Penal Clause And Types

Penal Clause: if the parties do not comply with the terms of the contract at all or do not comply properly, the Penal Clause is mentioned if they have agreed that the party that does not comply will pay a certain amount of money. Unlike compensation, there is no need for damages to arise in a Penal Clause. If the other party has suffered a loss, it can also ask for it. The parties can freely decide the amount of Penal Clause. The Penal Clause can occur in three ways:

– Selective Penal Clause:

In accordance with article 179/1 of the TBK; “if a penalty has been agreed for the non-performance of a contract at all or as required, the creditor may request the performance of either the debt or the penalty, unless otherwise agreed by the contract.”Accordingly, if the parties have not made a reverse decision by the contract, the creditor who is entitled to receive the penalty condition, where the provision of the prescribed penalty condition is an “electoral penalty”, may exercise one of the rights to request the execution of the penalty condition or the execution of the action agreed by the contract.

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Penal Clause: if the parties do not comply with the terms of the contract at all or do not comply properly, the Penal Clause is mentioned if they have agreed that the party that does not comply will pay a certain amount of money. Unlike compensation, there is no need for damages to arise in a Penal Clause. If the other party has suffered a loss, it can also ask for it. The parties can freely decide the amount of Penal Clause. The Penal Clause can occur in three ways:

– Selective Penal Clause:

In accordance with article 179/1 of the TBK; “if a penalty has been agreed for the non-performance of a contract at all or as required, the creditor may request the performance of either the debt or the penalty, unless otherwise agreed by the contract.”Accordingly, if the parties have not made a reverse decision by the contract, the creditor who is entitled to receive the penalty condition, where the provision of the prescribed penalty condition is an “electoral penalty”, may exercise one of the rights to request the execution of the penalty condition or the execution of the action agreed by the contract.

– PENAL CLAUSE/RETURN CONDITION THAT PREVENTS PERFORMANCE:
There is no real Penal Clause here. Because the Penal Clause protects the creditor’s interest. But here the borrower has the right to return from the contract by paying a certain amount of money. Here, unlike the electoral Penal Clause, the creditor does not have the right to choose, he cannot request a performance, he can only request a Penal Clause.

– Penal Clause Attached To The Performance:

According to Article 179/2 of the TBK; “if the penalty is agreed for the failure to perform the debt at the specified time or place, the creditor may also request the execution of the penalty along with the actual debt, unless he has expressly waived his right or accepted the performance without reservation.”According to this provision, a decision may be made against a party that does not perform the debt set out in the contract as necessary on the spot or on time, both to perform the debt and to pay the agreed penalty condition. If there is a clear provision in the contract, it is liable to pay this attached money due to the Penal Clause attached to the performance.

/RETURN CONDITION THAT PREVENTS PERFORMANCE:
There is no real Penal Clause here. Because the Penal Clause protects the creditor’s interest. But here the borrower has the right to return from the contract by paying a certain amount of money. Here, unlike the electoral Penal Clause, the creditor does not have the right to choose, he cannot request a performance, he can only request a Penal Clause.

– Penal Clause Attached To The Performance:

According to Article 179/2 of the TBK; “if the penalty is agreed for the failure to perform the debt at the specified time or place, the creditor may also request the execution of the penalty along with the actual debt, unless he has expressly waived his right or accepted the performance without reservation.”According to this provision, a decision may be made against a party that does not perform the debt set out in the contract as necessary on the spot or on time, both to perform the debt and to pay the agreed penalty condition. If there is a clear provision in the contract, it is liable to pay this attached money due to the Penal Clause attached to the performance.(TBK= Turkish Code of Obligations)