Question 1. Please provide clarification of the discussions at the hearing relative to the relevance or irrelevance of the Notice to Correct and the 14 day ‘grace period’ referred to in that Notice, including (1) whether the issuing of such a Notice would prevent a termination under a different provision to Conditions clause 15.2(a); and (2) the significance of the issue by SYE of a response to the Notice to Correct in the form which SYE sent on 30 May 2008.…

Whether or not there is any response to the Notice to Correct, it is open to M to…

Furthermore, if there is a response rejecting the issues raised in the letter after…

“If the contractor fails to commence works in a timely manner or delays the work in violation of the contract conditions or if the delay occurring outside the contractor’s fault does not allow the contractor to complete the work in a given period despite all estimations, the employer may terminate the contract without having to wait for the time appointed for delivery.”…

Question 2. What is the correct legal analysis in Turkish law of the factual circumstances regarding M’s non insistence upon (1) SYE’s provision of the details of their full engineering team, in terms of clause 5b of the SYE Contract; and (2) therefore, of the provision for M’s subsequent approval of such; but rather M’s allowance that the contract proceed on the basis that the Effective Date had occurred.…

Question 4. Please expand upon your explanation of M’s entitlement to its claim for loss of margin, under the first limb of clause 15.4(c), with reference to recovery of positive damages or otherwise, including your explanation of the relevance or irrelevance (in the particular circumstances of the SYE termination) of cases referred to by SYE’s legal representatives during the hearing.

In the Turkish law system, positive damage is described as follows: …

“In the permanent contract relations we mentioned that termination of the contract retrospectively is not in question and on the contrary, termination of the contract prospectively is in question. … The creditor, upon the termination of the contract will claim his positive damages from the debtor who is in default by his fault. This positive damage is the loss of benefit upon termination of the permanent relationship before its term.”…

“… The general section of the Code of Obligations mostly reflects the rules pertaining to contract relations with instantaneous performance. In particular, the regulation related to the debtor’s default and retrospective effect of the withdrawal of the contract here (Code of Obligations: art. 106-108) renders its implementation impossible for cases of default in permanent contracts. … What generally is accepted is the existence of “termination” also here for permanent contract relations. … While the damages to be claimed upon withdrawal under article 108 is intended for compensation of “negative damage” (negative Interesse),…

Hukuki Mütalaalar Cilt 2 ( 2010-2015)

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LEGAL OPINION