18.07.2023

Authors: Sema Çelebi, Serdarhan Güler

Each type of due date has sui generis consequences and characteristics so that it can be stated some topics such as the due date of a debt, the debtors’ defaults and whether the necessary conditions for use of optional rights are fulfilled or not. It may be described due date according to qualifications as indefinite, fixed and definite. Although there are various cases arising from the due terms in commercial life, some decisions of the Court of Appeal do not include clear and precise determinations about this subject.

1-   A General View to Due Types

In the Article 90 of the Code of Obligations (hereinafter referred to as “the Code”), any debt becomes due as soon as it arises unless it is understood from a legal relationship or the performance time is appointed by the parties. However, if the future time is appointed in order to perform a debt, it will become due at that specified time.

As is known, the Debtor of a due debt will default by the warning of the Creditor is settled in the Art. 117/1 of the Code. According to subsection 2 of the same article, once the parties appoint the performance time in consensus, there is no need for a warning in order to put the Debtor in default on the appointed day.

2-   What is the meaning of an Indefinite Due Date?

An indefinite due date is in question when the performance time of the debt does not point to a specific day. The Court of Appeal acknowledges an indefinite due date in the circumstances that it is not determined directly date. For example, when the due date is tied to the death of a person, he/she exactly will die sooner or later but the exact timing is unknown. Nevertheless, the main point is that it is necessary to express that the event will definitely occur although it is not clear what time it will. Such, if the parties attribute payment to the birth of a child, it shall be described as a “condition” instead of a “due date” because they cannot know whether the child will be born or not for certain. In case of an indefinite due date, a warning is a need in order to put the Debtor in default according to Art. 117 of the Code because the performance time of the debt is not certain.

3-   What is the meaning of a Fixed Due Date?

“Fixed due date” is one of the due types mentioned when the parties of an agreement appoint the performance time as a fixed time. Examples of fixed Due dates includes dates like “10th of August” or “six months after the signing of the agreement”. In the case of fixed due date, there is no need for a warning in order to put the Debtor in default. Yet in synallagmatic agreements, the Creditor who wants to choose one of the options, compensation of positive damages or termination of a contract, should give the Debtor a reasonable time unless no situation that does not require a given time according to Art. 124/1 of the Code. The difference between a Fixed Due Date and a Definite Due Date mentioned below appears at this point.

4-   What is the meaning of a Determinable Due Date?

It can be mentioned the existence of a Determinable Due Date when the Parties do not know performance time at the time of the contract and a clear date will emerge due to a later event. For example, in agreements like “repairs are made within 10 days from the delivery” and, “payment will be made within 10 days from the issuance of the invoice”, the time of debt performance is not clear at the point of the contract. However, the time becomes detectable upon the realization of the expected event.

After the establishment of the contract and before the performance, there is a controversial situation regarding whether the due date will be considered fixed or indefinite in cases where it can be determined precisely when the debt will be fulfilled. In this topic, there is no consensus in doctrine and the decisions of the Court of Appeal. According to an opinion, if a due date can be detectable precisely and definitely at the contracts’ establishment time the Fixed Due Date is in question. This is because the Debtor must know the performance time clearly and definitely at the beginning so that it is no need for a warning anymore. Therefore, a warning should be sent in order to put the Debtor in default such as an indefinite due date when Determinable Due Date is mentioned according to the first opinion. In regard to the other opinion, even if the time of performance is not precise that it becomes definite and clear throughout the process after the conclusion of the contract is necessary and sufficient in order to mention about existence of the Fixed Due Date.  That is why there is no need for a warning to put the Debtor in default.

Another topic about Determinable Due Date is in regard to the Art. 1530/II of Turkish Commercial Code. Under the Art. 117/II, c 1 of the Code of Obligations whether the Fixed Due Date is in question or not is controversial as explained above. Yet, that the default will occur without any warning is regulated in the Art. 1530 of the Turkish Commercial Code. It is an important subject because the Turkish Commercial Code is a special code compared with the Code of Obligations.

5-   What is the meaning of a Definite Due Date?

”Definite due date” is a type of Fixed Due Date. All the definite ones are also fixed but any fixed due date may not be definite. If the parties agree that they will not absolutely accept the performance of a debt after the clear date, this type is meant to be a “Definite due date”.

In case of the definite due date, the parties need neither to send a warning nor to give a reasonable time in order to benefit of optional rights. This is regulated in the first and second subsection of Article 124 in the Code. For instance, when the couple makes an agreement with a photographer about taking some photos at the wedding ceremony, they lose their benefit from this agreement anymore unless the photographer comes to the ceremony. In the third subsection of the relevant Article, "If it is understood from the contract that the performance of the debt is not realized at a certain time or within a certain period, the performance will no longer be accepted." and no time is required. An example of this case may be given receiving the goods by a carrier at the latest precise time by making various preparations

In conclusion;As explained in detail above, any due type has sui generis consequences and characteristics so that it can be stated some topics such as the due date of a debt, the debtors’ defaults and whether the necessary conditions for the use of optional rights are fulfilled or not. Therefore, even if a Definite due date is a type of Fixed due date, we are of the opinion that the Court of Appeal use of them as synonymous is the wrong view. This note involves some brief information about the due date encountered frequently during commercial life. Especially while the parties are preparing contracts, they should be careful in order to avoid any other problems.