It is a type of compensation that the creditor can demand if even the interest does not cover the damage due to the debtor’s failure to pay his debt (occurs in situations such as high inflation, crisis, etc.).
CONDITIONS OF LOVE’S HARM:
1-There must be a loss exceeding the default interest: Excessive damage is only possible for losses exceeding the default interest, contractual interest, etc. It cannot be applied to interest.
2-The Debtor Must Be Faulty: If the defaulting debtor is not at fault for defaulting, he will be released from this debt. Here the burden of proof is on the debtor.
3-There Must Be a Causal Link: What is meant by this article is that there must be a causal link between the default of the debtor and the default interest suffered by the creditor and the damage that cannot be covered.
4- Request by the Creditor: In other words, the creditor must demand it. Ex officio, the existence of such damage is not taken into consideration by the courts.
Important Note: Excessive damage can never be intended to increase the default interest rate.
LAW OF OBLIGATIONS
ARTICLE 122- If the creditor suffers a loss exceeding the default interest, the debtor has no fault of his own.
Unless he proves that there is no such damage, he is obliged to compensate for this damage.
If the amount of damage exceeding the default interest can be determined in the pending case, the judge, upon the request of the plaintiff, also decides the amount of this damage when deciding on the merits.
When does the statute of limitations apply to the compensation in question?
In its decision numbered 2016/9487 E., 2018/161 K. of the 23rd Civil Chamber of the Supreme Court of Appeals: “In case of excess damage regulated in Article 122 of the TCO, the creditor shall be within the period of 10 years, which is the general statute of limitations in accordance with Article 146 of the TCO, starting from the date on which the entire receivable is collected.” “He can claim the damages of love.”
In its decision numbered 2021/938 E., 2022/401 K. of the General Assembly of the Supreme Court of Appeals:
The first part is the amount of damage that can be claimed without proof, and it is accepted that this damage will be covered by default interest. Apart from this, the creditor does not have the legal opportunity to benefit from any presumption. For this reason, the creditor who claims supplementary damage must first prove that the damage he suffered due to the debtor’s late payment of his debt cannot be covered by the default interest, and that he has suffered a loss exceeding the default interest. The creditor may request additional damages for the period from the date of the debtor’s first default to the date the receivable is collected with interest. The legal reason for the additional damage debt is the unlawfulness caused by the default of the principal receivable. Therefore, the debtor’s obligation to compensate for the additional damage (TBK art. 122) is a new debt, completely different from the original debt and default interest obligation, which continues to increase over time until the fulfillment of the original debt that begins with default, and is completely independent of the original debt. Supplementary damage liability is based on fault liability. Article 122 of the Turkish Code of Obligations (Article 105 of the Repealed Code of Procedure) adopted the presumption of fault. The fault sought for the emergence of the compensation obligation arising from additional damage is the fault of the debtor in falling into default. In other words, a fault relationship that causes damage is not sought or discussed here. For liability, the existence of the debtor’s fault in default is essential. As a rule, the supplementary damage creditor is obliged to prove, first of all, the existence of the principal receivable in default, the damage that is not covered by default interest due to late or non-fulfillment of this receivable, and the appropriate causal link between the damage and the debtor’s default. The creditor is not obliged to prove that the debtor is at fault for defaulting. The debtor can only be released from liability on condition that he proves his faultlessness in default. In this respect, the creditor’s (plaintiff’s) burden of proof in consequential damage cases should not be subject to very strict rules, and each event should be evaluated within its own structure and characteristics, as in general proof methods.
The ongoing inflation in our country has been at hundreds of percent in certain years, time deposits bring income at least at these rates, foreign currency value (exchange rates) always exceed default interest rates, bank loan interest rates have reached two hundred percent, and the domestic purchase (sale) value of money has decreased significantly. It is clear that this is an indisputable and experienced fact. In such an inflationary environment, it is necessary for the individual to make an effort and attempt to keep the value of his money constant and to make a profit, for example, to at least invest in time deposits or foreign exchange investments with constantly rising rates, and this should be accepted as a presumption that is in line with the normal flow of events and life experiences. In fact, it is a natural consequence of human nature and the instinct to protect one’s interests that a reasonable, normal person living in the inflationary environment described will not keep his money idle, but will turn it into an income-generating investment. This being the case, the negative effects and consequences of the inflationary economy are publicly known to more or less everyone, and most importantly, if necessary, it can be easily realized and the courts are aware of it.
