The fulfillment of the obligations agreed in the contract as required is required by the pacta sunt servanda (commitment to the promise), one of the general principles of the law. One of the parties to the contract must fulfill what he undertakes to do or give, as agreed in the contract. As a rule, the principle of freedom of contract has been adopted in our law. Accordingly, the parties can freely determine the content of the contract they have concluded. The exception to this rule are the provisions of an imperative nature and situations related to public order, in addition, the parties can freely determine their mutual rights and obligations in a contract.
In the type of contracts regulated by law, the rights and obligations of the parties are stipulated. Unless otherwise agreed, these provisions will be valid in the contract between the parties. In this bulletin, the rights and obligations of the main contractor arising from the law are emphasized in construction contracts, which are a kind of work contract.
1. Delivery Obligation of the Contractor’s Work
The obligation to deliver the work is one of the basic elements of the work contracts. The main subject of a construction contract is also to establish a building (structure, construction).
In the decision of the Civil Chamber of the Supreme Court Assembly, the following determinations were made regarding the contractor’s obligation to complete the work;
“The subject of the provision for land share construction production agreement is the construction of the building to be built on the land where the owner of the land is the owner. Construction, refers to the work of a material nature.
The first element in the construction agreements in return for land share is, “contractor falls under the debt of creating a construction (the building)”. Because in these contracts contractor, falls under the debt of creation of a building (construction) with art, skills and labor expenditure as needed, providing its finances. But the subject of construction contracts is to make a new structure (building), as well as to add a construction to an existing building or it can also create a repair job for a change or structure.”
The contractor must deliver the building he has built in accordance with the legislation and the contract to the employer or the owner of the land. The completion of the work and the delivery of the work are different events from each other. In the construction contract, the contractor is responsible for both the proper completion of the building and its delivery to the employer. The building should be completed as agreed between the parties, and then the ownership of the building should be handed over to the employer.
In order for the event of delivery to be realized, first of all, it is necessary to complete the construction. It is not possible to deliver the missing and incomplete structure entirety. But if the work was completed in a defective (incomplete, faulty) way, its delivery is possible in this form. In this case, the employer may request their requests by notifying the contractor of their claims arising from deficiencies or defects in the construction, even if they receive the construction in this form. It should be noted that here the missing work should not be at a very significant level. If, for example, a very important building is likely to be demolished, some floors are missing, the roof is not closed, in this case, the delivery is not legally considered to have occurred.
The event of delivery can be realized in different ways. The parties may have agreed between themselves on how and on which terms the delivery will take place. If there is such an agreement, then the work must be performed as agreed in the contract. For example, if it is agreed in the contract that it will be delivered on a turnkey basis by obtaining permission to use the structure, the delivery that does not comply with these conditions is not considered valid and does not have consequences.
If there is no agreement between the parties on how delivery will be carried out, the following rules about delivery will apply;
- If the work is built on the contractor’s land, the transfer of ownership of the land to the employer by deed takes place. Because ownership of immovable property is established by registering it in the land registry.
- If the work was built on the land of the employer, the contractor must complete the construction and leave it to the employer completely as he can use it so that he can be considered to have delivered the work. In this case, if necessary, the contractor must also notify the employer of the event of delivery. Delivery can also be carried out by turnkey delivery or delivery record.
The contractor is also obliged to deliver the work on time. If the parties have agreed on a certain date in the contract when the construction will be completed, they must complete it on this date, and if they have decided on an approximate date, they must complete it on an approximate date. There are also cases when the period is extended for mandatory reasons or for other reasons. If there are not cases that require an extension of the period, it may be possible for the employer to exercise his rights not to accept delivery and rescission of the contract due to delays.
Delivery and acceptance of delivery considerations are important in construction contracts. Because, unless otherwise agreed, the employer’s obligation to pay the contractor’s fee will be due upon delivery (that is, it must be paid legally). Even if the construction is delivered as incomplete or defective, the employer also has a wage payment obligation because the delivery has taken place and therefore the contractor has been deemed to have paid his/her own debt. However, in this case, the employer may not pay for the defective works by citing deficiencies and defects in the building.
From the moment of delivery, the employer’s obligation to check for deficiencies and defects in the building and report them to the contractor begins. The date on which the period of limitations for liability and claims arising from deficiencies and defects begins to apply is also the date on which delivery occurs.
2. The Contractor’s Duty of Care and Loyalty
The contractor, who is a party to the construction contract, must comply with the provisions of the law and the contract, as well as the rules of science and craft, when fulfilling the debt of completion and delivery of construction and other debts arising from the contract. The obligation to act as a prudent businessman, which is one of the obligations required by being a trader in our commercial code, will also apply to the contracting party. Therefore, the contractor’s debt of care is an objective and qualified debt. From the objectivity of the duty of care, the intention is that the care shown or required to be shown by competitors operating in the same sector will be taken into account, not according to the contractor’s own conditions and situation. The quality of care is that it requires a superior and meticulous effort than usual, which the clairvoyant trader is obliged to show.
“As a rule, the contractor should pay a higher level of attention to the performance and delivery of the work than the worker. When getting a job, the contractor must thoroughly weigh that his expertise and monetary power are sufficient for that job and avoid making the contract if they are insufficient. Otherwise, he will have acted contrary to his duty of care and will be held responsible for it. The debt of care continues from the preparatory work to the delivery of the work.”
The contractor’s duty of care continues from the conclusion of the contract until the delivery of the construction. The contractor, when undertaking a job, must make a decision by weighing his own material strength and technical competence and expertise. Otherwise, if he undertakes a job that he cannot handle technically or financially, he will have acted contrary to his duty of care. In the same way, when choosing the material used by the contractor in the construction, the contractor is expected to act in accordance with the duty of care when taking the necessary measures in the construction area.
The contractor’s debt of loyalty requires him to act in accordance with the trust placed in him. Accordingly, the contractor is required to keep the secrets of the employer, provide information related to the maintenance of the construction that will harm the employer, act in accordance with the rule of honesty in their actions and doings.
“In a work contract, the contractor is obliged to act in such a way as to be in the best interest of the employer, who is the other party to the contract, in fulfilling his debt and to avoid harming him. TCO Art. 472 the contractor is a competent worker, and in order to qualify for the price, he must complete and deliver the work in accordance with the rules of science and craft, technique, and the purpose that the business owner expects from him. In the contracts of works, the contractor is obliged to perform them in a way that is for the benefit of the employer and without causing him any harm due to the duty of loyalty and care. The general notification obligation of the contractor arises from this responsibility. In other words, the contractor is obliged to notify the business owner immediately in any case that jeopardizes its performance as required by law and on time.”
3. The Contractor’s Obligation to Take Care of the Selection and Use of Materials
Another obligation of the contractor arising from the debt of care is his duty to be attentive to the selection and use of materials such as iron, cement, ready-mixed concrete, plumbing, pipes, etc., which will be used in construction. If there are no specifications in the contract, it is assumed that the materials will be provided by the contractor. If the materials are provided by the contractor, the contractor is responsible to the business owner as well as the seller of this material for the fact that this material is damaged. The material provided by the contractor must be of good quality. It is a construction-friendly material of medium quality, suitable for what is intentionally promised in the contract or expected from good quality material. In the case of the selection or use of materials that do not have these characteristics, the obligations arising from the sale of defective goods will apply to the contractor here.
If the material was provided by the employer, the contractor is obliged to use them with due care and, due to this, return the account and the excess material.
4. The Obligation to Do the Work Personally or to Have It Done Under Their Own Management
The contractor is obliged to carry out the construction himself or under his own management. Because in a construction contract, the contracting party is preferred according to personal skills and characteristics. However, if the contractor does not necessarily have to do it himself, it is possible that the same work can be completed with the same quality and feature under his management by transferring the work to subcontractors and completing it. This method, which is often preferred in practice, cannot be applied to works in which the construction work is strictly subordinated to the person of the contractor. In such cases, the contractor must undertake the work himself without transferring it. In the same way, if the employer opposes the transfer of work to the subcontractor, the contractor must do the work himself. The contractor’s transfer of work to subcontractors may be valid only if the employer consents to it. Otherwise, unauthorized transfers are a violation of the construction contract.
15th Civil Chamber Hukuk Dairesi’nin vermiş olduğu kararda yüklenicinin tüm borçları şöyle özetlenmiştir;
“The work contract is a contract of employment that imposes rights and obligations on the parties. In this contract, the contractor is obliged to produce the work in accordance with the technical and craft rules and purpose and deliver it to the employer, and the employer is obliged to pay for the work. The contractor is responsible for incomplete and defective works until the delivery stage of the work. In the period after delivery, guarantee responsibility is raised. Therefore, if the work has a significant defect or other violation of the contract that the customer cannot use or is not expected to accept according to contract, the employer may reject the work and ask for the expense if the contractor has a defect.”
Whether the work has been completed in accordance with the contract, proof of delivery of the work, the limits of the contractor’s duty of care are the most frequently disputed cases in practice. Especially important is the prove in the cases filed on this issue. Timely notifications to the counter party, registration of evidence that should be collected before it disappears by methods such as evidence detection are factors that greatly affect the success of resolving disputes.
You can contact our team about your questions and legal service requests that you have not found answers to in our article where we provide explanations of a general nature.
Solmaz Legal and Consulting Team
İlker Hasan Duman, (2021), İnşaat Hukuku, Seçkin Yayıncılık, Ankara.
Erhan Günay, (2021), Arsa Payı Karşılığı İnşaat Yapım Sözleşmesinden Kaynaklanan Uyuşmazlıklar, Seçkin Yayıncılık, Ankara.
Supreme Court Assembly of Civil Chambers, 2017/1765 E., 2020/1033 K.
Supreme Court Assembly of Civil Chambers, 30.09.1991, 373/533.
15th Civil Chamber of the Supreme Court, 08.07.2020, 654/2183.
Civil Chamber of the Supreme Court Assembly, 2017/1765 E., 2020/1033 K.
 Supreme Court Assembly of Civil Chambers, 30.09.1991, 373/533.
 15th Civil Chamber of the Supreme Court, 08.07.2020, 654/2183.
 15th Civil Chamber of the Supreme Court, 23.01.2006, 2006-7623/166.