Penal Terms And Types
Penalty Clause :
If the parties have agreed that the non-complying party will pay a certain amount of money if the parties do not comply with the terms of the contract at all or do not comply as required, a penalty clause is mentioned. Unlike compensation, the penalty clause does not require the occurrence of damage. If the other party has suffered a loss, it may also request this. The parties may freely decide the amount of the penalty clause. The penal clause may appear in three ways:
-Optional Penalty Clause:
Pursuant to Article 179/1 of the TCO; “If a penalty is agreed for non-performance of a contract, the creditor may demand the performance of either the obligation or the penalty, unless otherwise agreed in the contract.” Accordingly, if the parties have not agreed otherwise, the penalty clause is an “optional penalty” and the creditor who is entitled to the penalty clause may use one of the rights to demand the performance of the penalty clause or the performance of the performance agreed by the contract.
-PENALTY CLAUSE THAT PREVENTS PERFORMANCE/REVOCATION CLAUSE:
Here, there is no penalty clause in the real sense. Because the penalty clause protects the interest of the creditor. However, the debtor has the right to return from the contract by paying a certain amount of money. Unlike the optional penalty clause, the creditor does not have the right of choice here, he cannot demand performance, he can only demand the penalty clause.
-Penalty clause attached to performance:
According to Article 179/2 of the TCO; “If the penalty is agreed for non-performance of the debt at the specified time or place, the creditor may demand the performance of the penalty together with the principal debt, unless the creditor has expressly waived his right or accepted the performance without reservation.” Pursuant to this provision, an agreement may be made against the party who fails to fulfil the obligation specified in the contract properly or on time, both to fulfil the obligation and to pay the agreed penalty condition. If there is an explicit provision in the contract, the party shall be obliged to pay this additional money due to the penal clause attached to the performance.
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