We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
ALACAKLININ TEMERRÜDÜ ÜZERİNE SÖZLEŞMEDEN DÖNEN BORÇLUNUN TAZMİNAT İSTEMİ.
- Authors
BAYRAM, Aziz Erman
- Abstract
In case of default of creditor, the legal ways to be discharged from the debt are regulated between Articles 107 and 110 of the Turkish Code of Obligations (TCO). Upon the default of creditor in performance in kind, the debtor can be discharged from her/his debt, in principle, through using the right of deposit and as an exception through the right to sell. If the creditor is in default for the performance of debts not related to objects, the debtor can be discharged from her/his debt through withdrawal from the contracts, which require instantaneous performance; and by terminating the contract, which requires continuous performance. In Article 110 of TCO, which regulates the debtor's right to withdrawal from the contract upon the default of creditor, reference has been made to the provisions regarding withdrawal from the contract in the debtor's default. Due to the aforementioned reference, it is controversial in the doctrine whether the debtor, who has withdrawn from the contract within the scope of Article 110 of TCO, can demand compensation from the faulty creditor. According to first opinion in the doctrine the debtor's negative damage, according to second the debtor's positive damage, and according to third opinion the debtor's negative or positive damage can be demanded from the faulty creditor to compensate. According to last opinion, which is defended in the doctrine, and with which we also agree, the debtor withdrawn from the contract upon the default of creditor cannot demand any compensation from the creditor for any negative or positive damages, because the reference made in Article 110 of TCO is related only to the formal requirements of the exercise of the right to withdraw from the contract. The legislator deliberately kept silent about the debtor's compensation claim. In addition, the interests of the debtor, who withdrawn from the contract upon the default of creditor, are already adequately protected. Therefore, compensation cannot be demanded from the creditor who violates only a duty through default of creditor.
- Subjects
CONTRACTS; DEBTOR &; creditor; DEFAULT (Finance); DEBT; LEGISLATORS
- Publication
Banking & Commercial Law Journal / Banka ve Ticaret Hukuk Dergisi, 2021, Vol 37, Issue 4, p147
- ISSN
1300-1396
- Publication type
Article