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Claiming Compensation for Positive Damages by Waiving the
Specific Performance
Pursuant to Art.125 TCO, the creditor may claim compensation for
damages incurred because of the non-performance of the obligation by
notifying immediately that he waives his right to claim the specific per-
formance of the obligation together with compensation for delay.
Where this optional right is used, the contract remains in force.
Therefore, the creditor shall still perform his obligation.
The condition of being at fault in the occurrence of the default is
also required as a condition in order to claim compensation for posi-
tive damages. The assumption of fault mentioned above also applies in
this respect.
The creditor shall immediately notify the obligor if he wishes to
exercise this option. In case the creditor does not notify at the end of
the allotted time, he is deemed to have waived this right and his only
remaining option is to claim the specific performance together with
compensation for delay.
Claiming a Compensation for Negative Damages by
Rescinding the Contract
In case the obligation is not performed within the time granted, the
creditor may rescind the contract and claim compensation for negative
damages, provided that he immediately notifies this fact to the obligor
at the end of the allotted time.
In case either of the parties has already performed his obligation,
this shall be returned as rescission from the contract is retroactive.
Although it is in dispute whether the return shall be realized based on
unjust enrichment or by being incongruent to the contract, the Turkish
Court of Cassation has favored the first view.
It is not required that the obligor is at fault for being in default in
order for the creditor to exercise the right to rescind the contract.
However, as for other compensations mentioned above, the fault of the
obligor is required as a condition for claiming compensation for nega-
tive damages, which is deemed to exist as a presumption.
LAW OF OBLIGATIONS
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