İFA

A. Concept

There is no definition of the concept of performance in the Turkish Code of Obligations No. 6098 (TBK). Performance is the fulfillment of the obliged act completely and accurately in terms of subject, time and place, in other words, as required (1). It is established to result in performance on the basis of every debt relationship. As a rule, performance does not terminate an entire debt relationship, but a single debt (debt in the narrow sense) in such a debt relationship (2). For example, in a lease, which is a continuous debt relationship, the debtor does not terminate the entire lease relationship by paying a single rental fee. Only the debt for that month ends.

Performance is an event that terminates (redeems) the debt and therefore the receivable, and by its nature, it is not a defense but an objection (3). For this reason, it must be taken into consideration by the judge ex officio. The parties cannot eliminate the consequences of performance by mutual agreement. However, if they want to re-establish the old debt, they can establish a new debt relationship of the same nature (4).

For proper performance, the debtor must fulfill the obligation obliged by the contract. The creditor is not obliged to accept the debt that is not fully and correctly fulfilled. However, due to freedom of will, the parties may agree that this performance, which is different from the original debt, will terminate the debt (5). If the debtor erroneously performs an act different from the one agreed upon in the contract, he may request back what he gave (TBK art. 78/1). If the creditor has accepted a performance different from the performance specified in the contract, he can return it and request performance in accordance with the debt (6).

The proper performance of the debt depends on the completeness and accuracy of the elements such as who the person performing the performance is and to whom it is performed, how, when and where it is performed, and the amount and quality of the performance (7). The completeness and accuracy of these elements are subject to TBK art. It will be determined according to the provisions generally regulating the performance of debts in articles 83 - 111. These provisions are in accordance with the Turkish Civil Code (TMK) No. 4721. It is a general provision in accordance with Article 5 and will be applied to all private debt relations to the extent appropriate (8).

In construction contracts in exchange for flats, the execution process ends with the contractor constructing the building and delivering it to the owner, and the owner receiving it and accepting it after inspecting it (9).

B. Legal Nature

Another controversial issue is that if the action of the compensation debtor also constitutes a crime, the insured may request compensation for his damage by filing a personal lawsuit before the Criminal Court or participating in a public lawsuit, during the continuation of the criminal case. Can the insurer that pays the insurance compensation take advantage of the powers granted by the TCK and the CMK to the person injured by the crime through subrogation and file the recourse case in criminal courts instead of civil courts? In the doctrine, OMAĞ argued that the concept of crime victim should be interpreted broadly and that there is no harm in including the insurer within its boundaries.

The first of these sözleşme görüşüAccording to this view, performance is a kind of contract. If the debtor proposes the performance of the debt to the creditor and the creditor accepts this proposal, a performance contract is established. In order for the performance to have effect and result, both the material fulfillment of the act and the legal agreement of the parties' wills in this regard are required (10).

The second view, which is opposite to the first view, argues that performance is a material act that terminates the debt. material verb opinionAccordingly, it is sufficient for the debtor to satisfy the creditor by performing the actions necessary to fulfill his debt, and there is no need to agree on performance or declare his will. According to the opinion, since the performance consists of a material act, the parties do not need to have the capacity to act and the authority to dispose (11). This view has been supported by some authors in the doctrine (12).

The third and last view prevailing in Turkish Law is limited contract viewThe limited contract view includes both views depending on the subject of the performance. Accordingly, the performance of some acts depends on the establishment of a contract between the creditor and the debtor, while others depend only on the realization of a positive or negative material action. In cases where a material act must be performed for performance, it is sufficient to fulfill the act subject to performance, regardless of the parties' capacity to act and dispose. However, if the act subject to performance is to be fulfilled by the realization of a legal transaction, the parties must agree on this issue, even if implicitly. In addition, the parties must have the capacity to act and the authority to dispose (13).

C. Concepts of Delivery, Receipt and Acceptance

1. Delivery

Although the obligation to deliver is not explicitly mentioned in the TBK, since the concept of delivery is mentioned in many provisions regarding the work contract (TBK art. 473/1, 474/1, 478/1, 479/1, 483/1), this obligation is implicitly accepted by the legislator in the doctrine. It was concluded that it was (14). The land owner wishes to have independent sections for his/her share by constructing the building with a construction contract in exchange for flats. Since this benefit will be achieved through the delivery of the contractor, the obligation to deliver the building is a primary obligation of the contract (15). don't surrender, Although the obligation to deliver is not explicitly mentioned in the TBK, since the concept of delivery is mentioned in many provisions regarding the work contract (TBK art. 473/1, 474/1, 478/1, 479/1, 483/1 ), this obligation is implicitly accepted by the legislator in the doctrine. It was concluded that it was (14). The land owner wishes to have independent sections for his/her share by constructing the building with a construction contract in exchange for flats. Since this benefit will be achieved through the delivery of the contractor, the obligation to deliver the building is a primary obligation of the contract (15). don't surrender, (16).

Completion of the building does not mean that it has been delivered. Completion and delivery are separate concepts (17). If the thing subject to the work contract is moved, the possession of the completed work is transferred to the owner for the purpose of performance and the delivery takes place by removing the things that hinder his control over the work (18). However, if the subject of the work is a real estate, as in construction contracts in exchange for flats, the owner of the work already has actual control over the work; Delivery will be completed when the contractor expressly or implicitly declares that the work has been completed (19). According to the dominant view in the doctrine, there is no need for the employer to show a special will to receive delivery. Delivery is completed when the completion notification reaches the job owner (20).

The contractor must notify the owner that the building has been completed and also provide the opportunity to establish actual sovereignty over the independent sections. Otherwise, delivery will not take place as the owner will not be able to maintain sovereignty in a building where the keys are not given and the scaffolding is not dismantled (21). Situations that may seem insignificant and do not prevent the owner from benefiting from the completed building, such as the contractor forgetting a few small materials in the garden of the building, do not constitute an obstacle to delivery (22). On the other hand, if the owner starts using the completed structure without notifying the contractor, he cannot escape the legal consequences of delivery and cannot raise the objection that notification was not made (23).

For a valid delivery, the work subject to the contract must be completed in its entirety (24). Even if the owner has started to use the structure that has not yet been completed, this does not mean that the delivery has been completed (25). However, the owner's starting to use the building constitutes a presumption that the delivery obligation has been fulfilled, and the burden of proof to the contrary falls on the business owner (26). The Supreme Court accepts the criterion for the building subject to the contract to be considered completed as "being usable within objective standards and for the purpose" (27). What actions must be performed in order for the work subject to the contract to be considered completed will be determined by the interpretation of the parties' compatible statements of intent (28). In case of dispute, the judge will reach the interests that the parties want to achieve through the contract and the actions in line with these interests by interpreting them in accordance with the principle of trust (29). Since the contractor's attempt to deliver an incomplete or partially completed structure to the client will not constitute a valid performance, the client may refrain from receiving it (30). On the other hand, if an insignificant and secondary deficiency in the whole structure is claimed by the owner as an abuse of right, the structure should be considered completed (31).

The contract parties may determine a rule different from the law regarding the delivery of the work (32). For example, the parties may condition the delivery on the receipt of occupation of the building, the transfer of the keys, or the result of the inspection to be carried out by the parties or a third party. Apart from this, the parties may also agree to deliver the building in parts (33).

2. Receiving (Receipt)

According to the prevailing view in Turkish/Swiss law, the concepts of delivery and receipt in work contract law are essentially the same legal event and are named differently for different parties of the contract (34). Surrender means the delivery of the real estate from the perspective of the contractor; Receiving is a concept that explains it from the perspective of the business owner (35). The contractor's delivery of the work and the owner's receipt of the work are not consecutive stages, but occur simultaneously (36).

Since the concept of receiving, which describes the view of the concept of delivery by the business owner, essentially refers to the same moment, in construction contracts in return for flats, it will take place when the contractor notifies the owner of the completed structure and the owner determines that the building has been completed upon notification, and the delivery obligation will be fulfilled (37).

In Turkish and Swiss law, taking delivery of the building subject to the contract is a debt, not an obligation, for the business owner, different from German law (38). If the completed structure, which has no defects identified by a complete and proper inspection by the contractor, is delivered to the owner for execution, the owner is obliged to take delivery of the building. Otherwise, if the building is not delivered on time, the owner may fall into creditor default (39).

It is controversial in the doctrine whether the owner can avoid taking delivery if the building is completely completed but defective. According to one view (40), the fact that the completed structure is defective (even if it is significant) does not, as a rule, give the owner the right to refrain from receiving it. If the owner refrains from taking delivery of the building due to defects, creditor default occurs. The owner who receives a defective building can only take liability provisions against the contractor due to the defect. According to the other opinion (41), which we also agree with, the owner is not obliged, as a rule, to receive the defective structure. However, in order for the business owner to refrain from taking delivery of the building, the defect in question must be of a certain degree of importance in accordance with the rule of honesty (TCC Art. 2) (42). Önemli ayıp ise iş sahibinin eseri kullanamayacak veya eseri teslim almasının kendisinden beklenemeyecek derecede önem arz etmesidir (43).

As soon as the contractor fulfills his debt, the owner's inspection and reporting begins, the statute of limitations for the product begins for the exercise of his rights arising from the defect, and some important legal consequences arise, such as wage debts becoming due (44).

3. Acceptance

Acceptance is a unilateral declaration of will that the building completed and delivered to the employer by the contractor is deemed to be in accordance with the contract and free of defects (45). The employer notifies the contractor with a statement of acceptance that he has accepted the structure in its current state and that he will not make any claims regarding defects in the future (46). When the employer expressly or implicitly expresses his/her will to accept, the contractor is deemed to be freed from liability for some defects, and on the other hand, the employer is deemed to have renounced his rights arising from defective performance (47).

Accepted, TBK art. In accordance with Article 477, a completed structure is accepted by the owner and the contractor ends its liability for defects in the structure, so it comes after delivery and receipt in terms of time (48).

Since the declaration of acceptance is one-sided, the contractor's approval is not required for the consequences of acceptance to arise (49). The employer cannot unilaterally withdraw the declaration of acceptance after the contractor learns about it (50).

TBK art. where the concepts of delivery and acceptance are different from each other. It is understood from the expression 477. Delivery refers to the starting point of the contractor's responsibility for the defect and the employer's rights regarding this. Acceptance is the statement that the employer accepts the structure as being executed in its current state, regardless of whether it is defective or not, and that the contractor will not be held responsible due to the defect (51). Delivery is a condition of birth that enables the business owner to exercise his rights arising from warranty against defects (52). Acceptance means the termination of the possibility of using these rights.

INCOMPLETE PERFORMANCE

A. Definition

The primary actions of the contractor in the construction contract in exchange for flats are to complete the building in accordance with the contract and its annexes and to deliver the parts falling to the owner's share on time without any defects. In case of violation of the contract or the rule of honesty in the delivered structure, there will be incomplete performance or defective performance.

Many different definitions of missing work have been made in the doctrine. BÜYÜKAY stated that if all the work owed according to the work contract is not completed, additional work will be mentioned (53). According to ERMAN, incomplete performance is the failure to carry out some or all of the works included in the technical specification, or the failure to carry out the manufacturing that should be present in a medium-level construction even though it is not included in the technical specification (54). The technical specifications agreed as an annex to the construction contract in exchange for flats are considered as evidence contracts and must be taken into consideration by the court ex officio (55). Similarly, ŞENOCAK stated that if all the acts owed within the scope of the work contract are not completed, there will be incomplete performance. (56). On the other hand, incomplete performance is defined as the performance of some of the works agreed upon by the contracting agreement or for which the condition of honesty must be met (57). According to AYAN, incomplete performance is the change of work undertaken by the contractor under the contract or the legal provisions, and some of the additional works have not been carried out at all (58). KURT stated that incomplete performance can be mentioned when it is necessary to produce a new work to complete the work (59). AVCI, even if the floor certificate signed by the parties is not specified in the construction contract, ensuring that the productions that should be done in a normal construction are not carried out at all is defined as incomplete performance (60).

In its decisions, the Supreme Court “incomplete performance” “incomplete work” olarak isimlendirmiş ve "The work that was not completed completely although it was agreed to be done according to the contract and its annexes" defined it as (61). In another decision "...In work contract relations, incomplete work is the work (work) where the work is not done in the amount shown in the contract and its annexes and the project, or some of the productions that were agreed upon or required to be done due to the nature of the work have not been done and the current state of which is accepted by the employer." defined it as (62). In other decisions, he defined incomplete work and incomplete performance as separate concepts (63). However, the doctrine disagrees with the opinion of the Supreme Court on the grounds that this distinction has no legal basis (64).

In our opinion, after all these definitions eksik ifa, the contractor does not carry out the works agreed to be done in the mutually concluded contract or additionally, or the works that should be of a normal nature in accordance with the rule of honesty are not carried out, even if they are not included in the contract (65).

B. The Problem of Whether Delivery Will Be Realized in Case of Incomplete Performance

There is no provision in TBK No. 6098 regarding the delivery of the work in case of incomplete performance. For this reason, it has been widely discussed in the doctrine whether a valid delivery can be considered if the structure is incomplete, in other words, incomplete. According to the prevailing view in Turkish-Swiss law, delivery takes place when the contractor, who has fully fulfilled all his obligations in the contract, leaves the completed structure to the use of the owner (66). If there is a deficiency in the built structure, as a rule, delivery will not be completed even if the owner actually takes delivery of the building (67). 

This main rule stated in accordance with the opinion has two exceptions arising from the honesty rule. Firstly, if the deficiency in the structure is very insignificant, it would be against the rule of honesty to claim that the delivery has not been made, and in case of the existence of an insignificant deficiency, the delivery obligation will be deemed to have been fulfilled (68). For example, claiming that the delivery was not made because a single chandelier in the building was not installed is incompatible with the rule of honesty. The second exception is when the contractor creates a justified trust worthy of protection in the contractor that the employer accepts the incomplete performance upon his will to deliver the incomplete structure. In case such a trust exists, the owner cannot claim that the delivery was not made due to deficiencies (69).

In the doctrine, Koller stated that accepting that delivery is not possible in the presence of incomplete work may create inequitable results, and in accordance with the principle of freedom of will, the explicit or implicit acceptance of the employer after the delivery of the incomplete work should be considered a valid performance (70). According to the same opinion, if the contractor notifies the owner that the building has been completed and the owner does not notify that he does not accept incomplete performance within a time appropriate to the nature of the work, he is deemed to have accepted the building in its current state (71). However, the author makes an exception: the contractor's conveyance of his will to deliver a building that is clearly unfinished to the owner will be considered as a proposal to change the content of the contract, and the owner's silence will, as a rule, be interpreted as rejecting this proposal (72).

Stating that both views have merits and deficiencies, AYAN adopted a mixed view and suggested that an interpretation should be made by looking at the importance of the shortcomings in order to eliminate the drawbacks of the two views (73). In accordance with this opinion, which we also agree with because it balances the interests of the parties, incomplete performance will be classified as insignificant, significant and moderately important deficiency and legal consequences will be imposed.

1. Minor Deficiency

The deficiency in a very small part compared to the entire structure built by the contractor in accordance with the contract minor deficiencyis (74). For example, the lack of installed taps or sockets in only one flat within the entire building can be considered a minor deficiency. If the deficiency is very small and insignificant compared to the completed work, the employer's failure to accept the delivery as performance would be contrary to the rule of honesty, so the performance will be realized when the contractor notifies the owner of the delivery (75). If the business owner refrains from taking delivery of the building with minor deficiencies, the creditor will be in default (76). There is no need for the employer to create a justified trust in the contractor that he/she has received the building as executed in its current state (77).

2. Significant Deficiency

Major deficiencies compared to the entire structure built önemli eksiklik is counted (78). The presence of significant deficiencies makes the building unsuitable for delivery. So much so that even if the employer has actually received the building with significant deficiencies, it cannot be said that the delivery has taken place legally (79) and there is no need for the employer to make a reservation in order to make a claim against the contractor (80). Significant deficiencies are those in which the owner cannot be expected to accept the performance in accordance with the rule of honesty, considering the volume of work, the quality and quantity of the missing works, and the current state of the building and its intended purpose of use (81). If there are significant deficiencies, the employer may request TCO Art. He/she can exercise the optional rights stated in Article 125, or use the general provision TCO art. 113 or the special provision TBK art. Based on the provisions of Article 473/2, the building can be completed by a third party at the expense of the contractor (82).

3. Moderately Significant Deficiency

Deficiencies that do not make it impossible for the business owner to use the building, but affect his ability to benefit from the building, are deficiencies of moderate importance (83). In case of moderate deficiency, delivery occurs when the employer does not refuse to accept delivery, in other words, expressly or implicitly declares that he accepts the delivery as performance (84). If, after the contractor notifies the delivery of the building, the owner remains silent about the deficiencies clearly visible during the delivery, does not object to the contractor leaving the construction site, or settles in or uses the house, the contractor's confidence that the building has been received in its current state will be maintained (85). Even in this case, the employer may be liable to the contractor due to incomplete performance, Art. It does not prevent him from claiming compensation pursuant to Article 112 (86). If the owner accepts the building with reservations, the owner may exercise his rights against the contractor arising from the non-fulfillment of the debt, in other words, he may cause the contractor to default (87).

In the doctrine, it has been claimed that in cases where there is a moderately significant deficiency, if the owner's use of the structure without reservations regarding the delivery is due to necessity, there will be no valid delivery due to the balance of interests (88).

DEFECTIVE PERFORMANCE

Defect is the absence of the qualities agreed upon in the construction contract in exchange for flats, the necessary qualities that must be present in the building in accordance with the rule of honesty, even if they are not agreed by the contract, in the independent sections and common areas of the building delivered by the contractor, or the benefit expected from the building is not met at all or as required (89).

Since every defective building lacks a quality that must be present according to the construction contract in exchange for flats, the defect also means breach of contract. The contractor's delivery of a defective structure to the employer does not put him in default; it means that he has not fulfilled his debt properly (bad performance) (90). The fact that the constructed structure is defective is a relative concept as it relates to the violations of the contract in the concrete case, and in each concrete case, the qualities that the building actually has and the qualities agreed in the contract should be compared and taken as a basis to determine what kind of structure the employer would be justified in expecting, in accordance with the content of the contract and the rule of honesty (91). .

SOURCE

1. Eren, Fikret, Law of Obligations General Provisions, 25th Edition, Yetkin Publications, Ankara 2020, p. 1020; Oğuzman, Kemal/Öz, Turgut, Law of Obligations General Provisions (Volume I), Updated and Expanded 18th Edition, Vedat Kitapçılık, İstanbul 2020, p. 265; Von Tuhr, Andreas, Law of Obligations 1 – 2 (Trans. Edege Cevat), Supreme Court Publications, Ankara 1983, p. 458; Antalya, Gökhan, Law of Obligations General Provisions (Volume III), Extended 2nd Edition, Seçkin Yayıncılık, Vol. V/1, 3, Ankara 2019, p. 42; Cansel, Erol/Özel, Çağlar, Law of Obligations General Provisions, Updated 2nd Edition, Seçkin Yayıncılık, Vol. 1, 2017, p. 231; Ünlütepe, Mustafa, Law of Obligations General Provisions, Seçkin Publishing, Ankara 2021, p. 217.
2. Eren, p. 1021; Oğuzman/Öz, Volume I, p. 265, no. 868; Antalya, Volume III, p. 43; Ünlütepe, p. 217; Cansel/Özel, p. 235.
3. Serozan, Rona, Law of Obligations General Section, 7th Revised Edition, Filiz Kitabevi, Volume III, Istanbul 2016, p. 8; Eren, p. 1022; Von Tuhr, p. 457 – 458.
4. Eren, s. 1022.
5. Cansel/Özel, p. 231 – 232; Antalya, Volume III, p. 42. The parties to the contract may accept as performance the performance of an act other than the one owed after the conclusion of the contract, but before or at the time of performance. ifa yerine edim (datio in solutum) denilmektedir. Detaylı bilgi için bkz. Ünlütepe, s. 218; Cansel/Özel, s. 237 – 238; Eren, s. 1032; Von Tuhr, s. 469 – 471; Serozan, s. 90 vd. İfa uğruna edim kavramı için ayrıca bkz. Eren, s. 1033 – 1034; Cansel/Özel, s. 238; Ünlütepe, s. 218; Von Tuhr, s. 471 – 472; Serozan, s. 93 vd.
6. Cansel/Özel, s. 231; Von Tuhr, s. 458.
7. Eren, p. 1020; Tekinay, Selahattin Sulhi/Akman, Sermet/Burcuoğlu, Haluk/Altop, Serpil, Law of Obligations General Provisions, Revised and Expanded 7th Edition, Filiz Kitabevi, İstanbul 1993, p. 758.
8. Eren, s. 1021; Ünlütepe, s. 217.
9. Aldemir Toprak, İpek Betül, Turnkey Construction Contract, Seçkin Publishing, Ankara 2020, p. 156; Selici, Özer, Contractor's Responsibility in Construction Contracts, Faculties Printing House, Istanbul 1978, p. 35.
10. Antalya, Volume III, p. 48 – 49; Eren, p. 1023; Serozan, p. 15. The contract view consists of three views: classical contract, real contract and the one that considers the debtor's will to perform as sufficient. For detailed information about opinions, see. İnceoğlu, M. Murat, Legal Nature of Performance and the Problem of Whether the Debtor's Action in Compliance with Performance Will Constitute Performance, AÜHFD, Vol. 54, P. 4, Ankara 2005, p. 150 – 151.
11. İnceoğlu, s. 151 – 153Eren, s. 1024; Antalya, Cilt III, s. 49 – 50; Serozan, s. 15.
12. Tekinay/Akman/Burcuoğlu/Altop, s. 760 – 761; Serozan, s. 16; İnceoğlu, s. 181 – 182.
13. İnceoğlu, s. 154 – 158; Eren, s. 1024 – 1028; Serozan, s. 15; Antalya, Cilt III, s. 50 – 51.
14. Tandoğan, Haluk, Law of Obligations Private Debt Relations, 5th Printing, Vedat Kitapçılık, İstanbul 2010, p. 124; Kurt, Leya Müjde, Contractor's Default in the Delivery of the Work, Yetkin Publications, Ankara 2012, p. 67; Turanboy, Asuman, Contractor's Liability for Deficiencies and Defects in Construction After Delivery, According to the Supreme Court Decisions, AÜHFD, Vol. 41, P. 1, Ankara 1990, p. 154; Ozanoğlu, Hasan Seçkin, Exception and Penalty Clause (Delay Penalty) Records Added to the Performance Due to the Contractor's Delay in Delivery of the Work, Especially in Construction Contracts, AHBVÜHFD, Vol. 3, P. 2, Ankara 1999, p. 62; Altaş, Hüseyin, The Work Was Destroyed Before Delivery, Yetkin Publications, Ankara 2002, p. 42 – 43; Erman, Hasan, Construction Contract in Exchange for Land Share, Revised 3rd Edition, Der Publications, Istanbul 2010, p. 33; Yavuz, Cevdet, Law of Obligations (Special Provisions), Updated and Renewed 13th Edition According to the Turkish Code of Obligations No. 6098, Beta Publishing House, Istanbul 2014, p. 556; Yakuppur, Sendi, The Contractor's Obligation to Deliver the Work and Its Contraventions with the Delivery Obligation in the Work Contract According to the Code of Obligations, Oniki Levha Yayınları, İstanbul 2009, p. 64; Package, Sabure, Acceptance in the Performance of the Work Contract, Yetkin Publications, Ankara 2020, p. 65.
15. Atamulu, İsmail, Termination of the Construction Contract in Exchange for Flats Due to the Contractor's Default, Yetkin Publications, Ankara 2014, p. 65. “Eser sözleşmelerinde yüklenicinin temel borcu bir eser meydana getirmek (somut olayda arsa payı devir karşılığı inşaat yapmak) ve meydana getirilen eseri sözleşmede kararlaştırılan zamanda sözleşme şartlarına uygun olarak arsa sahibine teslim etmektir.” Yargıtay 15. HD, K.T: 21.06.2004, 2003/6321 E., 2004/3464 K. (https://legalbank.net/arama/mahkeme-kararlari, E.T: 02.11.2021).
16. Şahin, Turan, Contractor's Default in Performance of the Work Delivery Obligation in the Work Contract, Seçkin Yayıncılık, Ankara 2012, p. 48. For other definitions made in the doctrine, see. Şahin, p. 47.
17. Erman, s. 33
18. Tandoğan, s. 125; Turanboy, s. 154; Paket, s. 81.
19. Tandogan, p. 125; Turanboy, p. 154; Package, p. 84, 89; Ozanoğlu, p. 64; Erman, p. 34; Wolf, p. 68; Kocaağa, Köksal, İnşaat Contract, Yetkin Publications, Ankara 2014, p. 121. If the contractor completes the building in a way that the land owner can see and leaves it so that the land owner can dispose of it, an implicit notification can be mentioned. See Tandogan, p. 125; Erman, p. 34. In the doctrine, some authors state that delivery will occur when the contractor completes an immovable work completely and leaves the work under the control of the employer; He argued that notification of completion should only be made in cases of necessity. See Selici, p. 37; Altaş, p. 86; Öz, Turgut, The Owner's Revocation of the Work Contract, 2nd Copy Edition of the Doctoral Thesis Dated 1989, Aristo Publishing House, Istanbul 2021, p. 309; If the contractor completes the work and accepts surrender in the form of implicit notification to abandon his actual sovereignty over the land without notice; In cases where it is justified for the employer to learn of this abandonment late, due to the circumstances of the concrete case and the rule of honesty, it must be accepted that the delivery took place as soon as the employer learned about it. See Ayan, p. 53, no. 155; Altaş, p. 86; Package, p. 94. If the building subject to the construction contract in exchange for flats is built on the contractor's land, delivery, as a rule, takes place together with registration. See Altaş, p. 86; Oz, p. 308; Kocaaga, p. 122; Package, p. 95 – 96; Ayan, Serkan, Contractor's Default in Construction Contract, Seçkin Publishing, Ankara 2008, p. 52, no. 149.
20. Package, p. 85, 89 – 90; Altaş, p. 84; Ayan, p. 52; Turanboy, p. 154. In the constructions carried out by the contractor on the land belonging to the contractor, delivery, as a rule, takes place with the registration of the independent sections in the title deed to the employer. See Altaş, p. 86; Ayan, p. 52, no. 149; Selici, p. 8; Uçar, Ayhan, Contractor's Warranty Obligation Against Defects in Exception Contract, Seçkin Yayıncılık, Ankara 2003, p. 92.
21. Tandogan, p. 125 – 126; Erman, p. 34; Ayan, p. 52; Ozanoğlu, p. 64; Yakuppur, p. 65 – 66. As a rule, the expenses of works such as dismantling the scaffolding or handing over the keys so that the employer can establish his sovereignty belong to the contractor. See Kocaaga, p. 121 – 122.
22. Öz, s. 311; Ayan, s. 53.
23. Tandogan, p. 126; Dayınlarlı, Kemal, Provisions and Consequences of Default of the Contractor and Owner in the Exception Contract, 4th Edition, Dayınlarlı Hukuk Yayınları, Ankara 2008, 50 – 51.
24. Kocaaga, p. 118; Uçar, p. 103; Ozanoğlu, p. 62 – 63; Turanboy, p. 154; Yakuppur, p. 64; Eren, Fikret, Contractor's Debts in Construction Contracts and the Consequences of Failure to Fulfill These Debts, Construction Contracts, Joint Seminar for Managers - Operators, Engineers and Lawyers (Article), 2. Same Edition, Ankara 2001, p. 72. “As a rule, a work to be built can be delivered after it is completely completed (H. Tandoğan – Debts Law vol. II, p. 73). The duty of warranty against defects may also arise if the work is actually and completely delivered. In the same line, both the Supreme Court of Appeals and the Swiss Federal Court have accepted that it is not possible to deliver and receive a work that has not yet been completed or is incomplete (EGE. 25.11.967, 94.11.161, H. Tandoğan, supra p. 73. Footnote 143 and Yg. 15). . H.D. 7.4..975 T. 3012 – decision no. 1891). In that case, only the completed work can be the subject of delivery debt. The phenomenon of completion occurs when it is determined that the work is usable for its purpose within objective measures. In the next stage, the possession of the work is transferred to the owner and it is determined that the owner has actual control over the work, which means legal delivery.” Yargıtay 15. HD, K.T: 13.11.1984, 1984/1074 E., 1984/3475 K. Karar için bkz. Kostakoğlu, Cengiz, İçtihatlı İnşaat Hukuku ve Kat Karşılığı İnşaat Sözleşmeleri, 9. Baskı, Beta Yayınları, İstanbul 2015, s. 578
25. Tandoğan, s. 126; Kocaağa, s. 118; Yakuppur, s. 66.
26. Erman, p. 34; Wolf, p. 69; Ayan, p. 81. As a rule, the burden of proving that the building has been completed and delivered in accordance with the contract lies with the contractor. See Wolf, p. 69; Ayan, p. 81; Yakuppur, p. 67. “In relationships based on a work contract, the contractor has the obligation to prove that the work has been delivered, and the obligation to prove that the work is defective and that the price has been paid is on the employer.” Yargıtay 15. HD, K.T: 30.5.2013, 2012/5906 E. 2013/3519 K. (https://legalbank.net/arama/mahkeme-kararlari, E.T: 11.11.2021)
27.  “Accordingly, the completion of a work is possible by determining that the work can be used for its purpose within objective measures. Unless the contractor does this, the employer cannot be held liable for a defect notice. In other words, the contractor cannot benefit from the obligation to report defects unless he completes and delivers the work legally and practically.” Yargıtay 15. HD, K.T: 17.11.1986, 1986/830 E., 1986/3860 K. (https://legalbank.net/arama/mahkeme-kararlari, E.T: 03.11.2021). Kocaağa, s. 119; Uçar, s. 103.
28. Uçar, s. 103.
29. “As a rule, a work to be manufactured and constructed can only be delivered after it is completely completed. The duty of warranty against defects may also arise if the work is actually and completely delivered. It has been accepted by the decisions of both the Supreme Court of Appeals and the Swiss Federal Court that delivery is deemed to have been completed, meaning that all the works agreed in the contract have been completed and executed, and that a work that has not yet been completed cannot be considered as delivery and receipt. Accordingly, the completion of a work is possible by determining that the work can be used for its purpose within objective measures. Unless the contractor does this, the employer cannot be held liable for a defect notice. In other words, the contractor cannot benefit from the obligation to report defects unless he completes and delivers the work legally and practically.” Yargıtay, 15. HD, K.T: 17.11.1986, 1986/830 E., 1986/3860 K. (https://legalbank.net/arama/mahkeme-kararlari, E.T: 03.11.2021). Uçar, s. 103.
30. Kocaağa, s. 119
31. Tandoğan, s. 126; Kocaağa, s. 119; Uçar, s. 103; Turanboy, s. 155; Yakuppur, s. 66.
32. Tandoğan, s. 127; Ozanoğlu, s. 64; Yakuppurr, s. 67; Paket, s. 95; Erman, s. 35.
33. Tandoğan, s. 127.
34. Uçar, s. 90; Ayan, s. 50; Tanoğan, s. 127; Uçar, Ayhan, İstisna Sözleşmesinde Teslim Kavramı, Teslimin Usulü Ve Hukuki Sonuçları (Makale), AÜEHFD, C. 5, S. 1 – 4, Y. 2001, s. 516; Paket, s. 79; Şahin, s. 49; Kocaağa, s. 120.
35. Uçar, s. 90; Tandoğan, s. 127; Seliçi, s. 35; Kocaağa, s. 120; Şahin, s. 49.
36. Uçar, s. 91; Şahin, s. 49; Kocaağa, s. 120; Yakuppur, s. 68.
37. Uçar, s. 92; Şahin, s. 51.
38. Uçar, s. 93; Şahin, s. 52; Uçar, Makale, s. 519.
39. Şahin, s. 49 – 50; Uçar, s. 91, 93; Kocaağa, s. 120.
40. Wolf, p. 68. The fact that the constructed structure is defective does not prevent it from being deemed completed and delivered. See Uçar, p. 104; Gauch, Peter, Der Werkvertag, 4. Aufl. Zürich 1996, p. 31, no: 106 (Quoted by: Ayan, p. 51). If the structure built and delivered for the purpose of execution does not coincide in any way with what was agreed in the contract, in other words, it is diametrically opposed “aliud ifa” In this case, the owner may refrain from taking delivery of the work and apply for debtor default provisions. See Wolf, p. 68 – 69. For detailed information about Aliud performance, see. İpek, Eyüp, The Rule of Proper Performance and the Legal Consequences of Violation of This Rule, Filiz Kitabevi, İstanbul 2016, p. 242.
41. Tandogan, p. 126; Oz, p. 184; Ayan, p. 51; Package, p. 117; Şahin, Turan, Contractor's Warranty Obligation against Defects within the Scope of the Code of Obligations and the New Turkish Code of Obligations No. 6098 (Article), SDÜHFD, Vol. 1. P. 2, Y. 2011, p. 137; Yener, Mehmet Deniz, The Contractor's Obligation to Warranty Against Defects in the Work Contract and the Rights of the Owner, EÜHFD, Vol. 4, No. 1, Y. 2009, p. 156.
42. Ayan, s. 58.
43. Öz, s. 187 vd.; Paket, s. 117.
44. For detailed information about the legal consequences attached to the performance of the delivery obligation, see. Uçar, p. 114 ff.
45. Tandogan, p. 217; Selici, p. 36; Oz, p. 215; Package, p. 120; Erman, p. 163; Şahin, p. 53. Regarding the fact that the declaration of acceptance is a right that creates innovation, see. Package, p. 142 – 143 et al. 434
46. Package, p. 121; Tandogan, p. 217; Erman, p. 163.
47. Paket, s. 121.
48. Ayan, p. 50; Şahin, p. 53; Kocaaga, p. 120. In the doctrine, Öz stated that the declaration of acceptance can occur at every stage of the contract, including before delivery. The author stated that the owner cannot avoid taking delivery of the building if he learns about the defect before delivery and declares that he will accept the delivery to be made in this way. See Oz, p. 215 – 216.
49. Öz, s. 215; Erman, s. 163.
50. Oz, p. 216; Package, p. 142. The majority opinion in the doctrine is that the employer can make a conditional acceptance statement. See Erman, p. 163; Oz, p. 219; Selici, p. 199; Package, p. 142; Uçar, p. 255
51. Kocaaga, p. 120 – 121; Yakuppur, p. 68 – 69; Uçar, p. 90
52. Uçar, makale, s. 515; Şahin, s. 50; Uçar, s. 90.
53. Büyükay, Yusuf, Work Contract, 3rd Edition, Yetkin Publications, Ankara 2019, p. 112.
54. Erman, s. 199, 201.
55. Kostakoğlu, s. 27. “According to the contract, the old BİGŞ, which was in force on the date of the contract, is an annex to the contract. Thus, BİGŞ and articles 33 and 34 of this specification are in the nature of an evidential contract between the parties in accordance with Article 287 of the Code of Civil Procedure.” Yargıtay 15. HD, K.T: 6.2.1992, 1992/157 E. 1992/472 K. Karar için bkz. Kostakoğlu, s. 60 – 61.
56. Şenocak, Zarife, The Right to Request Removal of Defects in the Work Contract, Turhan Kitabevi, Ankara 2002, p. 106. For another similar definition, see. Kırmızı, Mustafa, Annotated – Work Contract with Jurisprudence and Construction Contract in Exchange for Land Share, Updated 2nd Edition, Bilge Publishing House, Ankara 2018, p. 706.
57. Şahiz, Cevdet Salih, Contractor's Responsibility for Incomplete Performance (Incomplete Work) and Defective Performance in Work Contracts, Vedat Kitapçılık, İstanbul 2014, p. 39.
58. Ayan, s. 61.
59. Kurt, s. 72.
60. Avcı, Ali, Legal Situations of Third Parties Receiving Independent Sections in Construction Contracts in Exchange for Land Share, Yetkin Publications, Ankara 2021, p. 138.
61. Yargıtay 15. HD, K.T: 20.1.2020, 2019/1698 E. 2020/120 K. Karar için bkz. Aslim, İnşaat Sözleşmelerinde Eksik İfa, Yetkin Yayınları, Ankara 2021, s. 68; Zeybek, Ramazan, Taşınmaz Satımında Eksik İfa ve Ayıp, Adalet Yayınevi, Ankara 2019, s. 68, dn. 322.
62. Supreme Court of Appeals 15th HD, K.T: 1.3.2012, 2011/485 E. 2012/1218 K. For the decision, see. Red, p. 706, no. 1488.v
63. YHGK, K.T: 27.4.2011, 2011/13-4 E. 2011/230 K.; YHGK, K.T: 2.11.2011, 2011/13-468 E. 2011/666 K. (https://legalbank.net/arama/mahkeme-kararlari, E.T: 15.11.2021)
64. Akıncı, Şahin, Distinction between Bad Performance – Incomplete Performance – Defective Performance and the Legal Consequences of This Distinction, International Symposium on the 90th Anniversary of the Civil Code and the Code of Obligations, Turkish – Swiss Civil Law from 1926 to the Present, 17 – 18 – 19 – 20 February 2016, Vol. 2, Ankara 2017, p. 1402.
65. Gür, Mustafa, Concepts of Incomplete Performance and Defective Performance in Construction Contract in Exchange for Land Share, Seçkin Publishing, İzmir 2017, p. 81 – 82; Aslim, p. 25.
66. Gauch, s. 29, no: 101 (Aktaran: Ayan, s. 62), Ozanoğlu, s. 62 – 63; Tandoğan, s. 126; Seliçi, s. 35, dn. 73; Şahin, s. 97 – 98. “As a rule, a work to be manufactured and constructed will only be delivered after its entirety has been completed. The duty of warranty against defects may also arise if the work is actually and completely delivered. It is a fact accepted by the decisions of both the Supreme Court of Appeals and the Swiss Federal Court that delivery is deemed to have been made, meaning that all works agreed in the contract have been completed and performed, and that a work that has not yet been completed cannot be considered as delivery or receipt. Accordingly, the completion of a work is possible by determining that the work can be used for its purpose within objective measures. Unless the contractor does this, he cannot be held liable for a defect notice.” Yargıtay 15. HD, K.T: 9.4.1987, 2168/1443. Karar için bkz. Erman, s. 34, dn. 3.
67. Ayan, s. 63; Kurt, s. 70; Şahiniz, s. 55; Ozanoğlu, s. 63, dn. 73.
68. Ayan, s. 63; Kurt, s. 70; Şahiniz, s 56; Paket, s. 110; Gür, s. 108; Seliçi, s. 40.
69. Gauch, s. 30, no: 104 (Aktaran: Ayan, s. 63), Şahiniz, s. 56; Gür, s. 108.
70. Koller, Alfred, Berner Kommentar zum schweizerischen Privatrecht, Band VI – Das Obligationenrecht, 2. Abteilung – Die einzelnen Vertragsverhaltnisse, 3. Teilband, 1. Unterteilband, Der Werkvertrag, Art 363 – 366, Bern 1998, s. 96, no: 298 (Aktaran: Ayan, s. 63 – 64); Paket, s. 110; Şahiniz, s. 56 – 57.
71. Koller, s. 112, no: 370 (Aktaran: Ayan, s. 64).
72. Koller, s. 112, no: 372 (Aktaran: Ayan, s. 64).
73. Ayan, s. 65.
74. Deniz Özkan, Sema, Incomplete Performance in Work Contract, Istanbul Bar Association Journal, Vol. 89, No. 6, Istanbul 2015, p. 224; Ayan, p. 66; Gür, p. 110. It is stated in the doctrine that the percentage realization of the structure may lead to misleading results in assessing the importance of the deficiency. In some cases, even a 1% deficiency can be considered a justified reason for not accepting incomplete performance. For this reason, it has been stated that when making the evaluation, all the circumstances of the concrete case should be taken into account and it should be evaluated whether the owner can use the building in its current state. See Ayan, p. 67, no. 219
75. Ayan, p. 66; Şahiz, p. 64; Gür, p. 110.
76. Şahiniz, s. 64.
77. Ayan, s. 67; Gür, s. 111.
78. Deniz Özkan, s. 223.
79. In the doctrine, KURT stated that the employer can accept the delivery as performance even if there is a significant deficiency. According to the author, in this case, it should be examined whether the business owner bought the building with significant deficiencies with his free will or whether he was forced to buy it due to the economic conditions. See Wolf, p. 71, db. 223.
80. Ayan, s. 67; Şahiniz, s. 64; Gür, s. 111. "If the work is left significantly incomplete compared to the whole, the contractor cannot request full performance of the counter-performance, as the owner cannot be forced to take delivery of the construction." Yargıtay 15. HD, K.T: 3.11.2004, 2004/1391 E. 2004/5609 K. Karar için bkz. Deniz Özkan, s. 223, dn. 29.
81. Deniz Özkan, s. 223; Ayan, s. 67 – 68; Şahiniz, s. 64.
82. Deniz Özkan, s. 223; Ayan, s. 68; Şahiniz, s. 65; Gür, s. 112.
83. Deniz Özkan, s. 224.
84. Ayan, s. 68; Gür, s. 112; Özkan, s. 224; Şahiniz, s. 65.
85. Ayan, p. 68 – 69; Şahiz, p. 65. Even though the employer knows the deficiency in the work, he actually starts to use it. TBK art. Due to the legal presumption stated in Article 477 that "After the express or implied acceptance of the work, the contractor is relieved of all liability", it is assumed that he received the building in its incomplete state. See Yılmaz, Halil, Introducing and Implementing a Reservation in the Performance of Debts, Updated 3rd Edition, Seçkin Publications, Ankara 2015, p. 209; Wolf, p. 71.
86. Yılmaz, s. 209
87. Ayan, s. 69.
88. Gür, s. 113 – 114; Yılmaz, s. 209 – 210; Kurt, s.71.
89. Tandogan, p. 161; Erman, p. 121; Uçar, p. 124; Silver, p. 51 – 52; Oz, p. 160 – 161; Selimoğlu, Yaşar Engin, Work Contract, Adalet Publishing House, Ankara 2021, p. 179; Turanboy, p. 157 – 158; Şahin, Article, p. 138; Şahiz, p. 101; Zevkliler, Aydın/Gökyayla, K. Emre, Law of Obligations Private Debt Relations, 21st Edition, Vedat Kitapçılık, İstanbul 2021, p. 552; Büyükay, p. 103; Eren, Article, p. 78 – 79; Kocaaga, p. 140; Gür, p. 136; Gül Selçuk, Tuğba, Contractor's Liability Arising from Defects in the Construction Contract in Exchange for Land Share, Oniki Levha Yayınları, İstanbul 2021, p. 17; Aslim, p. 92; Çelik, Yiğit, Termination of the Construction Contract in Exchange for Land Share due to the Defect of the Building, Yetkin Publications, Ankara 2020, p. 105; Aral, Fahrettin, Malpractice in Turkish Law of Obligations, Yetkin Publications, Ankara 2011, p. 112.
90. Büyükay, s. 103 – 104; Tandoğan, s. 162; Erman, s. 121; Gür, s. 137.
91. Tandoğan, s. 162; Büyükay, s. 104; Gül Selçuk, s. 18; Kocaağa, s. 140; Uçar, s. 125.