Penal Clause: If the parties do not comply with the terms of the contract at all or do not comply properly, if they have decided that the non-compliance party will pay a certain amount of money, a penal clause is mentioned. Unlike compensation, there is no need for the damage to occur in the penal clause. If the other party has suffered a loss, it may also request this. The parties can freely decide the amount of penal clause. Penalties can appear in three ways:
-Elective Penal Condition:
Pursuant to article 179/1 of the Turkish Code of Obligations; “If a penalty has been agreed for the non-performance of a contract at all or as required, the creditor may request either the performance of the debt or the penalty, unless otherwise agreed in the contract.” According to this; If the parties have not agreed to the contrary with the contract, the stipulated penal clause is “elective penalty” and the creditor who is entitled to receive the penal clause may exercise one of the rights to demand the performance of the penal clause or the performance of the performance agreed upon by the contract.
-Penalty Condition Preventing Performance/Return Condition:
There is no real penal clause here. Because the penal clause protects the interests of the creditor. But here the debtor has the right to withdraw from the contract by paying a certain amount of money. Unlike the optional penal clause here, the creditor has no right to choose, he cannot demand performance, he can only ask for the penal clause.
-Penal Clause Attached to Performance:
According to article 179/2 of the Turkish Code of Obligations; “If the penalty is determined for non-performance of the debt at the specified time or place, the creditor may also request the performance of the penalty together with the original debt, unless he has explicitly waived his right or accepted the performance without reservation.” According to this provision, a decision can be made against the party who fails to perform the debt specified in the contract on time or on time, both to perform the debt and to pay the agreed penalty clause price. If there is a clear provision regarding this in the contract, the performance is obliged to pay this additional money due to the penal clause attached.
