Failure To Perform An Obligation: What Happens Next? – Borç İfa Edilmedi: Şimdi Ne Olacak?

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Bu yazımızda “Borçların ifa edilmemesi halinde hukuki sonuçlar nelerdir?” sorusuna cevap aradık. Türk Borçlar Kanunu’nda yer alan imkânsızlık, temerrüt ve sözleşmeye aykırılık hükümlerinin İngilizce hukuk terminolojisine uygun çevirisini sizler için kendi gözetimimizde AI desteği ile hazırladık. Akademik çalışmalar, uluslararası hukuk karşılaştırmaları ve sözleşme pratiği için güvenilir bir kaynak niteliğinde olması açısından görüş, katkı ve eleştirilerinizi bekliyoruz.

Keyifli çalışmalar dileriz …

FAILURE TO PERFORM AN OBLIGATION – What Happens Next?

1. IMPOSSIBILITY OF PERFORMANCE

1.1 IMPOSSIBILITY WITHOUT FAULT

I. General Rule

Article 136 – If the performance of an obligation becomes impossible due to reasons for which the debtor cannot be held responsible, the obligation shall be extinguished.

In contracts imposing reciprocal obligations, the debtor who is released from his obligation due to impossibility shall be obliged to return the performance he has already received from the other party pursuant to the provisions on unjust enrichment, and shall lose the right to demand performance which has not yet been rendered to him. Cases where the risk of loss has, by law or contract, been allocated to the creditor prior to performance, are excluded from this provision.

If the debtor fails to notify the creditor without undue delay of the impossibility of performance, or fails to take the necessary measures to prevent further damages, he shall be liable for any losses arising therefrom.

II. Partial Impossibility of Performance

Article 137 – If the performance of an obligation becomes partially impossible due to reasons for which the debtor cannot be held responsible, the debtor shall be released only from the impossible part of the obligation. However, if it is evident that the parties would not have entered into such a contract had they foreseen the partial impossibility, the entire obligation shall be terminated.

In contracts imposing reciprocal obligations, if one party’s obligation becomes partially impossible and the creditor agrees to partial performance, the counter-performance shall also be rendered proportionally. If the creditor does not agree to such partial performance, or if the counter-performance is indivisible in nature, the provisions on total impossibility shall apply.

III. Hardship (Excessive Difficulty of Performance)

Article 138 – If an extraordinary situation arises, which was not foreseen by the parties at the time of the conclusion of the contract and could not reasonably have been foreseen, and which is not attributable to the debtor, and such situation fundamentally alters the circumstances existing at the time of the contract to the detriment of the debtor to such an extent that performance can no longer be expected from him in accordance with the principle of good faith, the debtor shall be entitled to request the adaptation of the contract to the new circumstances from the court. If such adaptation is not possible, the debtor shall have the right to withdraw from the contract.

In contracts of continuous performance, the debtor shall, as a rule, exercise the right of termination instead of withdrawal.

The provisions of this Article shall also apply to obligations denominated in foreign currency.

1.2 IMPOSSIBILITY WITH FAULT

A. Non-performance of the Obligation

I. Duty of Compensation

1. General Rule
Article 112 – If an obligation is not performed at all or not duly performed, the debtor shall be liable to compensate the creditor for the loss arising therefrom, unless he proves that no fault can be attributed to him.

2. Obligations to Do or Not to Do
Article 113 – If an obligation to do something is not performed by the debtor, the creditor may request authorization to have the performance carried out by himself or by another person at the debtor’s expense, without prejudice to his right to claim any damages.

A debtor who acts in breach of an obligation not to do something shall be liable to compensate for the loss arising from such breach.

The creditor may also request the removal of the unlawful situation or to be authorized, at the debtor’s expense, to remove it himself.

II. Scope of Liability and Duty of Compensation

1. General Rule
Article 114 – The debtor shall generally be liable for all degrees of fault. The scope of liability shall be determined according to the particular nature of the undertaking. If the undertaking does not provide any benefit to the debtor, liability shall be assessed more leniently.

The provisions concerning liability in tort shall apply by analogy to cases of breach of contract.

2. Exemption Agreements
Article 115 – Any advance agreement releasing the debtor from liability for gross negligence or wilful misconduct shall be null and void.

Any advance agreement by which the debtor seeks to exclude liability towards the creditor arising from an obligation under a contract of employment shall also be null and void.

If the undertaking is a service, profession, or art requiring special expertise and may only be carried out with authorization granted by law or competent authorities, any advance agreement excluding liability for slight negligence shall be null and void.

3. Liability for Acts of Auxiliary Persons
Article 116 – Even if the debtor has lawfully entrusted the performance of the obligation or the exercise of a right arising from an obligation to auxiliaries such as family members or employees, he shall be liable to compensate the other party for the damage they cause in the course of performing the undertaking.

Liability for acts of auxiliaries may be excluded in whole or in part by advance agreement.

If the undertaking is a service, profession, or art requiring special expertise and may only be carried out with authorization granted by law or competent authorities, any agreement excluding liability for the acts of auxiliaries shall be null and void.

2. DELAY IN PERFORMANCE (Default)

2.1 GENERAL

B. Debtor’s Default

I. Conditions

Article 117 – The debtor of a due obligation shall be deemed in default upon the creditor’s notice of default.

If the date of performance has been determined jointly by the parties, or if it has been determined by one of the parties through a proper notification based on a contractual reservation of right, the debtor shall be in default upon the expiry of such date. In torts, default shall occur on the date of the wrongful act; in unjust enrichment, on the date of enrichment. However, in cases of unjust enrichment where the enriched party is in good faith, default requires notice.

II. Consequences

1. General Rule

a. Compensation for Delay
Article 118 – A debtor in default shall be liable to compensate the creditor for the loss arising from late performance, unless he proves that he is not at fault for being in default.

b. Liability for Supervening Events
Article 119 – A debtor in default shall also be liable for damages arising from unforeseen events occurring thereafter.

The debtor may be released from such liability if he proves either that he was not at fault in falling into default, or that the unforeseen event would have damaged the subject matter of the obligation even if timely performance had been made.

2. Default Interest

a. General Rule
Article 120 – If the annual default interest rate has not been agreed upon in the contract, the applicable statutory rate in force at the time the interest obligation arises shall apply.

The agreed annual default interest rate may not exceed twice the statutory annual interest rate referred to in the first paragraph.

If a contractual interest rate has been agreed but no default interest rate has been specified, and if the contractual annual interest rate exceeds the statutory annual rate referred to in the first paragraph, the contractual rate shall apply as the default interest rate.

b. Default Interest on Interest, Periodical Payments, and Donations
Article 121 – A debtor in default of paying interest, periodical payments, or a sum of money donated shall be obliged to pay default interest from the date enforcement proceedings are initiated or legal action is brought.

Any agreement to the contrary shall be subject to the provisions on penalty clauses.

Default interest shall not bear further default interest.

3. Additional Damages
Article 122 – If the creditor suffers damages exceeding the default interest, the debtor shall also be liable to compensate such additional damages, unless he proves that he is not at fault.

If the amount of such damages exceeding default interest can be determined in the pending case, upon the creditor’s request, the court shall also rule on the amount of such damages together with the decision on the merits.

2.2 CONTRACTS IMPOSING RECIPROCAL OBLIGATIONS

2.2.1 Extension of Time

4. In Reciprocal Contracts

a. Granting of Additional Time
Article 123 – In contracts imposing reciprocal obligations, if one party is in default, the other party may either grant an additional period for performance or request the court to grant such a period.

2.2.2 Expiry of Time or Cases Not Requiring Additional Time

b. Circumstances Where Additional Time is Unnecessary
Article 124 – In the following cases, granting of additional time shall not be required:

Where it is evident from the debtor’s situation or conduct that granting additional time would be futile.
Where performance has become useless to the creditor as a result of the debtor’s default.
Where it is clear from the contract that performance will no longer be accepted if not rendered at a specified time or within a specified period.

c. Creditor’s Alternative Rights
Article 125 – If the debtor in default fails to perform within the additional time granted, or if circumstances exist where no additional time is required, the creditor shall always have the right to demand performance of the obligation together with compensation for the delay.

The creditor may also, by immediately declaring that he waives his right to performance and compensation for delay, demand compensation for non-performance, or withdraw from the contract.

In case of withdrawal, both parties shall be released from their obligations, and each may reclaim what has already been performed. If the debtor cannot prove that he was not at fault in falling into default, the creditor may also claim compensation for the damages suffered due to the termination of the contract.

d. Contracts of Continuous Performance
Article 126 – In contracts of continuous performance that have already commenced, if the debtor falls into default, the creditor may either demand performance and compensation for delay, or terminate the contract and claim compensation for the damages arising from the premature termination of the contract.

VOCABULARY LIST

Türkçe Terim	İngilizce Karşılık	Kullanım / Açıklama
Borç	Obligation / Debt	Genel hukuk terimi, hem alacak hem borç bağlamında kullanılır
Borçlu	Debtor	Borcunu yerine getirmekle yükümlü taraf
Alacaklı	Creditor	Borçludan edim talep etme hakkına sahip taraf
İfa	Performance	Borcun yerine getirilmesi, ifa edilmesi
İfa edilemezlik	Impossibility of Performance	Borcun, borçlunun sorumluluğu olmaksızın yerine getirilememesi durumu
Kusursuz imkânsızlık	Impossibility without Fault	Borçlunun sorumlu olmadığı sebeplerle ifa imkânsızlığı
Kusurlu imkânsızlık	Impossibility with Fault	Borçlunun sorumlu olabileceği sebeplerle ifa edememesi
Giderim borcu	Duty of Compensation / Obligation to Compensate	Borcun ifa edilmemesinden doğan zararın tazmini yükümlülüğü
Yapma borcu	Obligation to Do	Belirli bir edimi gerçekleştirme borcu
Yapmama borcu	Obligation Not to Do	Belirli bir eylemi yapmama borcu
Temerrüt	Default / Delay in Performance	Borcun vadesinde ifa edilmemesi durumu
Gecikme tazminatı	Compensation for Delay / Damages for Late Performance	Temerrüt sebebiyle alacaklının uğradığı zarar
Temerrüt faizi	Default Interest / Interest on Late Payment	Temerrüt halinde uygulanacak faiz
Sözleşmeye aykırılık	Breach of Contract	Sözleşme hükümlerinin ihlali
Karşılıklı borç yükleyen sözleşmeler	Contracts imposing Reciprocal Obligations	Tarafların birbirine edim borcu yüklediği sözleşmeler
Süre verilmesi	Extension of Time	Temerrüt durumunda alacaklının ek süre verme hakkı
Süre verilmesini gerektirmeyen durum	Circumstances Not Requiring Additional Time	Ek süreye gerek kalmayan haller
Aşırı ifa güçlüğü	Hardship / Excessive Difficulty of Performance	Öngörülmeyen olağanüstü durum nedeniyle borcun ifasının aşırı zorlaşması
Sözleşmeden dönme	Withdrawal from the Contract	Borcun yerine getirilememesi veya şartların değişmesi durumunda sözleşmeden çekilme hakkı
Sözleşmenin feshi	Termination of Contract	Sürekli edimli sözleşmede erken sona erdirme hakkı
Edim	Performance / Counter-performance	Borç ve alacak taraflarının yerine getireceği fiil veya menfaat
Haksız fiil	Tort / Wrongful Act	Sözleşme dışı hukuka aykırı fiil
Sebepsiz zenginleşme	Unjust Enrichment	Haklı sebep olmaksızın elde edilen menfaatin geri verilmesi yükümlülüğü
Önceden yapılan anlaşma	Advance Agreement / Pre-contractual Agreement	Taraflar arasında önceden kararlaştırılmış hükümler
Yardımcı kişiler	Auxiliaries / Assistants	Borçlunun işlerini yürütürken sorumlu tutulabileceği kişiler

Legal English – Turkish Code of Obligations: Multiple Choice Test

1. Article 136 establishes that an obligation is extinguished if:
A) The debtor voluntarily decides not to perform.
B) The creditor waives the right to performance.
C) Performance becomes impossible due to reasons not attributable to the debtor.
D) The obligation has a fixed deadline regardless of circumstances.

2. Under Article 137, if performance is partially impossible, the debtor:
A) Must negotiate new terms with the creditor before acting.
B) Is always liable for the entire obligation.
C) Automatically loses the right to counter-performance.
D) Is released only from the impossible part of the obligation.

3. “Hardship” under Article 138 allows the debtor to:
A) Request the court to adapt the contract to new circumstances.
B) Ignore the obligation if performance is inconvenient.
C) Unilaterally terminate the contract without court intervention.
D) Demand compensation from the creditor for changed circumstances.

4. According to Article 112, a debtor who fails to perform is liable unless:
A) He proves that he is not at fault.
B) He proves that the creditor was at fault.
C) The obligation was for a minor benefit only.
D) The contract is of indefinite duration.

5. In the context of Articles 113-114, if a debtor fails an obligation to do something:
A) The creditor loses all rights to damages.
B) The creditor can request performance at the debtor’s expense.
C) The debtor is immediately released from liability.
D) Only the court may intervene to enforce performance.

6. Which of the following statements about default interest (Articles 120-121) is correct?
A) It can exceed twice the statutory annual interest rate.
B) It accrues from the date the creditor suffers damages.
C) It accrues from the date enforcement proceedings or a lawsuit are initiated.
D) Contractual agreements can always override statutory rules.

7. Article 124 provides that additional time for performance is unnecessary when:
A) The debtor is willing to perform late.
B) Performance has become futile for the creditor.
C) The debtor notifies the creditor in advance.
D) The contract has no written extension clause.

8. “Withdrawal from the contract” (Article 125) allows the creditor to:
A) Reclaim previous performance and claim compensation.
B) Only claim damages without reclaiming previous performance.
C) Extend the contract unilaterally.
D) Modify the debtor’s obligations retroactively.

9. Under Article 116, the debtor is liable for damages caused by auxiliaries unless:
A) The auxiliaries are family members.
B) There is a prior agreement limiting liability.
C) The creditor waives all rights.
D) There is a prior agreement limiting liability, except in cases of expert services requiring legal authorization.

10. Continuous performance contracts (Article 126) allow the creditor to:
A) Terminate the contract and claim compensation for early termination.
B) Only wait until contract completion.
C) Automatically void the contract without notice.
D) Modify the obligation retroactively for future performance.

ANSWER LIST