Newsletter-21

5 COMMERCIAL LAW Previous Years’ Loss of Profit In the event the principal or the supplier continues to be bound by the contract, although being aware of the non-attainment, i.e. the breach of the contract, whether or not loss of profit for the past years may be claimed may differ depending on applicable laws. In such cases, facts of each specific case should be evaluated. In most cases, claiming for the previous years’ loss of profit, although the contract has been active, is considered as a violation of the good faith principle, and the principal or the supplier is deemed to have waived its right to terminate the contract due to the previous years’ non-attainment. In such a case, the principal or the supplier should not be able to claim for the loss of profit of the preceding years, and can claim for damages only in the amount of the profit for the period in which it terminated the contract. The Turkish Court of Cassation has rendered differing decisions on the subject. • Opinion of the Turkish Court of Cassation stating that the previous years’ loss of profit cannot be claimed: The 19th Civil Chamber of the Court rendered a judgment in line with our above-explanations in its decisions dated 16 January 2014 1 and 24 April 2014 2 and stated that in the event of con- tracts containing a minimum order of commitments, includ- ing periodic performances, continuing to supply products following the end of a period without making a reservation or a notification, shall be deemed as a tacit waiver of the penalty claim pertaining to the previous period and, in such a case, the case penalty receivable may be claimed by the claimant for only the last year, and the defendant shall be liable only for such amount. • Opinion of the Turkish Court of Cassation stating that the provisions relating to the guaranteed minimum order cannot be applicable to any period: On the other hand, in 1 Turkish Court of Cassation 19th Civil Chamber, File No. 2013/14851, Decision No. 2014/1302, Date: 16.01.2014 (www.kazancı.com) . 2 Turkish Court of Cassation 19th Civil Chamber, File No. 2014/3953, Decision No. 2014/7865, Date: 24.04.2014 (www.kazancı.com) .