The Effect Of Rescission Of A Construction Contract On Third Parties
In our country, parallel to industrialization, even faster than industrialization
The developing phenomenon of urbanization has developed the housing problem at the same pace. Since policies aimed at creating cheap labor force by crowding citizens into big cities were not accompanied by serious planning, the solution to the housing needs of large masses was left to its own devices.
This practice has led to squatting on the one hand and unplanned urbanization on the other. Housing projects implemented by the state were initially non-existent and are now insufficient. Moreover, not only in big cities but also in Anatolia, the mode of production is shifting from agriculture to industry, and in parallel with this, even in small cities, there is a massive migration from rural to urban areas. In small cities, the state’s mass housing projects are not being implemented. Thus, the solution to the housing problem is left to the market without any plan. To solve this need, the market has turned to apartment-type construction.
prioritized, thus, construction by contractors started. The supply of land to meet this need was left to the market, with exceptions, and contractors met the need for land by pursuing vacant lots and concluding “construction contracts in return for flats” (as defined in the Civil Code, “construction contracts in return for land shares”) with their owners. Thus, the condominium
Construction contracts in return for flats and disputes arising therefrom have marked the last thirty to forty years.
The most common of these disputes is the construction contract in return for flats,
whether it is possible to rescind the contract with retroactive effect.
As is known, a construction contract in return for flat is a mixed contract. The contracts constituting the mixed contract are the “exception contract” and the “immovable sale promise contract”. The landowner is the promisor of the sale of the immovable and the contractor is the promisor of the purchase of the immovable. This
From this point of view, the contract is in the nature of a “promise to sell immovable property”. However, instead of paying money for the purchase of the immovable, the contractor will build a building on this immovable and give a part of this building to the land owner. In this respect, the contract has the characteristics of a contract of exception. The validity of this hybrid contract, where the promise of sale of immovable property is predominant
In this respect, it has been accepted that it must be in the form of an official form and must be issued by a notary public at least.
In terms of contract type, the construction contract in return for flats is considered as a sudden
are performance contracts. In other words, the parties fulfill their obligations arising from this contract at once and are released from debt; the land owner transfers the title deed to the contractor at once, and the contractor is obliged to complete the construction and deliver it to the land owner at once. From this contract, the lease agreement
As in the case of the “time widespread, recurring multiple performance obligations”, etc., do not arise. However, in particular, the contractor’s obligation to deliver the construction is an obligation that takes a long time and can be fulfilled over time. As such, the intervention of third parties during the performance of the contract, such as the purchase of apartments from the contractor even before the delivery obligation is fulfilled
phenomena are frequently encountered. Moreover, since it is de facto obligatory to fulfill the performance over time, the legal institutions to be applied in case of partial performance have created hesitation. In particular, the contractor’s default, in whole or in part, in the performance of the construction obligation
In the event of a default, it is discussed whether the landowner has the possibility to rescind the contract pursuant to CO 106-108. Because in case of rescission, the parties are obliged to return what they have received to each other. However, if a part of the construction has been built, dismantling this part will require a lot of damage. The construction left on the land will belong to the land owner. Therefore, the owner of the land, just because,
Is it correct to grant a right of return with retroactive effect based on the fact that the contract has immediate performance? Or should the landowner be given the opportunity to terminate the contract instead of rescinding the contract, as in contracts with continuous performance? As it is known, termination is a way of terminating the contract with prospective effect in continuous performance contracts. In other words, in termination, the contract remains valid until the moment of termination, and the legal consequences arise for the period after the moment of termination. The Court of Cassation has formulated this problem in an average way; it has kept the possibility of rescinding the contract with retroactive effect open as a rule; however, in cases where the nature and characteristics of the event justify it, especially in cases where the construction is
the contract may be terminated with prospective effect in the event that part of the contract has been executed
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