the penalty clause are invalid.
  • Article 260/II of the Turkish Law of Obligations No. 6098; “If the seller returns from the agreement before the transfer of the good due to the default of the buyer in the payment of the down payment, the buyer may request compensation from the buyer only for the devaluation suffered after the establishment of the contract with legal interest to be processed on the unpaid down payment until the date of return from the contract.If the penalty clause is agreed, it may not exceed ten percent of the cash sale price.” In the context of the aforementioned article, the penalty clause is limited to only ten percent of the sales price; an amount exceeding ten percent is considered invalid.
  • Article 271/III of the Turkish Law of Obligations No. 6098; “In the event that the buyer, who is default in agreements for more than one year, wants the transfer of the goods, the seller may request to eliminate the decrease in the value of the goods after the transfer request along with the legal principal interest. If the penalty clause is foreseen, its amount may not exceed ten percent of the sales price.” In accordance with the provision, penalty clause is again limited to ten percent.
  • According to Article 589/ IV of TCO ‘Agreements providing that the guarantor will be liable for damage resulting from the extinction of the contract and any contractual penalty are of absolute nullity.’ Therefore it is accepted that clauses that the surety will be liable for the penal clause are invalid.
  • According to Article 22/I of Regulation on Subscription Agreements, ‘the consumer has the right to terminate the subscription agreement for an indefinite period or a fixed-term subscription with a duration of one year or more, at any time, without giving any reason and without paying any penalty.’ It has been stated that indefinite subscription contracts with a duration of one year or longer, to which the consumer is a party, can be terminated by the consumer without paying any penalty.

6. Can the Penal Clause, which is accepted as a guarantee according to the majority opinion in the doctrine, be secured with a collateralor Personal Guarantee?

It is possible for the penal clause itself to be guaranteed by a guarantee instrument.[24] In this context, the penal clause can be guaranteed with a real estate pledge from the collateral guarantees; either it can be secured with a pledge of movables.[25] At this point, it is necessary to ask this following question: Can penal clause be guaranteed with a guarantor, which is a kind of personel guarantee? According to Article of TCO 589/IV it cannot. In the aforementioned article it is stated that, the clauses that the guarantor will be liable for penal clause are invalid.

7. What are the types of Penal Clauses?

7.1 Alternative Penal Clauses

According to Article 179/1 of TCO “If the penalty has been agreed for the absence or proper performance of a contract, the creditor may request the performance of either the debt or the penalty, unless otherwise understood from the contract.” Pursuant to the aforementioned article, a right of choice is given to the creditor. The creditor may demand either the performance of the debt or the penal clause.  The creditor, after exercising his right of choice, that is, after accepting the performance of one of the debts or penal conditions, cannot demand the other. Because the creditor cannot be reverse this action after using his authority, which is like formative right exchanger. [26]According to decision made by 15th Civil Law Department of the Court of Cassation, file numbered 2003/4482 , decision 2004/1486 and dated 17.03.2004: Since the penal clause is an elective penalty, the creditor can only request either the execution of the contract or the payment of the penalty that will replace the performance interest… The defendant and the counter-plaintiff, who own the land, are deemed to have waived the execution of the contract by asking for the optional penalty for the performance of the contract.

In the contract, it can be decided that the creditor can demand both performance and penal clauses, and this agreement is valid.[27] Because the Article 179/I of TCO (As can be understood from the phrase, unless the contrary is understood from the contract) is substitute rule of law.) For this reason, the parties may either decide in the contract that the creditor can only demand a penal clause in case of the debtor’s violation of the debt, or they can also decide that the penalty will be paid together with the debt. [28]

At this point, it is necessary to ask this following question: If the creditor demanded both the performance of the act and the penal clause, even though it was not agreed in the contract, what should the court do? In such a case, should the court adopt whether the creditor prefers the optional penalty or the performance of the act? The answer to this question was given in the 23rd Civil Law Department of the Court of Cassation, dated 27.03.2013, numbered 2012/5450 E., 2013/1923 K. Pursuant to the aforementioned decision; the plaintiff, who makes the request, should be asked and explained whether he/she wants the performance of the act or the optional penalty, and according to that statement, the court should decide to reject the requests other than the penal clause or the request for performance. 

The purpose of the optional penalty is to compel the debtor to perform and to cover the possible loss of the creditor, the amount of which is determined as a lump sum, in case the contract is not performed at all or properly. [29]

In order to request for the optional penal clause, the contract must not be rescind. It is because the penal clause is an accessory debt attached to the principal debt, so the employer can only ask for the optional penalty if he waives specific performance. [30]

To give examples based on the Court of Cassation’s decisions regarding to the elective penal clause;

The decision of the 13th Law Department of the Court of Cassation; file numbered 2003/17643., decision numbered 2004/6396 and dated 29.04.2004;

‘’Article 2 of the section titled “penal clause” of the sales agreement dated 1.1.2000 between the parties’’ ‘’If the seller, by selling apartment No. 6 on 1.6.2001, does not transfer the title deed of the apartment to the buyer, the agreement will be deemed terminated without the need for notice being. The Seller will unconditionally pay to the buyer DM 10.000 penal clause. The seller will also repay the DM 10,000 received in advance.’’ have decided the provision. The penalty in this provision, is the elective penalty stipulated in the second paragraph of Article 158 of the Turkish Law of Obligations.’’

The decision of the 15th Law Department of the Court of Cassation,  file numbered 2007/5130, decision numbered 2008/977 and dated 06.02.2008;

‘’Article 15 of the agremeent between the parties, It has been decided to pay compensation in the amount of 40 billion Turkish liras if the mutual fulfillment of obligations is not achieved. This provision of the agreement is in the nature of an elective penalty regulated in the first paragraph of Article 158 of the Turkish Law of Obligation.’’

The decision of the 15th Law Department of the Court of Cassation; file numbered 2006/2961, decision 2006/4723 and dated 24.07.2006;

In article 19 of the agreement between the parties, dated 21.05.1993, titled “Failure to fulfill the commitment”; the provision that ‘’the cooperative when does not fulfill its from arising this agreement and its annexes, when the construction is not completed, left unfinished or does not comply with the provisions of the agreement; the cooperative accepts and undertakes to pay a penalty of 5,000,000,000.- TL to the owners’’ is written. It seems that; the penalty specified in this article, it is an elective penalty regulated in the first paragraph of Article 158 of the Law.”

The decision of the 15th Law Department of the Court of Cassation, file numbered 2017/2402, decision numbered 2017/4258 and dated 04.12.2017;

Article 6 of the agreement dated 07.03.2011 has been made regulation as  ‘’In the event that the parties do not comply with the agreement, they undertake to pay TL 20,000.00 (twenty thousand liras) in advance.’’ The payment accepted by this regulation is a penal clause; since it has been decided for the case that the agreement is not performed at all or as it should be,Article 158/1 of the Turkish Law of Obligations No. 818 in effect on 07.03.2011 and 179/1 of the Law of Obligations No. 6098 which entered into force on 01.07.2012 It is an elective penalty as expressed in the article.’’

At this point, it is necessary to ask the question; if the employer has chosen the penalty clause, does he/she have to fulfill own performance?[31]

In answering this question, a distinction must be made. According to this;

  • If the amount of the penalty is clearly lower than the value of the original act, the employer does not have to fulfill her/his own performance.[32]
  • If the amount of the penalty is equal to or higher than the value of the original act, the employer must fulfill her/his performance.[33]

7.2 Added Penalty to the Performance (Delay Penalty)

2nd paragraph of article 179 of the Turkish Law of Obligations states that ‘’ If the penalty is determined for the non-performance of the debt at the specified time or place; unless the creditor has expressly abdicate from the right or accepted the performance without reservation, may request the performance of the penalty along with the principal debt.’’

In order to request a penal clause in accordance with the aforementioned article,

  • First of all, there should be a record in this direction in the agreement.
  • Although the time and place of performance of the principal debt have been determined, the debtor must not have fulfilled the debt at all or duly at the specified time or place.
  • The agreement must not have been withdrawn. However the parties may decide to pay a penalty for delay in cases where the agreement is broken, -which would be valid.[34] (The decision of the General Assembly of the Court of Cassation, numbered 2006/15-545-569, and dated 27.09.2006; The penalty attached to the performance within the scope of positive damage –if there is no separate regulation in the agreement- may be demanded as long as the agreement continues to exist.)
  • The debtor must be at fault for resisting.
  • The creditor has not explicitly waived the principal debt,
  • The creditor must not have accepted the performance without reservation – which if the creditor accepts the performance without any reservation, he/she will no longer be able to claim the penal clause. (The decision of the General Assembly of the Court of Cassation, numbered 2006/15-545-569 and dated 27.09.2006; ‘’It is also required that this right (related to the penalty attached to performance) has not been expressly abdicate or that the performance has been accepted with reservation.) ‘’(Decision of the 15th Civil Chamber of the Court of Cassation, numbered 2013/762-3303 and dated 22.05.2013. ‘’It is the penalty attached to the performance defined in Article 158/II of the Law of Obligation No. 818, which was decided in the 7th article of the agreement, and according to the fact that the right to demand this penal clause has been lost since it was not decided otherwise and no reservation was raised at the time of delivery’’)

conditions are sought.

To give examples of Penalty Added to Performance from the Court of Cassationdecisions;

The decision of the 15th Civil Chamber of the Court of Cassation, file numbered 1999/774, decision numbered 1999/2125 and dated 26.05.1999;

‘’In the 3rd article of the agreement signed between the parties, dated 16.3.1997, “P… AŞ agrees to pay 30,000 DM if it does not fulfill its commitment on the specified date, and our actual receivable is excluded from this figure. ‘’ provision is included. This provision in the agreement is not an elective penalty in article 158/1 Turkish Law of Obligations, but a penalty attached to the performance in article 158/2. For this reason, it is possible to demand a penalty along with the performance. ‘’

The decision of the 15th Civil Chamber of the Court of Cassation, file numbered 2004/1465, decision numbered 2004/5468 and dated 28.10.2004;

‘’In the 5th article of the Modification Agreement in the Form of Arrangement concluded between the parties on 11.4.2002, “On 30.8.2002 (except for force majeure), the elevator in the A block will work, a temporary occupancy report will be obtained, the roof will be insulated, all the conditions in the previous agreement will be fulfilled, the landscaping will be done, the heater will be in a state of fire, the condominium will be taken over, it will be removed from the construction view. Otherwise, the cooperative is obliged to pay compensation of 30.000.000.000 TL (thirty billion) to the land owners. ‘’ provision is included. This penalty in the agreement is not an elective penalty, but rather a penalty that is in added to the performance. According to the second paragraph of Article 158 of the Turkish Law of Obligations; if the parties have decided to pay a penalty to be paid in case the agreement is not executed at a certain (determined) time or at the constitutional (decided) place, there is a penal clause added to the performance.

The decision of the 15th Civil Chamber of the Court of Cassation, file numbered 2012/4511, decision numbered 2013/2861 and dated 02.05.2013;

‘’The agreements between the parties are undisputed; The date of expiration has been determined for the productions to be made in these agreement, The defendant in a word the contractor is accepted that the employer will pay a daily penalty of 1,000 TL/day for each delayed day if does not comply with the work schedule. This penalty is by nature a penalty attached to the performance regulated in the second paragraph of article 158 of the Turkish Law of Obligations.’’

8. Penalty of Withdrawal of the Agreement

Paragraph 2 of Article 179 of the Turkish Law of Obligations states; “The debtor’s right to prove that he is authorized to terminate the agreement by rescinding or terminating the agreement by fulfilling the agreed penalty is reserved”. With the aforementioned provision, the penalty of withdraw was regulated. 

The purpose of the withdraw penalty is to make it easier for both parties to withdraw or terminate the agreement by paying the amount of the penalty they have previously determined as a lump sum. By paying this penalty, the debtor gets rid of the performance debt, which is the reason why it is called a penalty that prevents performance. [35]

Penalty of withdrawal may not be demanded if the agreement is terminated with mutual agreement. As a matter of fact, the decision of the 15th Civil Chamber of the Court of Cassation, dated 8.05.2007 and numbered 3411-3565; “It is understood that the agreement between the parties was terminated by mutual agreement. In that case, in the 5th article of the agreement dated 30.06.1998, it is not appropriate to stipulate the 20% penalty clause, which is determined to be paid over the cost of the part of the construction carried out until that date in case of wrongful termination.”  From this decision, it has been accepted that the penalty of withdraw will arise only in case of withdraw or unilateral termination.

Even with the penalty of withdrawal, the parties are obliged to return what they have earned to each other’s assets due to the reneged agreement, in accordance with the provisions of unjust enrichment. [36]

If the parties have determined a penalty but have not made a determination as to whether this penalty is a penalty condition or a penalty of withdrawal, the creditor may think that this penalty is a penalty condition and the debtor is a penalty of withdraw.[37] If there is any hesitation in this matter, the existence of the penalty condition will be accepted.[38] Likewise, from the 3rd paragraph of Article 179 of the Turkish Law of Obligations, the debtor must prove that the agreed penalty is not a penalty clause but a penalty of withdrawal.

9. Evaluation of the Relation between the Penal Clause and the Fault

In order for the debtor’s penal clause liability to arise, the contractor must both act in breach of the debt and this breach must be based on a fault that may be attributable to the contractor.[39] Penalty clause does not depend on the “damage” condition of the compensation, but on the “fault” condition.[40]  The contractor’s violation of the debt may be in the form of not fulfilling the obligation at all or in the form of incomplete fulfillment.[41] For this, it does not matter whether the fault of the contractor is heavy or light. [42]Any fault attributable to the contractor is sufficient for the debtor to be liable for the penalty clause.[43]

10. Evaluation of Penal Clause and Damage Relation

If the penal clause is agreed by the parties in the agreement, the creditor may demand the penal clause even if does not suffer any loss.

At this point, it is necessary to ask the following question; May the creditor claim both the penal clause and the loss suffered in the event that an elective penalty or a penalty attached to performance has been agreed?

To answer this question with the decision numbered 27.02.2001, 10625/1710 of the 11th Civil Chamber of the Court of Cassation, in the aforementioned writ, “penalty clause is positive damage. It is clear that the penalty clause in the concrete case is also included in the agreement in order to compensate for the damage that may arise without delay. As a result, the plaintiff creditor does not have the right to claim damages limited to the penalty clause. This loss is already covered under the penalty clause; The convenience afforded to the creditor by law is limited to the opportunity to rectify the damage on a fixed basis without facing the obligation to prove the existence and amount of the damage.’’ in the form of determinations and evaluations are included. Accordingly, unless otherwise agreed in the agreement, the damage exceeding the penal clause may be requested, provided that the existence of fault and damage is proven. From this point of view, if the creditor does not want the penalty clause and only wants damages, the penalty condition not sued should be deducted from the requested compensation amount, taking into account the last paragraph of Article 180 of the Turkish Law of Obligations. [44]

As the debtor has the right to withdraw from the agreement by paying the agreed penalty amount (punishment that prevents performance), he/she may not demand more damages to be compensated

Since the rules regulating the relation between the penalty clause and the damage are complementary  substitute law, it is possible for the parties to regulate the relation between the penalty clause and the damage differently in the agreement, accordingly; it is possible for the parties to decide that in case of breach of the agreement, they may only request a penalty clause or that they may claim both penalties and damages (or that the employer will cover all damages, even if the contractor is not at fault.)[45]

11.  Is it possible to make a discount in the penal clause?

2nd paragraph of article 182 of the Turkish Law of Obligations states “The parties may freely determine the amount of the penalty.” In accordance with the aforementioned article, the penal terms and amount were released for the parties to determine. However, with the provision of the same article, “The judge automatically lowers the sentence that deems excessive”, it is accepted that the penal clause may be reducted in the presence of certain conditions.

When answering the question of whether the Penal Clause may be reduced, it is necessary to separate the subject as commercial affair and non-commercial affair.

  • According to Article 22 of the Turkish Commercial Law on commercial affairs; “The debtor, who has the title of merchant, may not ask the court to reduce the fee or agreement penalty on the allegation that an excessive fee or penalty has been agreed, in the cases specified in the 2nd paragraph of the 121st article, and the 3rd paragraph of the 182th article, the 525th article of the Law of Obligations.” rule over. Pursuant to the aforementioned provision, if the debtor is a merchant, he may not request the reduction of the penalty stipulated as a rule. However, if the penalty decided exceptionally is severe and high enough to cause the financial ruin of the debtor who is a merchant, it is possible to cancel it completely or partially, as it is considered against good customs and morals. As stated in the decision numbered 23.03.2010, 2009/1814-2010/1643 of the 15th Civil Chamber of the Court of Cassation; ‘’The parties who are merchants may not demand reduction on the grounds that the penalty is exorbitant. In order to determine and indication the violation of morality and customs, the economic status of the debtor at the date of acceptance of the penal clause is investigated. The trade registry files of the defendants, if any, are summoned and the total amount of capital is determined. If the aforementioned penal clause is collected, it is necessary to have the expert committee examine whether it will be possible for the debtor to continue commercial life as before, and if it is not possible, whether this situation will cause economic ruin.’’
  • When answering the same question in terms of non-commercial affairs; As stated in the 04.11.2011, 2011/9293-16080 numbered decision of the 13th Civil Chamber of the Court of Cassation, the economic situation of the parties, in particular the solvency of the debtor, the reasonable and fair measure between the benefit of the creditor in the event of the performance of the original debt and the benefit that will be provided in the payment of the penal clause, the benefit of the debtor by not fulfilling the debt, Whether or not the penal clause may be reduced by taking the debtor’s degree of fault and the severity of the breach of debt as a criterion are being evaluated.

It should also be stated that if the debtor has paid the penalty clause, the judge will now reject the request for the reduction of the penalty clause. Provisions that remove the reduction from the penalty clause are invalid because this provision is from public order.[46]

[1] EKİNCİ Hüseyin, Doktrin ve Uygulamada Cezai Şart, Seçkin Yayınevi, Ankara 2004, p.27

[2] DUMAN İlker Hasan, İnşaat Hukuku, Seçkin Yayınevi, Ankara 2021, KILIÇOĞLU with reference to p.701, p.575

[3] DUMAN, KILIÇOĞLU with reference to p.701, p.575

[4] YAĞCIOĞLU Burcu, Türk ve İsviçre Hukuku’nda Ceza Koşulu, Seçkin Yayınevi, İzmir, 2019, p.25

[5] YAĞCIOĞLU, p.25

[6] YAĞCIOĞLU, p.25

[7] YAĞCIOĞLU, p.33

[8] USLU Ebubekir, Uygulama Örnekleri Yargıtay Kararları ile Türk Borçlar Hukukunda Ceza Koşulu, Seçkin Yayınevi, İstanbul 2018, p.29

[9] KIRMIZI Mustafa, Eser Sözleşmesi ve Arsa Payı Karşılığı İnşaat Sözleşmesi, Şen Matbaa, Ankara 2014, p.1121

[10] TUNÇOMAĞ Kenan, Türk Borçlar Hukuku Cilt 1, Genel Hükümler, İstanbul 1976, p.859

[11] TUNÇOMAĞ, p.859

[12] TEKİNAY Selahattin Sulhi, AKMAN Sermet, BURCUOĞLU Haluk, ALTOP Atilla, Borçlar Hukuku Genel Hükümler, 7.Bası, İstanbul 1993, p.344

[13] DUMAN, p.705

[14] DUMAN, p.705

[15] ÖZ Turgut, İnşaat Sözleşmesi, p.139

[16] TUNÇOMAĞ, p.55

[17] USLU, p.42

[18] USLU, p.42

[19] USLU, p.42

[20] USLU, p.42

[21] USLU, p.42

[22] USLU, TUNÇOMAĞ with reference to p.42, p.79

[23] USLU, TUNÇOMAĞ with reference to p.42, p.79

[24] YAĞCIOĞLU, p.51

[25] TUNÇOMAĞ, s.77

[26] SELİMOĞLU Yaşar Engin, Eser Sözleşmesi, Adalet Yayınevi, Ankara 2021, p.384

[27] SELİMOĞLU, p.384

[28] referring to p.1127, Kocaağa, p.149, “..The penal clause determined in the 11th article of the contract is the elective penalty that is expressed in Article 158/1 of the Law of Obligations No. 818; Since it is concluded that the performance of the contract can be demanded together with the penal clause, by writing the statement of the compensation of the damages incurred due to this reason in the contract, without prejudice to the employer, the plaintiff business owner may also demand the optional penalty together with the compensation price due to incomplete and defective performance.”

[29] SELİMOĞLU, p.384

[30] ŞAHİN Turan, Eser Sözleşmesinde Yüklenicinin Eseri Teslim Borcunu İfade Temerrüdü, Seçkin Yayınevi, Ankara 2012, p.1125

[31] Duman, p.708

[32] Duman, p.708

[33] Duman, p. 708

[34] DUMAN, referring to p.717, 15th Law Department of the Court of Cassation09.02.1989, 3419/485

[35] SELİMOĞLU, p.405

[36] SELİMOĞLU, p.409

[37] KIRMIZI, p.1134

[38] KIRMIZI, referring to p.1134 Tekinay/Akman/Burcuoğlu/Altop, p.353

[39] DUMAN, p.734

[40] DUMAN, s.734

[41] DUMAN, s.734

[42] DUMAN, s.734

[43] DUMAN, s.734

[44] DUMAN, referring to p.732, 15th Law Department of the Court of Cassation. 13.03.1996, 6740/1323 : “As a rule, if the damage is less than the penalty, the penalty and the damage may not be claimed together, but the portion of the damage exceeding the penalty, which is more than the amount of the penalty, may be demanded. In that case, the plaintiff landlord may claim the damage exceeding the amount of the penalty, that is, the damage exceeding the penalty.

[45] KIRMIZI, with reference to p.1146, Dirican p.127

[46] KIRMIZI, referring to p.1150, Von Tuhr p.772

Serkan Kolay
Partner | [email protected]