CONSEQUENCES OF DEFAULT-Distinction of Positive and Negative Damages
Articles 117 to 126 of the TBK regulate the terms, provisions and consequences of debtor default in general. The consequences of the debtor’s default in contracts that impose mutual debts are regulated in Articles 123 and the following of the TBK. Accordingly, in the event of a debtor’s default regarding such contracts, the creditor has some optional rights.
The terms of the creditor’s exercise of these optional rights and the concepts of positive and negative damage are explained, examples of these loss items are given and their place in practice is shown.
Consequences of Borrower’s Default in Contracts Loading Collateral
The consequences arising from the default of the debtor in the contracts that impose mutual debts are regulated in Articles 125 and 126 of the TBK.
According to this; If the debtor defaults, the creditor’s optional rights are in question. These optional rights can be listed as follows:
First of all, the creditor may demand a late fee with the exact performance of the debt. This optional right is not specific to contracts that impose debts on both parties, it is a general consequence of debtor default.
Another option right of the creditor is to demand compensation for the positive damage he has suffered by waiving the performance of the debt.
Finally, the creditor may demand compensation for the negative damage he has incurred by returning from the contract.
In order to use the other two optional rights other than the same performance of the debt and demanding delay compensation, a suitable time should be given to the debtor or a request should be made from the judge in order to give the debtor a final chance of performance, with the exception of the exceptions listed in TBK article 124. In addition, the fault of the debtor is sought in order to rule on delay compensation or compensation for positive or negative damages. In cases where compensation for positive damage is demanded by giving up performance or compensation for negative damage is demanded by terminating the contract, this situation must be immediately notified to the debtor as soon as the deadlines are over.
Article 126 of the TBK regulates the consequences of default in perpetual contracts. Accordingly, in the case of debtor’s default in perpetual contracts, the performance of which has been started, the creditor should be able to demand performance and delay compensation, as well as request the compensation of the damage suffered due to the premature termination of the contract by terminating the contract.
Exact Performance and Delay Compensation
The right to demand full performance of the debt and delay compensation are among the general consequences of the debtor’s default. For this reason, the creditor can always demand the exact performance of the debt from the defaulting debtor and the compensation for the loss arising from the delay.
The delay compensation subject to the request is regulated in TBK Article 118. In the said article, it is stated that the debtor in default is obliged to compensate the damage suffered by the creditor due to the late performance of the debt, unless he proves that he has no fault in default. It is said that it is presumed that the defaulting debtor is at fault.
Claiming Compensation for Positive Damage by Waiving Performance
According to article 125 of the TBK, the creditor may request the compensation of the damage arising from the non-performance of the debt by immediately notifying that he has waived the right to perform the debt exactly and to demand compensation for delay.
In the event that this optional right is exercised, the contract survives. For this reason, it is accepted that the creditor’s obligation to fulfill his/her performance continues.
The condition that the debtor is at fault in default is also necessary in the compensation of the positive loss incurred. There is also a presumption of fault in this matter.
If the creditor is going to exercise this optional right, he must immediately notify the debtor of this situation. If the creditor does not immediately notify at the end of the given period, he loses his right to choose and the house has to demand compensation for delay with the same performance.
Claiming Compensation for Negative Damage by Reneging from the Contract
In case the debt is not performed within the given grace period, the creditor may withdraw from the contract and demand compensation for the negative damage, provided that the debtor is notified immediately at the end of the period.
Since the cancellation of the contract is retroactive, if one of the parties has previously fulfilled its debt, it must be returned. Although it is debatable whether the extradition is based on the institution of unjust enrichment or the institution of breach of contract, the Supreme Court has adopted the first view.
In order for the right to withdraw from the contract to be exercised, the debtor does not have to be at fault for default. On the other hand, as in the other types of compensation mentioned above, the debtor’s fault is sought in the compensation of negative damages, but the existence of the fault is accepted as presumption.
Distinction between Positive Damage and Negative Damage
The creditor, who does not want to accept the full performance of the debt by the defaulting debtor, will either demand compensation for the positive damage by abandoning the performance or demand compensation for the negative losses incurred by terminating the contract, provided that the said conditions are complied with.
Negative damage is related to the expenses incurred by the creditor relying on the validity of the contract. The value that the creditor’s assets would have received if they had never entered into the contractual relationship in question and the difference in value received after this invalidated contractual relationship constitutes negative damage. The legal benefit protected in compensation for negative damage is the creditor’s trust in the validity of the contract.
All kinds of costs (such as fees and stamp duty payments, travel expenses, notary expenses) related to the establishment of the contractual relationship regarding the negative loss items are also considered as positive losses, as well as the losses arising from the missed more suitable contract opportunities because it is trusted that the said contract is valid. is seen.
Positive damage is the loss suffered by the creditor due to the debtor’s failure to perform the obligation arising from the contract properly or not performing it at all. The difference between the condition of the creditor’s assets due to the fact that the debt is not fulfilled at all or due to the fact that the debt has been fulfilled in the agreed manner and time in the contract, constitutes this loss. Therefore, the legal interest protected in the compensation of positive damage is the creditor’s interest in the performance of the debt.
It is fixed in the Supreme Court decisions that the deprived profit is one of the items of positive loss. What is meant by this is the loss of earnings, usually due to the creditor obtaining the same good or service from another source. In addition, these items include the expenses incurred by the creditor for notarizing the debt, giving a notice and similar reasons because the debt is not performed at all or duly, and the expenses incurred by the creditor in order to establish another contract to replace the unperformed contract.
Conclusion
According to TCO No. 6098, in contracts that impose debts on both parties, the creditor has optional rights in case the debtor defaults. These optional rights are the performance of the debt, which is a general consequence of the default, and demand compensation for delay. While compensation for positive damage aims to protect the creditor’s interest in the performance of the debt in accordance with the contract, compensation for negative damage protects the creditor’s confidence in the validity of the contract.
Consequences of Borrower’s Default