Price Reduction Request of the Owner Due to Defective Work in Construction Contracts 3 January 2018

In the event that there is a defect in the work performed by the contractor in the construction contracts, the optional rights of the owner are regulated in Article 475 of the Turkish Code of Obligations (“TCO”). Accordingly, if there is a defect in the work; the owner may terminate the contract, may request price reduction or may request free repair of the work. However, the owner has some obligations to fulfill in order to exercise these optional rights.

The owner must fulfill the obligations set forth in Article 474 of TCO in order to use the optional rights due to defective work. Accordingly, there is a burden of inspection on the work which the contractor has completed and delivered to him. In other words, there is an obligation for the owner to examine the work, which completed by the contractor and handed over to the owner, whether there is any defect or fault. Although the owner does not have any time restriction to fulfill this obligation in our legislation, the owner must fulfill this obligation as soon as possible in accordance with good faith principle pursuant to jurisprudence of the Supreme Court. The owner may also choose to have the work examined by an expert in order to fulfill his inspection burden but the owner will be responsible for the expenses in this case.

If the owner finds any defect or fault in the work as a result of the inspection that he has made, he is obliged to inform the contractor. Nevertheless, there is no time limit for making this notification in our legislation but according to the decisions of Supreme Court, it is considered necessary that the notification should be made as soon as possible in a way that does not give harm to the contractor. According to several decisions of Supreme Court, the contractor should not be hold responsible for the increasing amount of loss if the damages have been increased due to not making the notification for a long time.

The owner may use one of the optional rights set forth in Article 475 of TCO after he makes notification to the contractor. In this case, there is no regulation regarding the amount to be deducted if the owner requests the reducing of the contract price. However, in such cases, an upper limit is drawn for the amount that will be deducted because of the defect by assuming that the amount to be deducted should not exceed the amount to be paid for resolve the defect. Even if it can be changed according to circumstances of the case, the opinion which generally accepted by Supreme Court through its jurisprudence is that the amount reduced from the contract price shall be as much the loss or depreciation due to the defect or fault as. However, the Supreme Court states that the contractor must not be unfairly suffer a loss and the balance of interests must be protected during the process of determination of this amount.

Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/eser-sozlesmelerinde-ayip-nedeniyle-bedel-indirimi

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