La reduction de la peine excessive en droit Turc

The reduction of excessive penalty, as our thesis subject, appears as the instrument which is regulated by the lawmaker with the aim of preventing the exploitation of the weak party and establishing a fair balance between the assets of the parties due to the fact that the penalty amount determined by the most frequently used penalty clause in practice is high and therefore is incongruous with the justice and equity. There is no criterion on the determination of excess in the law. When considered the doctrine and judicial precedents, the followings can be regarded as the criteria to be used for the determination of excess; the contract term and nature, the debtor's fault, the losses incurred by the creditor due to the breach of contract, the common fault of creditor, the interest balance between the parties, the degree of fault, the contractual superiority of parties, the economic condition of parties, the effect of debt on the economic freedom of parties, the situation of the parties in determining the penalty clause, interest desired to be achieved via the penalty clause, in other words; the function of penalty clause in the contract. The judge must determine whether the penalty is excessive or not in accordance with the principles of justice and fairness. It should not be forgotten that the main rule is freedom of contract in reducing the penalty and also the exceptional power concerning the reduction must be used moderately by the judge.