LAW OF OBLIGATIONS

In the narrowest sense, debt means “money debt”. Debt in the narrow sense refers to a responsibility that one person is obliged to fulfil towards another person in a legal relationship. In the broad sense, debt refers to the legal relationship between two parties, called creditor and debtor. This relationship is called “debt relationship”. 

The law of obligations is a special branch of law that creates a legal basis by regulating the debt relations between legal entities within a legal framework. The Law of Obligations is the source of the law of obligations. 

1-Debt Relationship

Contrary to what is known, the debt relationship in the law of obligations is bilateral. These two parties are defined as creditor and debtor. There are 3 elements of debt relationship:

1.1 – Creditor

In a debt relationship, it is the party who has the right to demand a certain performance from the debtor in its favour.

1.2 – Debtor

The debtor is the party who has an obligation to fulfil a certain performance against the creditor due to the debt relationship between them.

1.3 – Performance

It is a behaviour that the creditor may demand from the debtor based on the debt relationship and that the debtor is obliged to fulfil.

2-Sources Of Debt

There are 3 reasons that initiate the debt relationship:

2.1-Contractual Debt Relations

The most common sources of debt relations are legal transactions and contracts. A legal transaction can be defined as a declaration of will to produce legal results. A contract is a bilateral legal transaction that occurs as a result of the mutual and appropriate declarations of will of two parties. The contracting parties are under an obligation to fulfil the contractual obligations to each other. The obligation of each party gives rise to a right of receivable for the other party

2.2-Debt Relations Arising From Wrongful Acts

A tort is an action that causes damage to the property or personal assets of another person in violation of the rules of law. In order to talk about a tort, the act that causes damage must first be against the law. The unlawful act must cause material or moral damage. According to Article 49 of the Turkish Code of Obligations, persons who cause damage to others through wrongful acts are obliged to compensate for these damages. 

2.3-Debt Relations Arising From Unjust Enrichment

Unjust enrichment is the increase in the assets of one person by damaging the assets of another person without a just cause. It occurs in cases such as making a transaction without a valid legal reason, before a legal reason is realised or after the legal reason has expired, and paying an act that is not a debt. Unjust enrichment is one of the debts arising from the law and is regulated between Articles 77-87 of the Code of Obligations.

2.3.A-Types Of Unjust Enrichment According To İts Source

2.3.A.A-Unjust Enrichment Arising From Gain 

This type of unjust enrichment arises from a gain made by the creditor in favour of the debtor; while the assets of the gainer increase, the assets of the gainer decrease by the rate of gain. For example, the performance made as a result of a contract that is not legally valid causes unjust enrichment.

2.3.A.B-Uljust Enrichment Arising From İntervention 

As a result of the act that violates a right or a legal value of another person, while there is a decrease in the assets of the injured person, there is an enrichment in the assets of the intervening person at the same rate.

2.3.A.C-Unjust Enrichment Arising From Unexpected Circumstances 

In this type of unjust enrichment, there is an unjust enrichment arising from the act of a person other than the parties or a natural event. In unjust enrichment arising from the act of a third party, it is not important whether the third party is at fault or not, or whether the act is unlawful or not.

2.3.B-Conditions Of Unjust Enrichment:

⦁ An enrichment must have occurred in the debtor’s assets. The increase in the assets is called enrichment.

⦁ The enrichment in question must have occurred in a way to cause damage to another person.

⦁ There must be a causal link between the enrichment and the enriching event. The enrichment occurring in the debtor’s assets to the detriment of another person must arise from one of the enriching causes such as the above-mentioned acquisition, intervention or contingency. In any case, only in this way, the enrichment in the assets of the creditor shall have occurred to the detriment of the creditor. If there is no causal link between the enrichment and the event causing unjust enrichment (acquisition, intervention or unexpected situation), the enrichment cannot be considered to have occurred against someone else. Here, the natural causal link between the enrichment and the enriching event (i.e. the theory of necessary condition) is sufficient, and there is no need for an appropriate causal link.

⦁ The enrichment must not be based on a just cause.

3-Transactions Terminating The Debt

The most normal situation in which the debt ends is the performance of the debt. As a result of performance, the obligated act is fulfilled fully and duly. However, performance is not the only way to end the obligation. There are some situations that terminate the debt other than performance. These conditions must be provided in a complete and legal manner. Otherwise, the debt does not end. Other transactions that terminate the debt are as follows: release, renewal, exchange, statute of limitations.

3.1-Release

Release is the name of the legal transaction that expresses the unconditional renunciation of one’s right in the possession or possession of another person. As it expresses that the right is cancelled by the owner and ceases to be the subject of litigation, release is a transaction that ends the liability for debt.

3.2- Renewal (Renewal)

Renewal, in other words, renewal is the termination of the existing debt by creating a new debt with the agreement of the parties.

3.3-Swap 

Settlement is the termination of the mutual and identical debts of two persons with the unilateral declaration of will of one of the parties to the extent that they meet each other.

4-Lease Agreement

One of the most frequently encountered contract types in daily life is the lease agreement. A lease agreement, also known as a lease contract, is concluded between the owner of a property and a tenant who wants to temporarily hold the property. This property can be land, real estate, residence, business or a car. According to the Turkish Code of Obligations, a lease agreement is a contract in which the lessor undertakes to leave the use of a thing or the use and enjoyment of it to the lessee, and the lessee undertakes to pay the agreed rental price in return. The lease agreement may be written or oral. Lease agreements are generally made in writing since it is important to be in writing in terms of the rule of proof. The lease agreement can be drawn up by the parties in ordinary form, or it can be drawn up by a notary public.

4.1-Form Of The Lease Agreement

The Law does not specify a mandatory form requirement for the validity of the lease agreement. Therefore, lease agreements may be concluded both orally and in writing. Lease agreements made orally and actually implemented are also valid if proven. However, since it is easier to prove in terms of future disputes, it is recommended to prepare lease agreements in writing.

4.2- Types Of Lease Agreements

The Turkish Code of Obligations regulates three types of lease relationships. These are as follows:

⦁ Ordinary Lease

⦁ Leasing of Residential and Roofed Workplaces

⦁ Product (Revenue) Rent

The type of lease agreement is very important for the resolution of disputes regarding the lease law. 

4.3-Elements Of The Lease Agreement

The elements of the lease agreement are as follows:

4.3.A – Agreement Of The Parties

The first condition for the formation of a lease agreement is that the lessee and the lessor have mutually agreed on the lease.

4.3.B-Transfer Of The Use Of Something

With the establishment of the lease agreement, the lessor grants the right to use the goods or rights that are the subject of the contract to the other party for a temporary period. The right of use transferred to the lessee is limited to the lease period and the lessee is responsible for returning the leased property to the lessor upon expiry of the lease agreement.

4.3.C-Lease Fee

It is the price paid for the use of the leased property by the lessee. Lease price; It can be in cash or in exchange for any product.

4.4-What Should Be Considered When Preparing A Lease Agreement?

We can list the issues to be considered when preparing the lease agreement as follows:

⦁ There is no form requirement for lease agreements to be valid. However, it is recommended that lease agreements be made in writing in order to make it easier to prove in disputes that may arise in the future.

⦁ Each page of the lease agreement must be signed by the tenant and the lessor. Because when the document is needed in the future, unsigned documents may be considered useless.

⦁ It is useful to clearly state the start and end dates of the lease agreement in the contract.

⦁ In the lease agreement, the address of the property to be rented, the type and personal information of the lessor party must be included in full.

⦁ It should be clearly stated in which case the leased place is delivered and will be taken back. 

⦁ In the lease agreement, it should be stated on which dates and how the rent to be paid will be paid.

⦁ Details of the rent increase rate must be included in the lease agreement. 

⦁ Unless otherwise agreed, the tenant must pay ancillary costs such as dues and cleaning costs. However, if a different agreement is reached by the parties, this must be clearly stated in the lease agreement.

⦁ If the tenant will carry out renovations and maintenance in the rented place, the scope and conditions of these renovations should be specified in detail in the lease agreement. The lessor’s approval may be required. Likewise, the details regarding the deposit should be detailed in the lease agreement. These details specify why the deposit is taken and under what conditions it will be returned.

4.5-What Are The Rights Of The Tenant Without A Contract?

As it is stated in Article 299 of the Turkish Code of Obligations that the declarations of will of the parties are sufficient for the establishment of the Lease Agreement, which is defined in Article 299 of the Turkish Code of Obligations, and that there is no need for any formal conditions (written, oral, notarised and similar) for the validity of the lease agreement; it is not obligatory to make the lease agreement in writing on the contract. Since the lease agreement not made in writing stands as an established and valid contract, the lessee, who is a party to the lease agreement, can benefit from all the rights granted to him by the provisions of the Turkish Code of Obligations specific to lease agreements. Since there is a valid and established lease agreement, the lessor cannot evict the lessee unlawfully or prevent the lessee from exercising the rights provided by the law. In addition, the lessee must act in accordance with the provisions agreed in the lease agreement, use the leased property in accordance with the rules, and fulfil its obligations towards its neighbours. In case of the existence of an existing lease agreement, the lessee can claim his/her rights by suing all illegal actions of the lessor claiming that there is no contract.

4.6- What Are The Grounds For Eviction?

The lessor must provide some valid reasons for the eviction of the lessee. These reasons can be listed as the need of the lessor or the new owner, reconstruction and construction, written eviction commitment, two justified warnings, the current residence of the lessee or his spouse:

⦁ The basic conditions for the eviction of the lessor due to the need for housing and workplace are; the need for housing and roofed workplace of himself, his spouse, his descendants and superiors and one of his dependents, and the need is real and sincere, and the conditions for eviction due to the need of the new owner are also the same.

⦁ In order to file an eviction case due to reconstruction and reconstruction; it is necessary to demolish and reconstruct the leased property, to repair, expand or change the leased property for the purpose of reconstruction, and it is impossible to use the leased property during these works.

⦁ In some cases, the lessee may undertake in writing to the lessor to vacate the leased property on a certain date after receiving the leased property. In order for eviction to take place with this commitment letter, which is called “written eviction commitment” in practice; after the delivery of the leased property, it must be committed against the lessor, it must be undertaken in writing to leave the leased property on a certain date and not evacuated despite this, and the lessor must apply for execution or file a lawsuit within one month starting from this date.

⦁ In order to file an eviction lawsuit due to the existing residence of the tenant or his/her spouse, the tenant or his/her spouse must have a residence that they own, this residence must be within the same district, town, municipality boundaries as the property they rent, and also the residence within these boundaries must be suitable for the tenant and his/her spouse to live in, and the lessor must not know that it is the residence of the tenant or his/her spouse when the lease agreement is made.

4.7- Example Of A Lease Agreement

LEASE AGREEMENT

 APARTMENT :

NEIGHBOURHOOD :

STREET

NUMBER :

TYPE OF LEASED PROPERTY :

NAME – SURNAME OF THE LESSOR : 

RESIDENCE AND T.C. IDENTITY NO. :

NAME AND SURNAME OF THE LESSOR: 

RESIDENCE AND T.C. IDENTITY NO.:

ONE YEAR RENT:

ONE MONTH RENT:

HOW THE RENT WILL BE PAID:

TERM OF RENT:

COMMENCEMENT DATE OF THE LEASE:

CURRENT CONDITION OF THE LEASED THING:

WHAT THE LEASED THING WILL BE USED FOR:

DECLARATION OF FIXTURES AND FITTINGS DELIVERED WITH THE LEASED THING

SPECIAL PROVISIONS OF THE LEASE AGREEMENT

1. The lessee is obliged to use the leased property as his own property and not to allow it to deteriorate, to lose its qualities, virtues, fame and reputation.
2. If the leased property is a residential property, only family members shall reside therein. In no way can a third person stay temporarily or permanently as a resident; If the leased workplace is a workplace, only the tenant will carry out activities in the agreed subject.
3. Water, electricity, natural gas, fuel costs of the rented place, apartment dues, etc. that will arise due to reasons such as lighting, cleaning of the apartment, etc. expenses and caretaker money belong to the tenant.
4. If the rented property will be put up for sale by the owner; the tenant will allow the prospective customers to visit and see the rented property.
5. The lessee is obliged to deliver the leased property to the lessor in the same condition in which he found it.
6. However, if any malfunction or damage occurs in the leased property, the elimination of which is within the responsibility of the lessor, the lessee shall notify the lessor in writing. The lessor shall not be liable for any expenses incurred by the lessee without notice. The lessee may make some useful modifications, repairs and decorations in the leased property with the consent of the lessor. The lessor’s right of choice during eviction shall be limited to the agreement made.
7. Electricity, water and natural gas subscriptions, from the signing of the contract ……. Within the period, the follow-up of the transactions will be made on behalf of the tenant on their own behalf, with the responsibility of making the expenditures. In addition, tenants (in residential leasing) will make the necessary registration procedures by submitting a declaration that they live in the leased property to the neighbourhood headman within 15 days.
8. The lessee shall withhold income tax at the rate of 20% over the rental price of the leased real estate in accordance with Article 94 of the Income Tax Law No. 193.
9. The tax and repair of the leased property belongs to the lessor and the cleaning and improvement costs required for its use belong to the lessee. Custom shall be observed in this regard.
10. The lessee shall notify the lessor in writing at least one month before the end of the period if they wish to evacuate the leased property at the end of the period, provided that the special conditions specified in annex 1 and 2 of this lease agreement remain unchanged.
11. When there is a need for provisions not written in this contract, the lease law numbered 6570, the Civil Code, the Code of Obligations, the condominium law numbered 634 and other relevant laws in force and the decisions of the Supreme Court shall apply.

This contract, which has been drawn up and signed under the free consent of the parties and includes “Special provisions” consisting of ….. articles, has been drawn up in two copies and one copy has been given to the parties.

Date of issue ../../….

TENANT LESSOR

5- What İs Collusion?

Muvazaa is the transactions carried out secretly by the parties of the relationship based on any legal basis. If we make a more comprehensive definition; collusion is when a person hides property or similar assets from third parties and tries to justify it legally. In collusion, both parties to each transaction are aware of the situation and are conscious. Their aim is to deceive third parties. For example, a marriage that will not take place is made in order to go abroad and the parties live in different houses without ever starting family life.

Collusion can be realised in the form of collusion between companies in order to affect competition, and collusion between the heir and the heirs in order to evade property from other heirs.

5.1-Types Of Collusion

5.1.A-Absolute Collusion

It is the pretence of a transaction that will never be done in reality. There is a hidden transaction and an ostensible transaction. For example: Divorce for one of the spouses to receive his/her father’s pension, but they continue to live in the same house.

5.1.B- Relative Collusion

Relative collusion is the pretence that a transaction to be performed in reality is performed in another type of transaction. For example: The father pretends to have sold the house to one of his children before his death. (The sale is made at the Land Registry Office, but he has not received the money.) The father’s intention is to give that house to his son (legally done by donation), but he pretends to have sold it so that the other children do not understand.

5.1.C- Partial Collusion

partial collusion is the representation of only a part of a transaction in a different way. For example: Understatement of the sale amount to avoid tax.

6-What İs The Right Of Pre-Purchase (Right Of Preemption)?

The right of pre-purchase, also known as the right of interest, authorises any shareholder in an immovable subject to the provisions of shared ownership, in the event that any shareholder sells some or all of his/her share to a third party, to authorise other shareholders to purchase the sold share first. This right arises with the establishment of the shared ownership and becomes exercisable upon the sale of shares. The right of pre-emption and the right of interest have the same meaning. The court in charge of the lawsuit to be filed by the right holder is the civil court of first instance. The competent court is the court where the immovable is located. 

6.1- Legal Preemption Right

The right of legal pre-emption is a right granted to the shareholders by law. In order to exercise this right, there must first be an immovable property subject to shared ownership. In the event that one of the shareholders sells some or all of his/her share to a third party, each shareholder’s right of pre-emption becomes available. This right is specific to the share, not to the person, that is, it is a right recognised to the shareholder, not to any person. Whoever is the shareholder can use the right of pre-emption. The legal pre-emption right does not prevent the transfer of the share, but gives the authority to prevent a foreign shareholder from entering the partnership. After the sale to the third party, the buyer must notify all shareholders of the purchase of the immovable property through a notary public.

6.2-Contractual Preemption Right

Contractual Pre-emption Right is a pre-emption right arising as a result of a contract made by the owner of the immovable property with a contract with any person. The contract must be made at a notary public. The contract recognising the right of pre-emption must be annotated in the title deed. The annotated right can be asserted against every owner. The effect of the annotation is 10 years.