Newsletter-21

7 COMMERCIAL LAW the Assembly states that the continuance of the commercial relationship by the parties for the contract’s remaining period of nine years despite the formal notifications, sale by the de- fendant distributor of products in an amount below what he had committed to sell each year under the contract, and the fact that the claimant company did not respond (or remained silent) to the formal notification served by the defendant distributor, and supplied products to the defendant com- pany throughout the term of the contract created a justified trust in the defendant distributor that the Article regulating the penalty of the distribution contract between the parties shall not be applicable, also considering that this distribu- tion relationship lasted between the parties for the remaining term of the contract. The defendant distributor continued to purchase products from the claimant company due to such justified trust; however, it has been unexpectedly requested by the claimant company to pay the penalty following the termination of the contract. Therefore, the source of the fact that has arisen due to the agreement not to apply Article 15 of the distribution contract is a justified trust. Such trust li- ability is a condition of the principle of good faith. More importantly, the fact that the claimant company requests a penalty following the termination of the contract in breach of the trust it created in the defendant distributor constitutes the prohibition of contradictory behaviour, and such behaviour cannot be expected to be protected in legal terms. On the other hand, the principal or the supplier would have the right to terminate the contract and claim for the past years’ loss of profit, if it proves that it tolerated such breach in the past year, trusting that the agent or the distributor would remedy the breach; or it notified the agent or the distributor to cure the breach, and explicitly reserved its rights arising from such breach; or the relationship became unbearable (e.g. the agent or the distributor not making any efforts to reach the targets, or making less purchases than before). Kocayusufpaşaoğlu/Hatemi/Serozan/Arpacı: Borçlar Hukuku, Genel Bölüm, Volume I, Istanbul 2008, p: 206.