Penal Clause in Türkish-Swiss law

The penalty clause had been settled at between articles 179 and 182 of the Turkish Code of Obligations; as for Swiss Code of Obligations, the penalty clause had been settled at between articles 160 and 163 of this code. The purpose of the penalty clause institution are to make certain of the performance of the primary obligation putting pressure on the debtor in the matter of performance or rightly performance of the present primary obligation and also to make certain of discharge of the contingent damages of creditor in cases of not performance or not rightly performance. Although there are many similarities between the penalty clause institution and a lot of institution and notion, the penalty clause has different qualifications and legal consequences differ from these. For example, the penalty clause is different from the bargain money and the forfeit money which had been jointly settled at the third division of the fourth chapter entitled "Special Cases in the Debtor-Creditor Relationship" of the first part entitled "General Provisions" of the Turkish Code of Obligations No. 6098, from alternative obligation, from right of option, from contingent liability, from lump sum indemnity, from punitive damages, from unreal penalty clause, from moratory interes and from a lot of institution and notion which have similarity specialities that the penalty clause has. To talk about the existence of a penalty, it is first necessary to have a current and valid primary obligation secured by the penalty clause. It is necessary to have a separate performance as penalty clause in addition to this primary obligation. As it is seen, the penalty clause is an accessory consideration and claim. The penalty clause will depend on the legal fate of the primary obligation until the penalty clause is due. When the penalty clause is due, it acquires a separate claim and debt quality. In order to mention that the penalty is due, as a rule; the primary obligation must be due, the primary obligation should never be fulfilled or not performed as required, the debtor should be in the wrong about the breach of the primary obligation attached to the penalty clause. As it is seen, in order for the penalty clause to be due, it is not necessary for the creditor to incur any damage due to a breach of the obligation. This fact has already been clearly prescribed by law (Swiss Code of Obligations, Article: 161/I-Turkish Code of Obligations, Article: 180/I). However, if the damage which creditor suffers by breach of the primary obligation is farther than amount of the penalty clause, creditor can claim the compensation which is farther than amount of the penalty clause proving the debtors fault and the existence of the damage (Swiss Code of Obligations, Article: 161/II-Turkish Code of Obligations, Article: 180/II). The penalty clause performance may be anything other than money or money, provided that it has a financial value, and this debt obligation can be determined by multilateral legal transactions (contracts, association statutes, company contracts, etc.) or exceptionally by unilateral legal transactions. However, it is necessary that the penalty clause performance should be determined by an inter-alives transaction. Furthermore, the parties have the right of free determination of the amount of the penalty clause (Swiss Code of Obligations, Article: 163/I-Turkish Code of Obligations, Article: 182/I). However, this freedom of the parties is limited by the liability of the reduction the excessive penalty clause and this liability is settled by law for judges (Swiss Code of Obligations, Article: 163/III-Turkish Code of Obligations, Article: 182/III). Having looked at the provisions related to the penalty clause, it is understood that two different types of penalty clause have been written actually. These are the alternative penalty clause and the penalty clause that is added to the performance. If a penalty clause is decided for cases of not performance or not rightly performance, unless otherwise agreed, the creditor claims either the performance of the primary obligation or the performance of the penalty clause; there is a alternative penalty clause (Swiss Code of Obligations, Article: 160/I-Turkish Code of Obligations, Article: 179/I). If a penalty clause is decided for situations which is not performance at the time or place specified in the contract, unless creditor's express abdication or unless creditor's acceptance the primary performance without reservation, the creditor may claims both the performance of the primary obligation and the performance of the penalty clause; there is a penalty clause that is added to the performance (Swiss Code of Obligations, Article: 160/II-Turkish Code of Obligations, Article: 179/II). In the relevant provision that mentions these two types of penalty clause, it is stated also that the debtor has a right to prove that he/she is authorized to terminate the contract by performing of the penalty (Swiss Code of Obligations, Article: 160/III-Turkish Code of Obligations, Article: 179/III). Although this institution that is named as resolution penalty by us, is arranged along with types of penalty clause, nevertheless the resolution penalty is different from the penalty clause.