Weakness of performance

Article 98 of the TCO grants the other party the right to refrain from the performance of its obligation and, if certain additional conditions are met, the right to rescind the contract if the other party's rights are endangered due to the inability of one of the parties to perform its obligation in a synallagmatic contract. This provision is among the general provisions of the TCO regarding performance, and therefore, it is one of the provisions that can be applied to private law relations with reference to Article 5 of the TCC. The concept that constitutes the essence of the provision is the concept of weakness of performance. This concept is also the main concept addressed in this study. Since the general provision regulating this concept is Art. 98 of the TCO, this provision has been the main binding regulation used in the discussion of the concept. Within this framework, two main problems are tried to be analyzed in this study. The first main problem is the problem of defining the weakness of performance. The approach to this problem, which is predominantly given in the legal doctrine that the weakness of performance is the insolvency (the debtor's continuous and general deprivation of the means of payment), is criticized within the framework of Art. 98 of the TCO with its two variations and based on this provision. Instead of this approach, an approach based on the concept of the power of performance is proposed and the concept of the power of performance is tried to be understood by considering that the Legislator regulated the incomplete state of the power of performance with the name of "weakness of performance" in Art. 98 of the TCO. Accordingly, the power of performance is defined in its most general form as the legal and/or economic power of the debtor to fulfill its unique obligation. Weakness of performance is considered as a concept that expresses the situations where this power is not complete. The second main problem addressed in the study is the problem of how Art. 98 of the TCO, which is the main provision regulating this concept, yields outcomes in the face of other existing provisions, after the singular understanding of the weakness of performance. This problem is addressed as a whole in the third part of the study, and the legal consequences of the beforementioned provision on a wide range of issues, from various types of contracts to cases of non-performance of obligations, are emphasized. As seen, this main problem contains many sub-problems within itself. These sub-problems are sometimes evaluated independently of each other. Therefore, the main argument defended in this study is that weakness of performance (within the meaning of the CEB) is not an equivalent concept to insolvency; it is the lack of full capacity to perform, which indicates the legal and/or economic capacity of the debtor to fulfill its obligation. The justification for this view is made on the grounds of Art. 98 of the TCO and the relevant provisions of the CEB. In addition to this opinion reached while solving the first main problem, many sub-problems that arise while addressing the second main problem and many opinions based on this opinion are also included in the study.