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Decision on Unification of Jurisprudence
There is a full consensus by the Court of Appeal Civil Chambers that
a late charge can be accrued if there is a written agreement between the
parties justifying the late charges or a commercial custom to this effect.
However, there was a disagreement between the Court of Appeal
Civil Chambers as to whether late charges could be accrued when there
is no written agreement between the parties, no established custom, and
no objection to the relevant invoice bearing a late charge clause within
eight days pursuant to Article 23/2 of the TCC. Thus, conflicting decisions
were given by different chambers. Therefore, the Court of Appeal Grand
Assembly decided to unify the precedents by its decision dated 27 June
2003 and numbered 2001/1 E. and 2003/1 K. Pursuant to this decision, the
following conclusions were rendered:
1.
If there is a written agreement between the parties as to
implementation of a late charge, the invoice bearing a late charge
clause would be considered a notice. The objection in time or no
objection to the late charge clause on the invoice would not have
any legal consequences, and the late charge can be accrued.
2.
If there is no clause included within the written agreement between
the parties as to a late charge requirement, the price, which is an
essential element of the agreement, cannot be altered by a unilateral
will. Therefore, even there is no objection issued within eight days
against the contents of the invoice bearing a late charge, the late
charge can not be accrued.
3.
Even if there is no agreement on the implementation of late charge,
if there is an established custom in this manner between the parties,
a late charge may be accrued provided that there is no objection to
the invoice within eight days from its receipt.
4.
If there is no written agreement or established custom between
the parties as to the implementation of a late charge, an invoice
including a late charge clause notified to the counter party and not
objected to within eight days causes the invoice to be final and does
not grant the issuing party a right to accrue a late charge.