Republic of Turkey YARGITAY 15th Law Office Principle: 2019/ 2487 Decision: 2020 / 654 Decision Date: 19.02.2020
SUMMARY: According to the scope of the file, it is seen that there is no conflict regarding the payment of the USD down payment, the final payment was made by the plaintiff on the date of …. In order to be able to demand it, he must first have fulfilled his own performance, pursuant to article … of the TCO No. .. In the concrete case, as it is understood from the expert report that the plaintiff did not pay the amount determined from the work price that was required to be paid on the delivery date as per the contract, at the latest within the time agreed in the contract, the court should reject the plaintiff’s request regarding the penal clause whose conditions were not met, but the decision to partially accept it was not correct and had to be reversed.
(492 S. K. Art. 42)
The defendant’s attorney requested a hearing on appeal of the decision rendered by the Regional Court of Appeals Legal Chamber, whose date and number is written above, and the hearing request was accepted and the plaintiff’s attorney, Lawyer … and the defendant’s attorney, … came to the hearing held on 11.02.2020. After it was understood that the appeal petition was submitted in due time and the lawyers of the parties present were heard, due to the lack of time, the case was left to be examined and resolved for another day. This time, after the papers in the file were read, the necessity of the job was discussed and thought:
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lawsuit, work
The defendant applied to the legal remedy of appeal against the decision of the first instance court regarding the partial acceptance of the case, and the decision on the rejection of the appeal application of the authorized and authorized Istanbul Regional Court of Justice was appealed by the defendant. dated 13.10.2014
According to the contract, the defendant stated that he did not have to deliver 3000 tents, which he undertook to manufacture, on 06.11.2014 at the latest.
requested the collection of 170,000.00 USD from the defendant over the amount of daily penalty agreed in the contract.
He requested that the case be dismissed by stating that he did not make payment under the conditions agreed in the contract. The court of first instance stated that the defendant party was 34 days late in delivery, the plaintiff, while receiving the goods of each party, reserved all his rights arising from the delay in delivery by making reservations on the delivery note, and the calculated penal clause amount was 170,000,00 USD. It was decided to accept the case over 42,500.00 USD on the grounds that, as a rule, it is not possible to reduce the penal clause debt of the debtor, who is a merchant, but in cases where a high penal clause is determined that may cause his economic destruction, it is accepted by the Supreme Court to make exceptions. Upon the defendant’s appeal against this decision, the Regional Court of Justice decided to reject the defendant’s appeal on the merits.
According to the contract, the defendant contractor undertook the construction of 3,000 tents at a price of 355 USD/unit, that they must be delivered on 06.11.2014 at the latest, and that after the payment of 85% of the total amount of each lot of goods to be prepared, 150,000,00 USD is paid in advance according to article 5. It is understood that the installation will be accepted. According to the expert report, there is no dispute about the down payment of 150,000.00 USD according to the scope of the file.
It is seen that the payments were not completed on 06.11.2014, which was determined as the end date in the contract, and the last payment was made by the plaintiff on 31.12.2014.
In the contract, in order for the employer to ask the contractor to fulfill his obligation, he must first fulfill his own performance, in accordance with Article 97 of the TCO No. 6097. In the instant case, the plaintiff
at the latest within the time agreed in the contract.
As it is understood from the expert report that he did not pay the agreed amount out of the work price he had to pay on the delivery date as per the contract, the court decided to reject the claimant’s request regarding the penal clause whose conditions were not met, but it was not correct to partially accept it and had to be reversed.
CONCLUSION: Due to the reasons explained above, the decision subject to appeal was quashed for the benefit of the defendant in accordance with Article 371 of the HMK, the attorney’s fee of 2.540.00 TL was collected from the plaintiff and given to the defendant who was represented by the attorney at the hearing at the Court of Cassation. Since the 218.50 TL application fee, which is required to be taken pursuant to Article 42/2-d of the Law, is deducted, the return of the appeal fee, if any, to the appellant, and the rejection of the application on the merits.It was unanimously decided on 19.02.2020 that the decision of the Regional Court of Justice regarding the rejection of the application on the merits be repealed and that the file be sent to the court of first instance and a copy of the decision to the Regional Court of Justice to be re-decided in line with the decision of reversal.
