Newsletter-21

6 NEWSLETTER 2016 its decision dated 16 January 2013 3 , the Assembly of Civil Chambers of the Court approved the decision of the court of first instance rendered on the grounds that “the claimant did not file a lawsuit, although the penalty that it claimed by way of a formal notification from the defendant due to missing product purchase within the first year following 06.10.1998 in which the distribution relationship was established, was unpaid by defendant; it maintained a distribution relation- ship with the distributor, although the defendant did not purchase products throughout the entire following 9 years in the amount it had committed to; this situation means that the claimant tacitly waived the enforcement of the tonnage undertaking and penalty provisions regulated under Article 15 of the distribution contract; the defendant did not pur- chase fuel oil products from third parties during the term of the contract, and the claimant continued to supply product to the defendant, and accepted the consideration of the prod- ucts without making a reservation, although the defendant never purchased fuel oil products from the claimant in the minimum amount specified under the contract; in light of these circumstances, Article 15 of the contract has been de facto removed from the contract; a nine-year lasting practice has been established so that the minimum order commitment shall not apply, and a penalty shall not be claimed,” and ruled that the penalty cannot be claimed not only for the previous years but also for the last year. According to the Assembly of Civil Chambers, due to the long-established business relationship between the parties, the fact that a party replied to the order of the other party directly by sending the product after a time without making an acceptance declaration ( de facto acceptance) within the scope of the practice until then, creates a sense of trust so that the situation will continue the same as before 4 . Accordingly, 3 Turkish Court of Cassation Assembly of Civil Chambers, File No. 2012/19-670, Decision No. 2013/171, Date: 16.01.2013 (www.kazancı.com) . 4 Turkish Court of Cassation Assembly of Civil Chambers, File No. 2012/19- 670, Decision No. 2013/171, Date: 16.01.2013 (www.kazancı.com ) cited from