Introduction
Under Turkish law, work contracts are regulated under Articles 470-486 of the Turkish Code of Obligations ("TCO"). Pursuant to Article 470 of the TCO, a work contract is a contract where the contractor undertakes to create a work and the owner undertakes to pay a price in return. In contracts of work, the contractor is the party who undertakes to create a work, and the owner is the party who is obliged to pay a certain price in return for this performance of the contractor.1 Within the scope of this article, the contractor's obligation of delivering the work and the consequences of breach of the obligation of delivering the work will be analyzed.
I. Contractor's Obligation to Deliver the Work
The obligations of the contractor are the obligation to create the work, the obligation of delivering the work, the obligation to transfer the ownership of the work and the obligation to ensure that the work is free from defects. Although not explicitly regulated under the TCO, it is accepted that the contractor's obligation of delivering the work is one of the primary obligations of the contract of work.2
It is necessary to explain what is understood by the expression "delivery of the work". In the decision of the 15th Civil Chamber of the Court of Cassation numbered E. 2017/526, K. 2017/1199; delivery in the contract of work is defined as the contractor's transfer of the completed work to the actual possession of the owner with the intention to fulfill the contract. In order for delivery to take place, possession must pass to the owner.3 If there is a work that does not have a material existence, then a different evaluation should be made. In this case, if the work that does not have a material existence exists in an item that has a material existence, then the delivery of this item should be sought.4 However, if there is a situation where the work subject to the contract can be counted among activities such as theater, concert, etc., in this case, the work should be deemed to have been delivered when that work is put on stage.5
It will also be necessary to make an assessment regarding the proof of the delivery of the work. The contractor must prove that the work has been delivered.6 The decision of the 15th Civil Chamber of the Court of Cassation numbered E. 2020/1047, K. 2020/2622 is in this direction.
The place of delivery should be determined according to the principles set forth in Article 89 of the TCO.7 Pursuant to Article 89 of the TCO, the place of performance of the obligation is determined according to the express or implied will of the parties. Pursuant to the same article, unless otherwise agreed by the parties, money obligations must be performed at the place of residence of the creditor at the time of payment; part obligations must be performed at the place where the subject matter of the obligation is located at the time of the conclusion of the contract; and all other obligations must be performed at the place of residence of the debtor at the time of their birth. The time of performance should be determined according to the express or implied will of the parties.8
Another issue closely related to the contractor's obligation to deliver the work is the contractor's obligation to transfer ownership. If the property in question is an immovable property, the rules regarding immovable property should be applied. For this reason, in terms of immovable property, in addition to the transfer of possession to the owner, it is also necessary to register in the land registry in favor of the owner. This is because, in order for the rights on immovable property to be reflected externally, the right in question must be visible in the land registry.9
II. Breach of the Contractor's Obligation of Delivering the Work
As stated above, the obligation of delivering the work is one of the contractor's primary obligations. In the part of the TCO that includes the provisions on the contract of work, there are detailed provisions regarding the defective work.10 However, there is no provision in the relevant section regarding the contractor's failure to fulfill its obligation to deliver the work. Therefore, in the event that the contractor violates the obligation to deliver the work, the general provisions of the TCO should be applied. Therefore, in such a case, the debtor default provisions regulated under Articles 117-126 of the TCO shall be applicable.
Since contracts of work are, as a rule, mutually obligatory contracts, the provisions of the TCO on mutually obligatory contracts should be referred to. In cases of default of the debtor in mutual obligation contracts, the creditor is provided with certain additional opportunities.11 Pursuant to Article 123 of the TCO, in contracts imposing mutual obligations, if one of the parties defaults, the other party may grant the creditor an appropriate period of time for the performance of the obligation or request the judge to grant an appropriate period of time.12 Pursuant to Article 125 of the TCO, if the defaulting debtor fails to fulfill the obligation within the given time period or if there is a situation that does not require the granting of a time period, the creditor is always entitled to demand the performance of the debt and interest for delay due to delay. The creditor may also demand the positive damages arising from the non-performance of the obligation by notifying that he waives his right to demand the performance of the obligation and delay compensation, or he may demand the negative damages by rescinding of the contract.
Conclusion
Works contracts are one of the types of contracts that can be frequently encountered in practice, and some provisions specific to this type of contract are stipulated in the TCO. Within the scope of the contract of work, one of the main obligations of the contractor is the obligation of delivering the work. In this article, the contractor's obligation of delivering the work and the consequences of breach of the obligation of delivering the work are analyzed. In this article, firstly, the contractor's obligation of delivering the work is analyzed and then the consequences of the breach of the contractor's obligation to deliver the work are analyzed.
Footnotes
1. Gökhan Sönmez, Eser Sözleşmesinde Eksik İşin (Eksik İfa) Hüküm ve Sonuçları, Ankara, Ankara Üniversitesi Sosyal Bilimler Enstitüsü Yüksek Lisans Tezi, 2022, s. 15.
2. A.e., s. 15.
3. Öz Seçer, "İnşaat Sözleşmesinde Ayıbın İş Sahibinden Kaynaklanması", Galatasaray Üniversitesi Hukuk Fakültesi Dergisi, 2000, s. 145.
4. Zarife Şenocak, Eser Sözleşmesinde Ayıbın Giderilmesini İsteme Hakkı, Ankara, Turhan Kitabevi, 2002, s. 82.
5. A.e., s. 27.
6. Serkan Ayan, İnşaat Sözleşmesinde Yüklenicinin Temerrüdü, Ankara, Seçkin Yayıncılık, 2008, s. 81.
7. Fikret Eren, Borçlar Hukuku Özel Hükümler, Ankara, Yetkin Yayınları, 2022, s. 634.
8. A.e., s. 634.
9.Sefer Ertaş, Eşya Hukuku, İzmir, Barış Yayınları, 2021, s. 85.
10. Eren, a.g.e., s. 645-658.
11. M. Kemal Oğuzman, Turgut Öz, Borçlar Hukuku Genel Hükümler Cilt I, İstanbul, Vedat Kitapçılık, 2016, s. 504.
12. Situations that does not require granting of a time period according to Article 124 of the TCO are reserved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.