Türkiye Adalet Akademisi Dergisi

Yazarlar: Semin ÇEĞİNDİR

Konular:Hukuk

Anahtar Kelimeler:Accomplishment of purpose,Loss of purpose,Objective impossibility,Subsequent impossibility,Frustration of purpose.

Özet: The ‘purpose’ term in the notions of the accomplishment of purpose and loss of purpose refers to the objective purpose of the agreement. In the first case the creditor is satisfied prior to the performance by the debtor, while in the latter satisfaction of the creditor becomes impossible due to the impossibility of the performance. There are two different opinions about in which scope these cases are included. It is commonly accepted that both concepts lead to the objective impossibility of performance, not the default of the creditor. The matter of debate is about that whom is to bear the damage of counter performance when the impossibility occurs. Neither the debtor, nor the creditor is responsible for he occurrence of impossibility. The provision regarding the impossibility of performance in Turkish Code of Obligations is not sufficient in itself in solving the problem. For this reason, in doctrine, different opinions on risk distribution are improved. It is better to discuss the results in cases of accomplishment of purpose and loss of purpose differently. The provision 136 of TCO is sufficient to solve the problem by means of the impossibility occurs in the sphere of control of the debtor. However, it should be accepted that there is a gap in the said provision when the impossibility occurred in the sphere of control of the creditor. In this case, the creditor should, at least, cover the expenses that the debtor made to perform. The court decides within the scope of good faith and balance the interests.

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