COMPARATIVE LAW ANALYSIS OF CONTACTUAL REMEDIES “SPECIFIC PERFORMANCE & EXPECTATIONARY DAMAGES”

BY:Ali Bugra Gokagacli

BIBLAOGRAPHY

WEBSITES

‘Definition of Law in English’ (Oxford Dictionary, 2019) <https://en.oxforddictionaries.com/definition/law> accessed 26 March 2019

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BOOKS

Sanlı K, Hukuk ve Ekonomi Perpektifinden Sözleşme Hukuku ve Yaptırımlarının Ekonomik Analizi / Economic Analysis of Contract Law and Contractual Remedies from The Perspective of Law And Economics (Onikilevha Yayıncılık 2017)

Jan M. Smits, Contract Law: A Comparative Introduction (2nd edn, Edward Elgar Publishing 2017)

Ali Naim İnan and Özge Yücel, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (4th edn, Seçkin Yayıncılık 2014)

Oğuzman K and Öz T, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (12th edn, Vedat Kitapçılık 2014, Volume1)

Oğuzman K and Öz T, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (12th edn, Vedat Kitapçılık 2014, Volume2)

Terchier P, P Pichonnaz, H Develioğlu, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (1st edn, Oniki Levha 2016)

Charles Wild and Stuart Weinstein, English Law (17th edn, Pearson 2013)

Jill Poole, Textbook on Contract Law (13th edn, Oxford University Press 2019).

M. Kemal Oğuzman and Nami Barlas, Medeni Hukuk / Civil Law (20th edn, Vedat Kitapçılık 2014).

Sirmen L, Eşya Hukuku / Law of Property (3rd edn, Yetkin 2015)

O’Sullivan A, S SheffrinS Perez, Economics (7th edn, Pearson 2012)

Sloman J, D GarrattJ Guest, Economics (10th edn, Pearson 2018)

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CASES

Stickney v Keeble [1915] AC 386 at 419

Beswick v Beswick [1968] AC 58

Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd, [1997] 2 WLR 898 (HL)

Patel v Ali [1984] Ch 283

Robinson v Harman (1848) 1 Ex 850

Nicolene Ltd v Simmonds [1953] 1 ALL ER 822

Thompson Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177

Miliangos v George Frank (Textiles) Ltd [1976] AC 443

1. INTRODUCTION

The notion of law is usually perceived as a body of rules which govern how and when a member of society needs to conduct.[1] Be that is it may, especially in civil law jurisdictions, the lawyers traditionally have not shown the necessary effort to understand the reason why a member of a society will conduct in a certain way in the first place. No one can explain the reason why the most civil lawyers have been, or had been, so extricated from the other disciplines that explain the human nature; specifically the economics. We argue that this is a fatal error in legal-teaching. A lawyer, who is supposed to be able to legislate and/or apply the rules of theirs’ society that are intended to govern the conduct of its members, cannot be expected to address the needs of his duty without having due regard and knowledge about the motivations of conduct.

Consequently, few would argue that the law of contract of any given jurisdiction is not a key area to be governed by the law. Indeed, the law of contract plays a vital role for the allocation of resources between and among the society(ies). Unfortunately, however, the tendency among many civil lawyers is to treat it as a mere part of their respective law of obligations; in other words, as if the law of contracts was isolated from other disciplines such as economics. Among the civil law jurisdictions, Turkish law of contract is perhaps the best suited one to provide an example for such disregard. We realize that our criticism may sound harsh for those who lent their pens for the legislation of the relevant legislations; but, sadly, this does not make it untrue. We will not touch upon the reasons of our deduction as it would be out of this paper’s scope.[2] We will, however, go into the contractual remedies which exist under Turkish contract law and compare them with their English counterparts to point out the inefficient components of Turkish law in order to identify some aspects of the English Law that may be helpful for improving the efficiency of Turkish contractual remedies.[3]

• WHAT IS (ECONOMIC) EFFICENCY & HOW THE EFFICIENCY OF A REMDY CAN BE ANALYZIED

In economics it is broadly accepted that the prosperity is entailed to voluntarily exchange of goods and services.[4] The idea is that, since the individuals are rationale beings (homo economicus) they will only exchange theirs assets in return for another asset which relatively has more value for them; engendering a better and effective allocation of resources within the society and leading to an increase in overall welfare.[5] Consequently, contracts pen out as the legal from of which the voluntary exchange is embodied.[6]

In addition, the economics presumes all exchanges will occur smoothly as if there would not be any drawbacks. This presumption is a natural result of the assumption of perfect competition.[7] Naturally, this is not a viable assumption to understand what really happens in a market. [8] As a result, prefect competition is used as a benchmark rather than the acceptance of the reality.[9]

In the context of contractual remedies, this benchmark measures how much the remedies can realize a “smooth” exchange. In real life, parties to a contract can prevent smooth exchange by breaching their contract. This is quite natural because rational parties are primed to assess the pros and cons of their decision to perform theirs’ obligation not only whilst concluding their contract but when it comes to making performance decisions.[10] So, if the superseding conditions develop in a way that makes the respected performance of a party economically infeasible then that party will, most probably, decide to breach theirs’ contract.[11]     

A breach will inevitably disrupt the setting which would have been established via the conclusion of contract which, presumably, serves best to welfare. Thus, for the simplicity sake, we will regard a remedy to be (economically) efficient as long as it primes the obligator to perform theirs’ obligation up to a threshold which does not consume the total surplus, i.e. impossibility, and does so with the least litigation cost.[12]

• SPECIFIC PERFORMANCE

C.1. Definition

The first remedy which we will explore is known as specific performance (aynen ifa). Specific performance refers to a contractual remedy that allows the obligatoree to compel the obligator to perform theirs’ contract in natura.[13] In other words, when sought, the specific performance allows creditor to appeal to court to render a decision, ordering the obligator to perform exactly what they had promised.

C.2. Availability of Specific Performance under Turkish & English Laws

C.2.1. Turkish Law

Characteristically for a civil law jurisdiction,[14] Turkish Law pays a very high regard to the principle of pacta sunt servanda and treats the specific performance as its primary contractual remedy unless the performance is impossible.[15] This result is accepted due to the interpretation of the provisions of default in performance.[16] Article 125 of Turkish Code of Obligations[17](TCC), which sets out the alternative rights of a creditor reads: “If the debtor who lapses into default fails to perform his/her obligations within the given amount of time or if there is no need for an extension, the obligee shall always have the right to request the performance of the obligation and a compensation for the delay.”

Furthermore, in principle, Turkish law does not pose any restriction on the obligee to demand specific performance except when it is impossible. Impossibility, in this context, is construed to have an objective meaning; in that if the obligator cannot perform theirs’ performance at theirs’ discretion or that the performance is physically possible; however requires the utilization of resources whose value far exceeds the value of itself then the obligation is regarded as impossible.[18] If the obligation becomes impossible due to the fault of obligator; then according to Article 112 of TCC s/he becomes liable for paying damages if not then Article 136 of the same law terminates the contract.

C.2.2. English Law

English Law also acknowledges specific performance as a remedy. However, it fallows a very different path than its Turkish peer. Under English Law, specific performance exist as an equitable remedy meaning that, unlike Turkish Law, it is only granted in cases which the common law remedy, namely damages, is not satisfactory.[19] English Law imposes rules without which a specific performance cannot be decreed.

In that regard, the first rule is it would be “under all the circumstances equitable so to do”[20]. This would usually occur when there is no alternative performance (such as paying damages) is available to the obligatee.[21] This rule is also known as the “inadequacy of damages”.[22]

Moreover, if needed, the court needs to be able to exercise supervision over the enforcement of specific performance.[23] In fact, the supervision rule seems to trump over the inadequacy rule. In Co-op. Insuarance Society v Argyll Stores[24] House of Lords (Lord Hoffman) provided two reasons why supervision is a necessity to grant a specific performance decree which are essential for an effectiveness analysis. Their Lordship observed that “… first the defendant, who ex hypothesi did not think  that it was in his economic interest to run the business now has to make decisions under a sword of Damocles” because the only manner possible for compelling a defendant who is ordered to perform a contract of personal nature is using quasi-criminal procedures; “… Secondly … (T)he possibility of repeated applications over a period of time means that, in comparison with a once-and for all inquiry as to damages, the enforcement of remedy is likely to be expensive in terms of cost to the parties and the resources of the judicial system.”

In addition the enforcement of specific performance must not cause “significant hardship or unfairness” upon the defendant.[25] The leading precedent that established this rule is found in Patel v Ali.[26] In that, Goulding J held “Equitable relief may, …, be refused because of an unforeseen change of circumstances not amounting to legal frustration”. He found that the circumstances that surrounded the defendant have altered in a way that the performance would put her in a position wherein she would be performing something that effectively she had “never bargained for” and hence the damages were available to the plaintiff to cover his losses and be enough to do justice. [27]

Only after these rules are satisfied, under English Law, a plaintiff may seek specific performance and thus its practice is considered to be limited with the contracts for the sale of land.[28]

C.3. Should Turkish Legislator Consider English Rules on Specific Performance for a More Efficient Turkish Contract Law?

We believe that Turkish Legislator can draw huge assistance from the English Law for the purpose of increasing the efficiency of Turkish Contract Law. We will try to justify our opinion for each rule in below.

C.3.1. Inadequacy of Damages

First of all, we believe that, Turkish Legislator inefficiently primes an obliatoree by allowing them to seek specific performance under all circumstances except when the performance is not possible. This is because obligoree is primed to act in a reckless and self-interested manner; i.e. s/he would/can disregard whether theirs’ demands would impose a very high-burden upon the obligator and distort the resource allocation function of the contract by, possibly, putting the obligator in a situation wherein entering into contract does not commercially make sense in the first place.[29] Naturally, one may argue that in the majority of instances this would not be the case due to the fact that most of the transactions of the contemporary era are made to exchange readily substitutable goods and thus obligatoree would pursue damages instead of specific performance. However in some instances obligatoree may have mal-intentions. A typical respond of a Turkish Lawyer against this argument would be to assert that such an attitude will be an abuse of right and against the principle of objective good-faith, and thus can be prevented.[30]However we should dismiss this argument as it does not in the interest of efficiency. The principle of objective good-faith and the doctrine of abuse of rights under Turkish Law do not provide “tangible” counter-claims, save some examples found in law of property.[31] Therefore they are in no position to shield both the defendant and public from a costly litigation.

In a more likely scenario wherein the plaintiff would merely be seeking theirs’ promised performance the defendant would only be able to rebuttal against specific performance claims by either invoking the abuse of right doctrine and state that theirs’ loss is far superseding the gains of theirs’ obligatoree or that performance itself became so onerous that it must be regarded as impossible.

Again, we believe such policy to be inefficient.  We have already expressed our concerns with regard to asserting the doctrine of abuse[32]; in addition we can also articulate that this time the defendant will be in an inefficiently disadvantaged position in which s/he will try to prove the value of the specific performance not from theirs’ point of view but the point view of theirs’ obligator. This is likely to force the defendant to enter into a settlement agreement which does not realize the surplus value of the contract as it was initially intended or to incur exorbitant litigation costs. Asserting the impossibility claim would also be expensive in term of litigation because it would extend the litigation process and take up more resources. This follows from that fact that in such a lawsuit, the defendant would try to prove that the performance has become impossible for them by exerting evidences proving the cost of performance is much higher than the value of its subject. I.e. obligator will have to hire more experts and court will have to hear more expert witness statements.

Thus, it is in our opinion, that should the Turkish Legislator had adopted the position of the House of Lords in Stickney v Keeble and made the specific performance a remedy that is granted only when damages are not adequate; Turkish Contract Law would prime the parties to a contract more efficiently, avoid litigation costs and thus be more effective.[33]

C.3.2. Supervision

In our mind, Turkish Law would also be better off if it had employed the supervision rule. Our conclusion is derived from the reasons why supervision rule exist under English Law.

To begin with, if the subject of obligatoree’s performance was personal in nature and that obligotoree decided not to perform the only mean possible under Turkish Law to compel them is to instate quasi-criminal procedures found in Article 343 of Enforcement & Bankruptcy Act[34]which envisages three months of jail time. This policy is problematic at two fronts. First, the constitutionality of this rule is open to debate.[35]Secondly, and more importantly for this paper, it can beat the purpose of concluding a contract. No obligatoree can be expected to perform its obligation as best as they can while being at a gun point; meaning that the obligator would probably not receive what he had originally intended.[36]Furthermore, if the obligatoree persist on not to perform after serving theirs’ time then there is no further action that can be taken against them. This, obviously, preclude the realization of the contract’s value. This also follows that each time the obligatoree does not perform, the obligator must appeal to the court and obtain a decree to mandate upon theirs’ obligator to conduct in a certain manner. This is definitely inefficient due to the potential litigation costs and which is why the English Law does not employ the specific performance as a remedy for (most) personal contracts.

In our mind, only time the specific performance can be considered as efficient in the context of personal contracts is when the decree of court can substitute the performance of the obligatoree’s performance. In example, if the obligatoree is obliged to sell theirs’ real estate via giving his signature before the land registrars’ officer but refrains to do so the decree of court will constitute the judicial act. In that sense, Turkish and English Laws adopt exactly the same approach.

As for performance of refrainment, the English and Turkish Law seem to be on the same ground. The English contractual remedy to force someone not to do something is known as an injunction and it is decreed under the same conditions with specific performance.[37] Therefore, we cannot make a comparative analysis.

For the purpose of this paper, we hold that to be the same when it comes to make a comparative law analysis on the efficiency of the English and Turkish Law rules that govern obligations whose subject is to a deliver a good. This is due the fact that the overwhelming majority of the contracts                         which concerns the delivery of a good would be sales contract. Article 212 sets out that: “In case of seller’s default during commercial sales …, it shall be presumed that the buyer is going to renounce his/her request for transfer and request that the loss arising from the non-performance of the obligation be compensated.” effectivelyturning the Turkish Law position towards its English peer. Consequently, we will not compare the efficiency of Turkish Law with the English Law in the context of delivering goods and specific performance.

C.3.3. Significant Hardship or Unfairness

We noted that significant hardship and unfairness of performance due to the unforeseeable changes could be a reason to avoid specific performance under English Law.[38] We believe that there is no difference between Turkish Law and English Law with regards to this policy. Even though, provisions of TCC which govern the specific performance do not mentioned such a limitation, Article 138 of TCC propounds the same approach in the Turkish Law almost with the same wording. The Article sets out that: “ … an extraordinary situation which is unforeseeable … turns the existing state of affairs against the obligor to the extent that asking for the performance of the obligation becomes incongruent with rules of honesty …  the obligor shall have the right to request from the judge that the contract be adapted to the new conditions …”. In this context, adapting of the contract would be claiming to be pay damages instead of specific performance. Thus we are not going to elaborate whether Turkish Law could benefit from the “hardship rule” as it practically contains it.

• EXPECTATIONARY DAMAGES

D.1. Definition & Methodology

Expectationary damages (or positive damages (olumlu zarar) as known in Turkish) refers to a remedy that aims at protecting the wronged party’s interest in performance.[39]

In contrast to specific performance, expectationary damages claims bear a lot of similarities in both of our jurisdiction. Therefore, we believe that we need to astray from the methodology which we fallowed for specific performance. In that regard, instead of explaining the availability of expectationary damages under both jurisdictions and then analyzing the efficiencies of different approache, we will directly put them into contrast. That is why, for example, we are not going to discuss the causation rules and obligations to pay money for both jurisdictions as they are practically indifferent.[40] We shall also exclude non-pecuniary damages from our analysis due to the high similarity in both jurisdictions.

 D.2. Fault  

Perhaps the starkest contrast between two jurisdictions is their position on fault. The Turkish Law is based on the idea that damages should be awarded if they are the result of a reprehensible act.[41]TCC 112 sets out this position with the following wording: “In case of non-performance or unduly performance of an obligation, the obligor shall be liable to compensate for the obligee’s damages arising from this unless s/he proves that s/he cannot be attributed any fault whatsoever.”  

The English Law, on the other hand, utilizes absolute liability for breach of contract.[42]This approach is summarized in the words of Sellers,J in Nicolene Ltd v Simmonds[43] as: “It does not matter whether failure to fulfil the contract by the seller is because he is indifferent or willfully negligent or just unfortunate. … What matters is the fact of performance. Has he performed or not?”.

The difference between two jurisdictions has essential implications on the efficiency. The Turkish approach serves better to the interest of the obligator whereas the English approach is vice a versa.[44] To understand whether the English approach has something to contribute to its Turkish counterpart; we first need to identify the elements of Turkish fault based liability.

Turkish Law bifurcates fault to have two sub-categories; namely: intent and negligence then further bifurcates negligence to be gross negligence and petty negligence. In principle, the liability is omnis culpa. However, Article 52 of TCC brings an exception for it by stating that: “… his/her petty fault faces poverty when s/he pays the compensation and if equity requires so, the judge can reduce the compensation.”.

Moreover, the negligence is acknowledged to be demonstrating the due care that is required by the relevant situation.[45] Both these factors emphasize that the Turkish Law is prone to create more litigation cost.[46]

Despite this, in our limited analysis, it would not be appropriate for us to prima facie conclude the English approach to be better. Indeed, there are some perks associated with the fault liability which need to be factored in. For example, and in connection to our analysis, the fault liability is presumed to better prime the obligator to undertake the necessary arrangements which will facilitate the performance and thus resulting a smoother exchange of considerations; because s/he will be able to avoid liability whilst acting so.[47] Consequently fault liability is thought to perform better in cases which the quantification of damages is problematic.[48]Moreover, since the fault liability keeps the risk on the shoulders of the obligatoree it would naturally primes them to not to make excessive performance related investments; meaning that if for some reason the contract becomes frustrated there will be fewer miss-allocated resources.[49]

For those reasons, we cannot conclude whether Turkish Law should align with the English Law. Sanlı suggests that it is not possible to determine which policy is better in theory, and that such question can only be answered by empirical studies.[50]The author further argues that there cannot be a single efficient manner of regulating conduct in the context of fault liability; instead the principle of liability should be adjusted per each contract type.[51] We agree with this stand.

D.3. Quantification of Damages

There are also some visible differences between both of our jurisdictions when it comes to how to quantify pecuniary damages. Despite that, there is also one significant similarity. Both Turkish and English Laws perceive damages to be compensatory; meaning that the wronged party cannot seek for more than theirs’ lost.[52]

Also, except the cease of causality there are no limits under both jurisdictions as to how much compensation can be sought. Therefore, the actual limit seems to be on the availability of proof rather than material law. However material rules in both jurisdictions mitigate the burden of proof. For that reason, we will try to establish whether Turkish Law can be improved by the rules found under English Law.

TCC 50 sets out that: “If the amount of damage suffered cannot be determined exactly, the judge shall, in compliance with equity, determine the amount of damage by considering the natural course of events and the measures employed by the damaged party.”  Hence, we can claim that, even though the wronged party is burdened with proving loss suffered s/he is not required to do so in quantity.[53]This approach is believed to be efficient especially for those parties who do not want reveal every bit of evidence they have got due to some commercial concerns.[54] However, save Article 50, there is not any other general provision which governs how the damages should be quantified. English Law, on the other hand, is much more precise. It generally uses a method known as “cover transaction”[55] which quantifies the loss suffered by the wronged party to be the difference between price agreed and the market price of the goods on the day of breech.[56] Actually, Turkish Law is not alien to cover transaction rule. It is codified in among the provisions that govern the sales contract. It may be open to the debate whether those provisions can be mutadis mutandis applied to other contracts and become a general principle. However, for our analysis, we find it sufficient to say that Turkish Law lacks such a general provision and a possible alignment with English Law would make it more precise and efficient as this will lead to a decrease in litigation costs.

Another inefficient aspect of Turkish Law is the fact that it does not explicitly state which date should be taken whilst calculating the damages. Predominant opinion is to have the date of verdict whereas the minority suggests taking the date of breach.[57] English Law, however, clearly asserts the breach day rule.[58] This is obviously a more efficient approach due to the fact that it brings clarity over the quantity of the losses.[59]

• CONCLUSION

To recap, even though they come from different traditions we can say that, in the context of contractual remedies, Turkish and English Laws share more in common than they do in difference. However, that does not mean they are without any differences.  In this paper we have approach those difference from an economical efficiency point of view and with respect to the Turkish Law.

According to our analysis, when it comes to specific performance English Law primes the parties to a contract in a more efficient way and allows better allocation of resources by limiting possible litigation costs that is quite possible to occur under Turkish Law. That is why, in our conclusion, it would be more appropriate to amend the Turkish Law by taking into account the rules that govern specific performance of English Law.

As for the expectationary damages; English Law, again, seems to be more efficient. However, our conclusion in that context cannot be as certain as the one we have for the specific performance. First of all, we cannot determine which fault approach is better due to the lack of data. From a theoretical point of view, the approaches of both jurisdictions possess upsides and downsides that cannot be resolve via a theoretical work. In terms of quantification, the advantages of English Law stems from the fact that rules that provide efficiency are well established whereas in Turkish Law the legal underpinnings of the very same rules are open to debate.

Finally, we pen down by addressing the elephant in the room. Our work is confined to only two contractual remedies and only within this confinement we have reached to the above mentioned conclusions. Moreover, we have compared both system to the respect of the Turkish Law and that inevitably led us towards a bias against seeing the inefficiencies of the Turkish Law. It is very likely that if we had done our analysis with respect to the English Law we could have identified inefficiencies which can be remedied by adopting the relevant Turkish approaches.

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[1] ‘Definition of Law in English’ (Oxford Dictionary, 2019) <https://en.oxforddictionaries.c om/definition/law> accessed 26 March 2019.

[2] For the inefficiency of the Turkish Contractual Remedy rules see: Kerem Cem Sanlı, Hukuk ve Ekonomi Perpektifinden Sözleşme Hukuku ve Yaptırımlarının Ekonomik Analizi / Economic Analysis of Contract Law and Contractual Remedies from The Perspective of Law And Economics (Onikilevha Yayıncılık 2017),p:307-397

[3] At this point, it is worthwhile to note that one of the “inefficiencies” of Turkish Law is employing a very complicated and grift contractual remedy system that contains various forms of the remedies which are discussed in this paper. For the sake of simplicity, however, in our analyses we will not be dealing with them in large if not at all.

[4]Arthur O’Sullivan, Steven M. Sheffrin and Stephen J. Perez, Economics (7th edn, Pearson 2012), p:52.

[5] Supra note:2, p:13

[6] Ibid, p:71

[7] Ibid, p:14

[8] John Sloman, Dean Garratt and Jon Guest, Economics (10th edn, Pearson 2018), p: 191.

[9] Ibid.Also s

[10] Supra note:2, p: 79

[11] Ibid, p: 80-81,85

[12] For a more conclusive analysis of contractual remedies see: supra note 2, p: 137-187

[13] Jan M. Smits, Contract Law: A Comparative Introduction (2nd edn, Edward Elgar Publishing 2017), p: 193.

[14] ibid

[15] Ali Naim İnan and Özge Yücel, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (4th edn, Seçkin Yayıncılık 2014), p: 606.

[16] Actually this position must be open to some debate. Article 125 of TCC (the relevant provision) is by no means a general provision. It is, at best, a general provision in case an obligator defaults in theirs’ performance. In fact, article 112 of TCC is a general provision and envisages that “… the obligor shall be liable to compensate for the obligee’s damages arising from this unless s/he proves that s/he cannot be attributed any fault … . “ Moreover,  no Turkish scholar provides a satisfactory reasoning for such interpretation. They all repeat the wording of TCC 125 and do not further articulate. In our opinion there is no reason, under Turkish law, to treat specific performance as the primary remedy except a handful of binding decisions rendered by the Turkish Court of Cassation which concerned with contracts that were concluded in accordance with the gold standard. In example one court decision reads “…  promises accorded on the gold are to be fulfilled in gold as a specific performance so far as gold can be supplied from the market and transacted.”[author’s translation] (Turkish Court of Cassation Chamber on the Unification of Judgements, Case No: 1946/15, Decision No: 1947/7, Date:19.02.1947. The idea that article 112 should determine the prima facie contractual remedy is well explained by Sanlı; see: supra note:2, p:402,403.

[17] Law No:6098, Official Gazette No: 27836, Date of Entry into Force: 4/2/2011.

[18] Kemal Oğuzman and Turgut Öz, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (12th edn, Vedat Kitapçılık 2014, Volume1) p: 456, 461.

[19] Charles Wild and Stuart Weinstein, English Law (17th edn, Pearson 2013) p:439.

[20] Lord Parker in Stickney v Keeble [1915] AC 386 at 419.

[21] Jill Poole, Textbook on Contract Law (13th edn, Oxford University Press 2019), p: 408;see: Beswick v Beswick [1968] AC 58 (p 520, Chapter 11, section 6A)

[22] Supra note:19, p:473

[23] Supra note:19

[24] Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd, [1997] 2 WLR 898 (HL)

[25] Supra note:19

[26] Patel v Ali [1984] Ch 283

[27] Ibid, para:288

[28] Ibid

[29] Supra note:2, p:472-473

[30] M. Kemal Oğuzman and Nami Barlas, Medeni Hukuk / Civil Law (20th edn, Vedat Kitapçılık 2014), p:260

[31] These examples are very similar to the cases establishing the promissory estoppel doctrine of the English Law. For more on this see: Lale Sirmen, Eşya Hukuku / Law of Property (3rd edn, Yetkin 2015), p:304-308

[32] See: above

[33] The need for introducing limits on the specific performance claims is also shared in: supra note:2, p: 472-473.

[34] Law No:2004, Official Gazette No: 2128, Date of Entry into Force: 19/6/1932.

[35] Indeed, article 38 of the Turkish Constitution reads: “No one can be deprived of their freedom solely due to the fact that they failed to fulfill a contractual obligation.”

[36] Supra note:2, p:422

[37] Supra note:19

[38] See above:C2

[39] Pierre Terchier, Pascal Pichonnaz and H.Murat Develioğlu, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (1st edn, Oniki Levha 2016), p: 382. ;Robinson v Harman (1848) 1 Ex 850

[40] See: supra note 13, p:222-224(for causation)

[41] Kemal Oğuzman and Turgut Öz, Borçlar Hukuku Genel Hükümler / Law of Obligations General Provisions (12th edn, Vedat Kitapçılık 2014, Volume2) p: 53

[42] Supra note:13, p:214

[43] Nicolene Ltd v Simmonds [1953] 1 ALL ER 822

[44] Supra note:13, p.211

[45] Supra note:2, p:483

[46] Ibid, p: 502

[47] Ibid, p: 501

[48] Ibid

[49] Ibid

[50] Ibid, p: 503

[51] Ibid, p:503-504

[52] Robinson v Harman (1848) 1 Ex 850; Supra note: 43, p: 111 

[53] Supra note:2, p:506

[54] Ibid

[55] For more on this see: Supra note:2, p:104

[56] Thompson Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177

[57] Supra note:2, p: 509

[58] Miliangos v George Frank (Textiles) Ltd [1976] AC 443

[59] Supra note:2, p.509-510