Performance and Daily Practice of Turkish Obligation Law: A Comparative Insight with European Systems

Introduction

Obligation law (Borçlar Hukuku) forms the very foundation of private law in Turkey, regulating the legal relationships that arise between parties whenever an obligation is created—whether by contract, tort, unjust enrichment, or statutory provisions. At the core of this system lies the concept of performance (ifa), the act by which the obligor (debtor) fulfills what was promised to the obligee (creditor).

Understanding the mechanism of performance, how contracts are formed through offer and acceptance, and what remedies exist when performance fails, is essential not only for lawyers but also for businesspeople, investors, and even ordinary individuals in their daily transactions.

This article explores these key concepts within Turkish Obligation Law (Türk Borçlar Kanunu – TBK), illustrates their application in daily life, and provides a comparative outlook with German, French, and Swiss legal systems, upon which Turkish law has historically been modeled.

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Part I – The Concept of Performance (İfa) in Turkish Obligation Law

Definition

Performance (ifa) refers to the actual fulfillment of an obligation by the obligor in accordance with the content of the debt relationship. In other words, the delivery of goods, payment of money, or rendering of services that the obligor promised to the obligee.

Under TBK, the obligation is not complete until performance occurs. Merely signing a contract creates a duty, but it is performance that materializes the legal bond.

Core Elements of Performance

1. Subject Matter (Edimin Konusu):
   The subject must be lawful, possible, and determinable. Delivering a car, providing consulting, or paying rent are valid performances. Delivering illegal goods is void ab initio.
2. Parties:
   The obligor must perform to the rightful obligee or his/her lawful representative. If payment is made to a third person without authority, performance may not discharge the debt unless ratified.
3. Time & Place:
   If not determined in the contract, statutory rules apply. For instance, TBK art. 89 requires that money debts be paid at the creditor’s domicile, while TBK art. 90 governs obligations of delivery.
4. Manner of Performance:
   Performance must comply with good faith (dürüstlük kuralı – TBK art. 2) and contractual terms. A defective performance may still amount to “performance” in form, but it triggers liability for breach.

Importance in Practice

From paying rent to delivering construction materials, performance governs daily commerce. The majority of disputes before Turkish courts—including claims for unpaid invoices, delayed delivery of real estate, or defective services—revolve around performance failures.

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Part II – Formation of Contracts: Offer and Acceptance

Offer (İcap)

An offer is a clear and definite declaration of intent by one party to enter into a contract if accepted. It must include the essential elements of the contract and indicate intent to be bound.

Example: “I offer to sell my apartment in Istanbul for 5,000,000 TL.”

Acceptance (Kabul)

Acceptance is the obligee’s consent to the offer in full alignment with its terms. Any modification counts as a counter-offer, not acceptance.

General rule: Silence does not constitute acceptance (TBK art. 6), except where commercial practice or prior dealings imply otherwise.

Once offer and acceptance match, a binding contract is formed (TBK art. 1).

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Part III – Remedies for Non-Performance

Let us consider a real-life example:

A farmer (obligor) agrees to deliver 100 tons of wheat to a trader (obligee). The delivery date passes, but no wheat is delivered.

Under TBK, the obligee’s rights include:

1. Demanding Performance (İfa Talebi – TBK art. 125/1):
   The creditor may insist on actual delivery.
2. Compensation for Damages (Tazminat – TBK art. 112, 117):
   If the obligor is in default (temerrüt) or performance becomes impossible due to fault, the obligee can demand monetary compensation.
3. Termination/Withdrawal (Sözleşmeden Dönme – TBK art. 125/2):
   If the breach is substantial, the creditor may terminate the contract.
4. Performance + Damages:
   In some cases, the creditor may demand both performance and damages for delay (e.g., late delivery with market losses).
5. Substitute Performance:
   If the obligation is fungible (e.g., wheat, oil), the obligee may purchase goods elsewhere and charge the obligor for the difference.

This framework ensures balance between protecting the creditor’s expectation and preventing disproportionate burdens on the debtor.

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Part IV – Comparative Insight: Turkey vs. European Systems

Swiss Law – The Mother Code

The Turkish Code of Obligations (TBK, 2011) is largely adapted from the Swiss Code of Obligations (Obligationenrecht – OR). The structure, terminology, and many provisions are almost identical, reflecting the Swiss influence.

German Law (BGB)

German law is characterized by its dogmatic precision and systematic approach. The BGB (Bürgerliches Gesetzbuch) separates “primary obligations” from “secondary obligations” arising from breach. Turkish law, though influenced, adopts a more flexible structure like the Swiss OR.

For instance, the German doctrine of Schuldverhältnis (obligation relationship) and its detailed rules on impossibility (Unmöglichkeit) are more technical compared to Turkish law.

French Law (Code Civil)

French law historically revolved around consent and cause, less systematically developed than German law. After the 2016 reform of the French Code Civil, rules became more modern and closer to the Swiss-Turkish model, especially regarding remedies for non-performance.

Distinct Turkish Features

• Good Faith Principle (Dürüstlük Kuralı – TBK art. 2): Stronger emphasis compared to German law, shaping judicial discretion.
• Consumer Protection: TBK integrates modern protective rules, reinforced by consumer law (6502 sayılı TKHK).
• Temerrüt & Impossibility: Turkish law follows Swiss tradition, but Turkish courts frequently adapt principles to local commercial realities, especially in construction, leasing, and foreign currency contracts.

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Conclusion – Why Performance Matters in Daily Life

Obligation law is not an abstract doctrinal field; it is the backbone of daily transactions in Turkey. Every purchase, lease, employment contract, or commercial deal is governed by the principles of performance, offer, and acceptance.

When performance is not rendered, the creditor’s rights are safeguarded by TBK’s flexible remedies: specific performance, damages, or contract termination. These mechanisms ensure trust in commerce and stability in private law relations.

From a comparative perspective, Turkish law mirrors its Swiss origin while borrowing systematics from German law and aligning with the protective tendencies of French law. This hybrid character makes it adaptable for both domestic and international business relations.

For investors, businesspersons, and ordinary citizens, understanding performance and remedies under Turkish Obligation Law is essential. It determines not only the outcome of lawsuits but also the success of everyday economic activities.