The Turkish Code of Obligation ( Turk Borclar Kanunu- hereafter it will be referred to as TBK ) the Article 473 states that, according to all estimates, if it has been clearly understood that the contractor will have not done the work on time because of the contractor has not set work on time or has delayed the work against the contract terms either/or a reason of the delay which has not in the liability of the principal then the principal could avoid the contract without having to wait the time determined for the delivery of the work.
If it has been clearly foreseen that the construction will have been defective because of contractor’s fault or the construction will have been made by breach of the contract, the principal may send a notification to the contractor states that the defects to be removed or contrarieties to be adjusted within a reasonable time otherwise to repair or the work will be continued by a third party on the condition that damage and cost will belong to the contractor.
If the contractor has not started the work on time, the principal could avoid the contract without waiting the date determined for the delivery.
It has been clearly stated in the Article 473 of the TBK, if contractor has not started to work on time in a contract where the delivery date of the work has been not decided, the principal may avoid the contract. However, if the delivery date of the work has been decided by the parties and the work has not been completed in the due date, again it has constituted a reason of avoidance of the contract by the principal.
The definition of starting the work cannot be only limited as physical construction. Preparation of projects, submission for approval and destruction of the existing building, starting to logistic activities can be accepted as the facts and performance of the stages of the work and they have been evaluated in the matters as starting the work.
For avoidance of the contract by the principal, all conditions should be realized together. As a result of delay of the contractor, there should not any opportunity to complete the work in the remained time, the delay should not be arise from the principal’s fault and the performance of the contract should be impossible in terms of the contractor and the contractor should be warned with providing an additional proper time.
If the delivery date has not been determined in the contract or at least any due date has not been determined, the principal may demand to the construction work to be started immediately. Again if such demand has not been accepted by the contractor then the principal may avoid the contract with providing an additional proper time to the contractor.
If the contract with a certain delivery date has been also determined the time to start the work, the contractor should obey the determined time. Although the construction has not been started on time but there is a possibility to deliver the project on time, it has not been mentioned to right of the avoidance of the contract on the ground that alleging the delay by the principal.
The avoidance of contract has not been unilaterally withdrawn. If the parties want, they can draw up a new contract with the same substances. Other optional rights cannot be exercised with the exercising the right of the avoidance of the contract. However, if the contract has been re-established, optional rights could become available to be exercised.
