Reduction of Criminal Requirements in Commercial Law
(HGK-K.2021/984)
If the penal clause is so heavy and high as to cause the economic ruin of the merchant debtor, the court may decide to completely or partially remove the penal clause, as it would be contrary to general custom and custom.
Penal clause [penal clause in the Turkish Code of Obligations (TCO)] 158 to 161 of the same Law. it is regulated in the articles.
A penal clause is a separate act with a financial value that must be paid if the current obligation is not fulfilled or incompletely fulfilled. The elements of the criminal requirement can be easily inferred from this definition. These elements are the existence of a real principal debt, in addition to this, the existence of a separate and independent act, the interdependence of these two, and the determination of this separate and independent act in a process that gives rise to a provision in health (Tunçomağ, p. Oct. 6).
The penal clause is a secondary performance of the principal debt, an act related to the principal debt but separate from it, and the realization of the damage is not mandatory for the realization of the penal clause.
158 Of the abrogated Code of Obligations No. 818. the article regulates three different types of criminal conditions. These are optional penal condition, penal condition added to the performance and penal condition preventing the performance.
161 Of the abrogated Code of Obligations No. 818 entitled “Invalidity and Restitution of the Penalty”. in the article “Contracts are free to determine the amount of the penalty. If the penalty is stipulated to confirm a debt contrary to law or morality, or if the fulfillment of the debt has become impossible due to a situation that does not require the debtor’s responsibility, paying the prescribed penalty may not be requested. The judge is obliged to reduce the sentence that he considers excessive.” it is said.
The judgment is contained in the Oct.
When investigating whether the penalty is excessive, the judge takes into account the damage suffered by the creditor due to the violation of the debt, the degree of defect of the debtor, the common defect of the creditor and the economic situation of the parties (especially the debtor). Taking these issues into consideration, if there is a clear disproportion between the damage suffered by the creditor and the agreed penalty to an extent incompatible with the fairness criteria, a discount is made on the penalty. Dec. In assessing whether the penalty clause is excessive, it should be taken into account that the purpose of the penalty clause is to improve the creditor’s situation.
161 Of the Law on criminal conditions. after accepting the principle of the first paragraph of the article (Contracts are free to determine the amount of the penalty), the judge was obliged to compensate the penalty he deemed excessive by the provision of the third paragraph. However, the abrogated Turkish Commercial Code (TCC) No. 6762, which was in force at the time of signing the contract and should be applied in terms of concrete events, is 24. the provision of the article, after accepting the principle that parties bearing the title of merchants can freely determine the amount of the penalty, adopts that they cannot request that this penalty be reduced, that is, deducted.
24 of the abrogated Turkish Commercial Code No. 6762. in the article, “The debtor who has the title of merchant cannot ask the court to reduce the fee or fine on the grounds that it is excessive in the cases written in the second paragraph of Article 104 of the Code of Obligations, the third paragraph of article 161 and the third paragraph of article 409.” the judgment is contained.
The criminal requirement in our commercial law is only 20 of the Law. it is limited in terms of quantity by the concept of “immoral behavior” in its article. 24 Of the abrogated TCC. according to article 20 of the Code of Civil Procedure, it is not possible for a merchant to request correction of the criminal condition that he owes; however, the principle of freedom of contract granted to the merchant and his contractor by this article is a limiting provision for all contracts. the article is limited by its provision.
If the amount of the penal clause agreed by the parties in the contract is too heavy and high to lead to the economic bankruptcy of the debtor trader and not allow him to continue his commercial activity as before, it is possible that such a penal clause may be considered a condition contrary to morality and decency and partially or completely canceled. Because the invalidity of the penal clause in the contract due to the violation of morality and decency is a general principle of law. 24 Of the abrogated TCC. it is inconceivable that the provision of the article should be excluded from this general sanction. All kinds of criminal conditions that reach a level that may endanger or destroy the economic and commercial activities and existence of the debtor are contrary to morality and decency.
While making a decision on this issue, the court should investigate whether it is possible for the company to continue its commercial life as before in case of collection of the agreed criminal condition by taking an expert opinion if necessary. The same examination should be carried out for a real person trader. As a matter of fact, the date of the General Assembly of Law 18.06.2019 and 2017/19-922 E., 2019/706 K. the same principles have been adopted in the numbered decision.
When the concrete event is evaluated in the light of these principles and explanations; a sales contract was signed between the parties on 01.01.2012 and the 16th Dec. in the event that the defendant operator does not partially or completely operate the enterprise during the term of the contract, transfers the enterprise or changes jobs in the enterprise, or causes the termination of the contract by violating any of the provisions of this agreement, the plaintiff shall pay all debts in the company records and all financial assistance, contributions and all kinds of fixed investment expenses and applied discount amounts, including accrued interest from the date of issue, together with interest to be calculated, as well as US$ 16,000 on punitive terms, in addition, the company will pay the losses incurred by the company, including loss of profit, to the company without objection.
It is fixed that the defendant caused a violation of the contract by transferring the enterprise contrary to the contract while the contract was in progress. However, although the court has ruled a penal clause against the defendant due to the defendant’s violation of the contract, the 22nd amendment of the TCC numbered 6102. it is stated that the article does not provide for a discount from the criminal condition, the defendant is a merchant and must act prudently when entering into a contract, there is no discount from the amount of the criminal condition, but if the criminal condition is severe and high enough to lead to the economic ruin of the merchant debtor, the court may decide to cancel all or part of the criminal condition, since this issue will be considered contrary to general custom and morality.
In this case, before the court decides on the criminal condition, the economic situation of the parties on the date of the contract, the payability and power of the defendant debtor should be taken into account, the defendant’s books and records should be examined in this direction, an expert report should be obtained in a way that is suitable for audit and a decision should be made according to its result, but the decision to resist based on incomplete examination and erroneous justification is inappropriate.
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