T.R. YARGITAY 15th Law Office Basis: 2018/2380 Decision: 2018 / 1912 Decision Date: 14.05.2018
SUMMARY: In accordance with the subcontracting agreement between the parties dated 13.03.2012, the cost of the work done by the plaintiff; According to the expert report received, it was determined as 52,580,00 and there was no misconduct in accepting this part of the claimant’s claim, but the partial acceptance of the plaintiff’s request for penal clause was not correct in the face of the contract and legal regulations. The plaintiff is the subcontractor and the defendant is the contractor, and with the contract dated 13.03.2012, some of the works undertaken by the defendant were made by the plaintiff. Although the penal clause has been decided in Article 16 of the contract between the parties, in Article 15 of the contract made between the non-litigation employer and the defendant; According to the precedent decision of our Department dated 26.09.2016, it is forbidden to have the work done through a subcontractor-subcontractor, and the plaintiff party should know this provision in the contract made by the contractor with the non-litigation employer; Due to this provision between the employer and the contractor, since the contract between the parties cannot be fulfilled, it is not possible to demand a penal clause (Articles 136, 177, 182 of the law numbered 6098), while the request for a penal clause should be rejected completely. Since it is not liquid and the amount is determined by the trial and the expert report, execution denial compensation cannot be awarded either. It was not right to make a decision contrary to the legal regulations and judicial practices, and the decision had to be reversed for the benefit of the defendant.
(6098 S. K. Art. 136, 177, 182)
Lawsuit: The examination of the above-mentioned provision was requested by the attorneys of the parties, and it was understood that the appeal petitions were submitted in due time.
The case is related to the cancellation of the objection to the enforcement proceedings for the collection of the production cost and the penal clause due to the unfair termination of the contract of work, the continuation of the proceedings, the demand for the execution denial compensation, and the decision of the court regarding the partial acceptance of the case was appealed by the attorneys of the parties in due time.
1-According to the articles in the file, the evidence on which the decision is based, and legally compelling reasons, all objections of the plaintiff’s attorney and the defendant’s other appeals, which are outside the scope of the paragraph below, were not found appropriate and had to be rejected.
2-The attorney of the plaintiff’s client undertook by the defendant’s tender from the General Directorate of Highways; … …(13+896,062 km) … bridge construction earthworks, engineering structures superstructure works, by employing heavy equipment and workers, took the leveling, transportation, construction and manufacturing part, as it was understood that road safety could not be ensured due to landslides while a part of the production was being done. For the collection of the penal clause of 52,580,00 TL in return for the cost of the productions and 400,000,00 TL written in the contract… He requested the annulment of the objection to the follow-up made in the file no 2013/6731.
Because the defendant’s attorney cannot make a claim due to a contract that does not appear in the commercial records, does not exist legally, and is not valid; He argued that there is a provision in Article 15 of the contract with the employer that the subject matter of the lawsuit cannot be subcontracted, that the amount of penal clause requested is exorbitant and contrary to equity and the case should be rejected.
In accordance with the subcontracting agreement between the parties dated 13.03.2012, the cost of the work done by the plaintiff; According to the expert report received, it was determined as 52,580,00 and there was no misconduct in accepting this part of the claimant’s claim, but the partial acceptance of the plaintiff’s request for penal clause was not correct in the face of the contract and legal regulations. The plaintiff is the subcontractor and the defendant is the contractor, and with the contract dated 13.03.2012, some of the works undertaken by the defendant were made by the plaintiff. Although the penal clause has been decided in Article 16 of the contract between the parties, in Article 15 of the contract made between the non-litigation employer and the defendant; According to the precedent decision of our Department dated 26.09.2016, it is forbidden to have the work done through a subcontractor-subcontractor, and the plaintiff party should know this provision in the contract made by the contractor with the non-litigation employer; Due to this provision between the employer and the contractor, since the contract between the parties cannot be fulfilled, it is not possible to demand a penal clause (Articles 136, 177, 182 of the law numbered 6098), while the request for a penal clause should be rejected completely. Since it is not liquid and the amount is determined by the trial and the expert report, it is not liquidated.
