Introduction
The main obligation of the contractor in the contract of work is to create the work and deliver it to the owner. In order to be able to deliver the work on time, the work for the creation of the work must be started on time and this work must continue1.
Article 473 of the Turkish Code of Obligations provides the owner with an opportunity to apply before the contractor's obligation to deliver the work becomes due. Pursuant to this provision, if the contractor delays in starting the work, slows down the work or it is understood that the contractor will not be able to complete the work on time, the owner may rescind the contract. In order to use the right of rescission, the delay must be caused by a reason that cannot be attributed to the owner. Pursuant to the aforementioned provision, although it is not necessary for the contractor to be at fault in order to rescind the contract, the delay in the work must be in breach of the contract2.
In our article, the conditions of Article 473 of the Turkish Code of Obligations are emphasised, finally, the consequences of the owner's use of the right of rescission are mentioned.
A. Conditions of the Right of the Owner to Rescind the Contract Pursuat to Article 473 of the Turkish Code of Obligations
1. Performance of the Obligation to Create the Work Must be Possible
In order for the owner to be entitled to rescind the contract due to delay, firstly, it must be possible to fulfill the obligation to create the work after the contract is concluded.
2. There Should be a Delay
a. Of the Contractor does not Start Work on Time
In this case, the contractor is delayed in starting the work. In this situation, in order to rescind the contract pursuant to Article 473 of the Turkish Code of Obligations, the date of delivery or completion of the work must not have been agreed upon by the parties in the contract. If the date of starting the work has not been determined by the parties, Article 90 of the Turkish Code of Obligations should be applied by analogy and the contractor should start the work within a reasonable time3. The contractor may not delay the starting of the work by delaying the preparatory activities4.
b. Slowing Down the Work by the Contractor
In order to rescind the contract based on this reason, the date of delivery or completion of the work must not have been agreed by the parties.
Even though the contractor has started the direct performance of the work to create the work, there is a postponement of the work if the contractor performs the work at a slower tempo than required by the contract or the nature of the work or interrupts the work5. However, the slow progress of the works compared to similar works does not by itself entitle the owner to rescind the contract6.
If faster performance of the work cannot be expected from the contractor, the owner cannot rescind the contract for this reason.
c.Understood That the Contractor will not be able to Complete the Work on Time
This situation may appear in any case where the delayed completion of the work is recognised as certain. It is sufficient to clearly understand that the work will not be completed on time from the contractor's current inadequate act of work7.
In order to rescind the contract based on this reason, the date of delivery or completion of the work must have been agreed by the parties.
3. Giving a Suitable Duration to Contractor
In order to use the right of rescission due to failure to start the work on time or postponement of the work, a suitable duration should be given to the contractor by analogy with Article 123 of the Turkish Code of Obligations. This time is given to the contractor to start work or to bring the work tempo up to required level8.
B. Consequences of the Right of the Owner to Rescind the Contract Pursuant to Article 473 of the Turkish Code of Obligations
In the conditions we have explained, the owner may rescind the contract of work with retroactive effect. In this case, the owner will not be able to demand the completion of the work and the contractor will not be able to demand payment of the cost9. In case of rescission of the contract, the parties may demand the return of the previously performed obligations. The owner may demand compensation from the faulty contractor for the reliance damage suffered10.
Conclusion
Pursuant to Article 473 of the Turkish Code of Obligations, the owner may rescind the contract if the contractor delays in starting the work, slows down the work or it is understood that the contractor will not be able to complete the work on time. In our article, the conditions and the consequences of the owner's use of this right of rescission were explained.
Footnotes
1. Mustafa Alper Gümüş, Borçlar Hukuku Özel Hükümler, İstanbul, 2018, s. 333.
2. Gümüş, s. 336.
3. Cp.: Eldem Ecehan Yapışlar, Eser Sözleşmesinde İş Sahibinin Dönme Hakkı, İstanbul Medipol Üniversitesi Sosyal Bilimler Enstitüsü Yüksek Lisans Tezi, İstanbul, 2019, s. 54.
4. Müge Ürem, Eser Sözleşmesinde Erken Dönme, 2017, s. 71.
5. Gümüş, s. 335.
6. Yapışlar, s. 55.
7. Gümüş, s. 335.
8. Gümüş, s. 336.
9. Ürem, s. 207.
10. Gümüş, s. 336.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.