ABSTRACT
Contracts are transactions that are based on bilateral declaration of intention of the parties and are made with the purpose of realizing a legal consequence1. If both contracting parties are undertaking liabilities, then bilateral obligatory contracts will be a matter of discussion.
In the event of one party’s unfair termination of bilateral obligatory contract, the right of the other party to demand compensation by applying the rights arising out of the default provisions2 of Turkish Code of Obligations (“TCO”) numbered 6098 has also been stated in the decision of Supreme Court Assembly of Civil Chambers dated 12.05.2010, with decision number 2010/14-244 E. and 2010/260 K. In this article, the damage resulting from the unfair termination will be evaluated within the scope of the related provisions3 of TCO regarding consequences of non-performance of obligation.
Since, one of the most significant issues in the practice is the distinction between the negative and positive damage in the event of damages arising from contracts, this article aims to assess the suffered damages arising from unfair termination of a bilateral obligatory contract by one parties and damage items, which can be demanded by parties as compensation, within the scope of negative damage and positive damage notions.
1. CONTRACTUAL LIABILITY AND THE TERMS IN CASE OF NON-PERFORMANCE
Terms for obligor’s liability in the event of non-performance or deficient performance of contractual obligations are regulated under the scope of TCO4. According to TCO, the acts of obligor, which are contrary to his liabilities, shall cause the compensation liability in the below mentioned situations5:
• The obligor shall not perform his obligations at all or perform his obligations improperly.
• The acts of the obligor, which are contrary to his liabilities, should have inflicted damage to the claimant,
• The obligor shall be defective in the non-performance of his obligations.
• There shall be a causal link between the non-performance of obligations and the damage suffered by the claimant.
The decision of the Supreme Court Assembly of Civil Chambers dated 29.09.2010, with decision number 2010/14-386 E. and 2010/427 K., is related to the claimant’s right to claim for indemnity, in the case of nonperformance of the obligor’s obligation of transferring the immovable property to the claimant, which has been arisen from immovable preliminary sales contract. In the abovementioned decision, the Supreme Court has emphasized that it is not required for the validity of the sales contract that the obligor of preliminary sales contract to be the immovable’s registered owner at the time of execution of the preliminary sales contract. Moreover, the preliminary sales contract shall be valid even though the seller is not the owner of the immovable. However, in the lawsuit, which is brought as a result of the breach of preliminary sales contract, it is emphasized that, the defendant was not recognized as the owner of the promised property at the time of bringing of the lawsuit. Hence, because of the impossibility of the specific performance the obligor shall, as a rule, be deemed liable, due to the nonperformance of obligations and accepted as defective in the case of non-performance of obligation. In these circumstances, according to the aforesaid precedent, promise obligee (claimant) will be able to demand the compensation instead of specific performance6.
Consequently, it is understood that, the obligee has the right to demand indemnity, in case the obligation cannot be performed, due to obligor’s defect despite the existence of a valid contract.
In another decision of the Supreme Court Assembly of Civil Chambers dated 14.01.2015 with decision number 2014/3-8 E. and 2015/10 K., it is stated that, the party who causes non-performance of the obligation with his own default is obliged to compensate all damages arising from non-performance of such an obligation. It is mentioned in this decision that, “In a contract made properly, the parties are obliged to act and perform their obligations according to the contract, avoid all kind of acts which render the performance of obligations impossible.” and by referring to TCO’s related provision7 it is emphasizes that in the case of a non-performance or improper performance of the obligation, the obligor will be liable to indemnify the obligee’s damage arising out of this breach, if he cannot prove his impeccability.
In conclusion, it is stated that the obligor will be considered to be in breach of the contract and be obliged to compensate all loss and damage of the obligee, according to TCO’s related provision in the event of impossibility of the performance, due to the obligor’s own neglect8.
2. THE DAMAGE CONCEPT IN TURKISH LAW
In the doctrine and practices of Turkish Law, the damage concept rises in two different terms, as “damage in broad terms” and “damage in strict terms”. Damage in strict terms refers to the material damage; which is also referred to as assets damage. Damage in broad terms expresses both damages in assets and immaterial damages9. While the moral damage will be mentioned below briefly, the material damage will be elaborated.
2.1 Moral Damage
The moral damage is the pain, distress, mental sadness or mental depression suffered by a person due to an unjust offence violating personal rights10. As inferred from court decisions11 and preponderant opinions in doctrine, the person who faces unfair offence may be either a real person or a legal person. Compensation of the moral damage will be provided by payment of a certain sum of money which will be paid by the violating person and will be appraised by the judge in accordance with ordinary life. Hereby, the main issue is not to fulfill the economic loss and damage, but to satisfy mental distress of the person violated with money.
2.2 Material Damage
The material damage refers to decrease in someone’s assets out of his own will. What constitutes a vital point is the existing asset, a decrease in the existing asset and that such decrease occurs out of the person’s will12. Moreover, a pecuniary decrease is required in order to mention of a decrease in asset.
An asset is composed of actives and passives of a person. Actives indicate person’s rights while passives involve the liabilities of a person13. While the decrease in asset may occur as decrease of actives or increase of passives, it may be also considered as a devoiding of a possible increase in the asset14.
In case the decrease of asset arises from assignment, consuming, demolition or as a result of intentional behavior of sufferer, it cannot be considered as damage15.
In the event that a decrease in the asset occurs partly out of sufferer’s intention and partly as a result of sufferer’s own intention, while decrease arising as a result of the sufferer’s intention is not considered as damage, the decrease in asset without the sufferer’s intention will constitute damage16.
The damage concept in doctrine is subject to various classifications as an actual damage-loss of profit, concrete-discrete, direct-indirect-reflection, positive and negative damage. In terms of contractual obligations, the most significant classification is the positive damage and negative damage distinction. Positive and negative damage notions pertain to contractual obligations; therefore they are not a matter of subject for the damages arising from tort17.
2.2.1 The Distinction of Positive Damage and Negative Damage
In the event that the parties do not duly perform their contractual obligations based on their bilateral declaration of intention, the parties may suffer damage to a certain extent. While this damage may occur as loss of profits to be gained in case of the performance of contractual obligations, it may also occur as a damage arising from an act completely contrary to contractual obligations in some circumstances.
The damages of these kinds are referred to as the positive damage and negative damage. Where the liability arising out of contracts is under consideration, it is worthwhile to mention the distinction between the positive damage and negative damage.
Initially, should the need arise for examination of this classification in terms of terminology the positive damage shall in that case denote affirmative damage and the negative damage, adverse damage. This classification is made by German lawyer Jhering, based on the fact that positive damage requires an affirmative existence In other words, a valid contract is required but also the consistency of a negative effect of a an adverse situation, which means that the contract is never made or it is void18.
According to the doctrine the most significant difference of these two notions resides in terms of the protected interest. While the positive damage protects the obligee’s rightful expectation of proper performance and thus the expectation of gaining income in this respect, the negative damage on the other hand protects the reliance in the properly established contract of the obligee or the reliance of obligee concerning the performance of obligations even if the contract is void. Recovery of the expenses made and opportunities missed due to the reliance of the establishment of contract can be provided by this way19.
The difference in protected interests causes difference in the items to be taken into consideration, when determining the positive and negative damage20. The items constituting positive damage and negative damage are explained below in detail.
Furthermore, another difference between negative damage and positive damage is that their legal reasons are different. While the positive damage results from non-performance of obligations arising from a valid contract, the negative damage occurs in the presence void contract, contrary to the positive damage21.
Under these circumstances, it is conceived that positive damage and negative damage cannot be demanded altogether22. Likewise, while the compensation of positive damage provides the benefit of performance in a valid contract, the compensation of negative damage provides the opportunity to recover the expenses, which would have not incurred if the contract has not been executed at all and provides recovery for the missed opportunities23. Therefore, considering these two cases cannot coexist, it should be acknowledged that the positive damage and negative damages cannot be borne and demanded together.
In the decision of 13th Civil Chamber of Supreme Court dated 25.05.1993, with decision number 1993/2905 E. and 1993/4544 K., it is emphasized that, while the rightful termination of the claimant is accepted, it is not possible for the claimant to demand the compensation of positive damage arising out of the non-performance of obligations by returning to the contract that is no longer effective and therefore the only damage that can be requested to be compensated is the negative damage.
2.2.2 Negative Damage
The negative damage refers to the forced decrease in asset as a result of voidness of a contract while relying on the affectivity of contract. In order to hold the parties liable for the negative damage, there should be a violation of the rightful reliance and such violation should occur due to the fault of the person causing the damage24.
In this case, the items which should be assessed within the scope of negative damage are as follows25:
• The expenses regarding the execution of the contract: These are expenses such as mail cost, fees, and notary fee.
• The expenses made for the performance of contractual obligations or for the acceptance of counter performance: The expenses made by the parties of contract for the performance of contractual obligations such as transportation costs, insurance costs and etc., and the expenses made to receive the performance of other party’s contractual obligations such as protection costs and etc. are considered within the scope of these expenses.
• The damages arising during the performance of contract: In some instances, counter party’s nonperformance may cause damages for the party performing its obligations. These kinds of damages shall also be calculated in determination of the negative damage. For instance, in a contract of carriage, in the event that the carrier perishes the goods by avoiding his liability, the value of perished goods will be evaluated within this context.
• The damage suffered from missing another contract opportunity by relying upon the validity of the contract: In the case that the party who intends to perform the contract needs to make another contract equivalent to the same contract and in the case that the second contract’s costs are excessive in comparison to the first contract’s costs, the extra costs are assessed within the scope of negative damage. For instance after the termination of a sales contract where a unit price of 100 TL has been agreed upon, in case the same party is obliged to make a new sales contract with a unit price of 120 TL, the excessive cost paid over the unit price of 20 TL shall be considered as negative damage.
• The damage suffered from non-performance of another contract: In the event that the contract- ing party has the intention to use the performance expected from the first contract in another contract relation, the suffered damage arising out of non-performance of the second contract shall be evaluated within the scope of negative damage. For instance, in case where a merchant buys a product from the manufacturer with the purpose of selling these, the penalty amount arising out of the contract between the merchant and its buyer, due to the termination of the contract by the producer, shall be taken into consideration as negative damage items.
• The lawsuit expenses: In accordance with the ruling cases of Supreme Court, the lawsuit expenses arising where a lawsuit is brought due to the termination of contract should also be calculated as an item of negative damage26.
2.2.3 Positive Damage
Positive damage expresses the damage where the obligee’s interest in the performance of the obligation that cannot be satisfied at all or duly. Herein, the recovery of the damage which would not have been suffered should the performance had been on time and duly is requested. In case of a positive damage, there is a right of the obligee to demand for recovery of the damages as a result of non-performance of obligation due to obligators default despite the existence of a valid contract. Positive damage relates to the damage, whereby the obligor recovers the situation of the obligee in which he would have been if the contractual obligations were performed accordingly properly27. In other words, the damages aims to restore the situation before the contractual breach occurred. Additionally, it is also stated in the doctrine that positive damage aims to provide for the contractual obligations, which are not performed at all or duly, to be considered as performed by way of compensation (to render the unrealized to be materialized)28.
This issue was emphasized in the decision of the Supreme Court as follows: “The positive damage shall occur in the case where the obligee demands the compensation of damage by withdrawing the performance; the contract shall not be removed, nevertheless, the obligee’s right to demand compensation of positive damage shall replace the obligee’s right to demand performance of contractual obligation. It should not be disregarded that the matter of discussion herein is the damage arising from non-performance of the contract but not from the termination of contract.”29
In the decision of the Supreme Court General Assembly of Civil Chambers dated 14.01.2105 with decision number 2014/3-8 E. and 2015/10 K., the positive damage is defined as the suffered damage by the obligee in case where the performance of a contract that has initially been established validly, cannot be made due to the default of obligor. In the mentioned ruling case, The Supreme Court General Assembly of Civil Chambers emphasizes that it has established a precedent and states that, even though the contract is validly made at the beginning, if the performance of the contract becomes impossible due to reasons occurred after the establishment of a valid contract, the obligee is entitled to demand the actual and current positive damage.
Furthermore, it states that the compensation amount should be equal to the actual damage of obligee and held that; “the amount of the compensation obligation of the person causing damage shall be limited to the extent of the increase occurred in the asset of the sufferer due to the act causing damage”. In other words, it aims to establish the same condition with compensation and provide the same condition in which the sufferer’s asset would have been if the act resulting damage had not occurred.
Consequently, it is conceived that while the positive damage is considered as an increase in the asset of the obligee due to the non-performance of contractual obligation, the loss of profit which refers to the prevention of increasing in the obligee’s asset is also considered within the scope of positive damage items30.
The loss of profit (lost profit), is the expected increase in the asset, which cannot occur due to the breach of contract. Generally, it is demanded from the party who terminates the contract with fault. Primarily, in terms of loss of profit, there is no difference between the assets of the party who lacks profit, before and after the defective termination. Herein, the party who faces the loss of profit is destitute of the increase in his asset that would take place in the future due to defective termination of the contract. In these circumstances, the loss of profit shall be clearly considered within the scope of positive damage31.
For instance, in a contract where the merchant buys goods with the intention of selling to another merchant, in case of non-delivery of the goods, the buyer can demand the value of goods along with the loss of profit expected from the sale of goods to an another party as well as the difference that occurs in case the merchant is obliged to buy the same goods from another seller.
In conclusion, the damage items that falls under the scope of the positive damage notion can be summarized as follows32;
• The damages arising out of the breach of contract and the damages that would not occur should the obligation was performed properly, such as serving of notice, granting an extension, the additional carriage expenses.
• The expenses made by the obligee in order to accept the performance and/or to protect his own performance such as warehouse expenses or insurance premiums, which would emerge even if the contract is not violated, nevertheless these expenses are recovered due to the breach of contract.
3. THE COMPENSATION OF POSITIVE DAMAGES AND NEGATIVE DAMAGES IN CASE OF UNFAIR TERMINATION OF CONTRACT
The conditions required for positive and negative damages to occur are completely different. While the elements to be compensated in negative damage originates from the contract, which cannot be executed or is invalid, in positive damage, however, the damage must originate from non-performance of obligations, not from the termination of the contract33.
The unfair termination of contract indicates that the party who terminates the contract does not base on a valid reason in order to terminate or leads to termination of the contract with his default.
As it can be understood from our explanations above, the compensation of positive damage cannot be demanded due to a contract of which the termination is accepted as valid. It is clear that the party who terminates the contract rightfully can demand the compensation of the negative damages34. Herein, the subject that should be discussed is the termination of contract without a valid reason.
According to court decisions, the party who terminates the contract unfairly has a default in the termination of contract cannot demand the compensation of positive damages35. However, where the contract is terminated unfairly by one party and the other party does not renege on the contract, the contract may sustain its validity thus the compensation of positive damage can be demanded from the party who unfairly terminates the contract36.
The party who terminates the contract rightfully cannot demand compensation for the positive damage by returning to the contract, but can demand compensation for the negative damages37. The decision of Supreme Court 13th Civil Chambers dated 25.05.1993 with decision number 1993/2905 E. and 1993/4544 K. on this subject emphasizes that the negative damage can be demanded from a null and void contract by stating as follows; “Due to the claimant Administration’s rightful termination of contract, the claimant cannot demand the compensation of the positive damage arising out of the non-performance of contractual obligation by returning the null and void contract; the damage which can be demanded is evaluated in accordance with the sufficient opportunities missed by relying on the performance of the contract; therefore if the claimant has an opportunity (missed opportunity) to buy the goods from another person instead of the defendant party, the price difference (negative damage) between the supposed amount to be paid to that party and the amount which is obliged to pay for the same goods by reason of the invalidity of contract, can be demanded by the claimant.”
4. EVALUATION WITHIN THE SCOPE OF DEFAULT PROVISIONS
The default of obligor in the bilateral obligatory contracts is regulated under the related provision38 of TCO. As indicated in TCO, there is a distinction between the instantaneous performance and continuous performance obligation relation with regard to the default of obligor in the bilateral obligatory contracts.
According to related provision of TCO39, the obligee is entitled to use his rights enumerated under the TCO’s related provision, in case of default of the obligor in terms of instantaneous obligation relations, if the obligor does not perform the contractual relation even though the obligee grants proper time to the obligor for the fulfillment of the obligation, the obligee is entitled to use his rights stated under the TCO’s related provision40. These rights are as follows:
• To demand damages for delay in performance due to specific performance of obligation and delayed performance,
• To demand the compensation of suffered positive damage by withdrawing the performance,
• To demand the compensation of suffered negative damage by reneging on the contract.
Additionally, there is a specific regulation for contracts with a wider scope, is regulated under the particular provision of TCO41. According to this provision, the obligee is entitled to use the optional rights, if there is a default of obligor in a continuous performance contract which the obligor began to perform. These rights are enumerated as below:
• To demand the specific performance and damages for delay in performance.
• To demand the recovery of the damage suffered from the termination before due date by terminating the contract anticipatorily
Nonetheless, according to the related provision of TCO42, the obligee shall not be able to demand the compensation of positive damage by withdrawing the specific performance as in the instantaneous performance contracts43.
As mentioned above, it is indicated in the decisions of the Supreme Court that, if a party does not renege on a contract, although the contract is unfairly terminated by other party, the contract shall remain in force because of a termination that is void. In this case, the party who terminates the contract with his own defect, will enter into default, the obligee will be entitled to demand his rights arising from the default.
As it is stated in the introduction, the decision of Supreme Court Assembly of Civil Chambers dated 12.05.2010, with the decision number 2010/14-244 E. and 2010/260 K. emphasizes that in the event of unfair termination of the contract by one party, the default provisions will be applied. In the mentioned case, the party subject to unfair termination may demand the compensation of positive damage provided that it has not reneged on the contract and has not found defective for the termination and the other party has terminated the contract defectively and has default.
In another decision of the Supreme Court, the party in default for the obligation of making the payment regarding the preliminary sales contract for a real estate, has terminated the contract after a while by giving the economic crisis as an excuse. Notwithstanding termination is a unilateral transaction, in the event that the reason for termination is unfair, the party who faces the termination in the bilateral obligatory contract will be entitled to use optional rights which can be used in the event of the default of the obligor, arising from the contrary to obligation. In the mentioned instance, the merchant is not seen as right to terminate the contract because of the economic crisis whilst the party in default, as a reason of its own act contrary to the obligation, shall be obliged to compensate the suffered positive damage of the other party due to the fact that it refuses the termination of contract44.
5. CONCLUSION
Hereby, with this article, we focused on as to whether or not the parties are entitled to demand the compensation of positive damage and negative damage in case of unfair termination of bilateral obligatory contract. As a principle, for the compensation of contractual obligation, it is required that the obligor causes damage with his default. In case of termination of contracts, the party who invalidates the contract by terminating is no longer entitled to demand the compensation of positive damage arising out of the non-performance of obligation with regard to such contract. The positive damage is a kind of compensation, which can be claimed based on an existing contract.
Under these circumstances, claimable loss items are considered as the opportunities missed due to the reliance on an existing contract. If the obligee has had an opportunity to buy the goods from another person instead of the obligor and the missed such opportunity by relying on the contract which is made with the obligor, the obligee is entitled to demand the difference between the missed opportunity and the payment made to buy the same product due to the contract’s becoming invalid. In other words, the obligee is entitled to demand the negative damage.
The party who does not perform his obligation by terminating the contract without any rightful reason will be in default and the obligee will be able to use his rights arising out of such default against the party who terminated the contract unfairly.
Conclusively, as explained above, the negative damage results from contracts that are invalid or not established, while the positive damage, and emerges in the event the performance cannot be satisfied at all or duly, although there is a valid contract. Therefore, we conform to the dominant view in the literature, that these two kinds of damages cannot be demanded together as they cannot appear at the same time.
BIBLIOGRAPHY
Ahmet Kılıçoğlu, Tüzel Kişiler Manevi Tazminat İsteyebilir mi? DHFD Issue. 1, 292- 294.
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FOOTNOTE
1 Turkish Code of Obligations, numbered 6098, article 1.
2 TCO, article 123 ff.
3 TCO, article 112 ff.
4 TCO, article 112.
5 Reisoğlu, Türk Borçlar Hukuku Genel Hükümler, 352.
6 Code of Obligations, numbered 818, article 96, TCO, article 112 ff.
7 TCO, article 112.
8 TCO, article 112.
9 Eren, Borçlar Hukuku Genel Hükümler, 521.
10 Reisoğlu, Türk Borçlar Hukuku Genel Hükümler, 228.
11 Supreme Court Assembly of Civil Chambers dated 1.2.2012, with decision number 2011/4-687 E. and 2012/26 K.
12 Büyüksağiş, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı, 46-52.
13 Büyüksağiş, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı, 46.
14 Büyüksağiş, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı, 46.
15 Büyüksağiş, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı, 51.
16 Büyüksağiş, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı, 52.
17 Eren, Borçlar Hukuku Genel Hükümler, 526-536, Oğuzman ve Öz, Borçlar Hukuku Genel Hükümler, 342.
18 Ergüne, Olumsuz Zarar, 55.
19 Ergüne, Olumsuz Zarar, 57.
20 Ergüne, Olumsuz Zarar, 58.
21 Ergüne, Olumsuz Zarar, 61.
22 Counter decision: 11th Civil Chamber of Supreme Court dated 23.02.2010, with decision number 2008/6130 E. and 2010/2066 K.
23 Ergüne, Olumsuz Zarar, 70.
24 Ergüne, Olumsuz Zarar, 40.
25 Tandoğan, Türk Mesuliyet Hukuku, 427-428.
26 Supreme Court Assembly of Civil Chambers dated 05.07.2006, with decision number 2006/13- 499 E. and 2006/507 K.
27 Ergüne, Olumsuz Zarar, 57.
28 Ergüne, Olumsuz Zarar, 57.
29 Supreme Court Assembly of Civil Chambers dated 17.01.1990, with decision number 1989/13-392 E. and 1990/1 K.
30 Supreme Court Assembly of Civil Chambers dated 29.09.2010, with decision number 2010/14- 386 E. and 2010/427 K.
31 Supreme Court Assembly of Civil Chambers dated 12.05.2010, with decision number 2010/14-244 E. and 2010/260 K.
32 Ergüne, Olumsuz Zarar, 59-60.
33 Supreme Court Assembly of Civil Chambers dated 29.09.2010, with decision number 2010/14- 386 E. and 2010/427 K.
34 13th Civil Chamber of Supreme Court dated 25.05.1993, with decision number 1993/2905 E. and 1993/4544 K.
35 15th Civil Chamber of Supreme Court dated 17.11.2005, with decision number 2005/696 E. and 2005/6142 K.
36 Supreme Court Assembly of Civil Chambers dated 12.05.2010, with decision number 2010/14-244 E. and 2010/260 K.
37 In contrary: Serozan, Sözleşmeden Dönme, 594 ff.
38 TCO, article 123 ff.
39 TCO, article 123.
40 TCO, article 125.
41 TCO, article 126.
42 TCO, article 126.
43 Şeref Ertaş, Gift to Prof. Dr. Cevdet Yavuz, 317.
44 13th Civil Chamber of Supreme Court dated 14.10.2004, with decision number 2004/4131 E. and 2004/14487 K.
