The Issue of Enforcement in Court Decisions Involving Reciprocal Obligations: Performance First, or Follow-up First?

The enforcement of judgments involving reciprocal obligations is one of the most problematic areas of Turkish enforcement law. Especially in consumer disputes, contracts for work, sales contracts, and defective goods cases, courts frequently issue judgments imposing obligations on both parties. However, the Enforcement and Bankruptcy Law No. 2004 does not contain a clear, specific regulation regarding the order and technique for enforcing such judgments. The main problem in current practice arises precisely here: There is a court decision, but can the creditor demand the debtor's performance by force without fulfilling their own obligation at all, or at least without making a proper offer of performance? Existing positive law does not provide a direct, single-article answer to this question; the solution is established by interpreting the rules on the order of performance in the Turkish Code of Obligations together with the general provisions on enforcement of judgments in the Turkish Enforcement and Bankruptcy Law.

Therefore, in the enforcement of judgments involving reciprocal obligations, the main issue is not so much "can enforcement proceedings be initiated?" but rather "at what stage can enforcement proceed?". In other words, such a judgment is not considered completely unenforceable in most cases; however, the creditor's ability to continue enforcement often depends on having performed their own obligation or at least offering to perform it in accordance with the procedure. Recent doctrinal studies and Supreme Court practice have also developed in this direction. In fact, the 2025 Draft Law on Compulsory Enforcement explicitly states that the lack of clear provisions in the existing Law No. 2004 leads to serious problems in practice and includes a special article for judgments involving reciprocal obligations.

1. What is a judgment involving reciprocal obligations?

A judgment involving reciprocal performance differs from a classic conviction that only imposes an obligation on the defendant. In such judgments, a two-way performance relationship is established, where one party will return something and the other will pay a price; one will deliver defective goods and the other will replace them with faultless equivalents; one will issue a promissory note and the other will pay a specific amount. In legal doctrine, there has long been debate, particularly regarding judgments involving "reciprocal and simultaneous performance," concerning both whether courts can issue such decisions and, if so, how they should be enforced. It is also explicitly stated that the current legislation, either in the Code of Civil Procedure or the Enforcement and Bankruptcy Law, does not contain a direct enforcement provision specific to this category.

What is important here is how the operative clause of the judgment establishes a connection between the obligations. If the operative clause states that the obligations are "together," "reciprocally," "in return," "simultaneously with delivery," or in a way that effectively produces the same result, it cannot be treated as an ordinary monetary judgment or a simple delivery judgment in terms of enforcement. This is because the essence of the judgment indicates that one party's obligation is not independent of the other party's obligation. In this case, a problem of the order of performance arises.

2. Order of performance in substantive law: The decisive role of Article 97 of the Turkish Code of Obligations

The legal basis for the dispute during the enforcement phase is Article 97 of the Turkish Code of Obligations. According to this provision, the party demanding performance of a contract imposing reciprocal obligations must have performed or offered to perform their own obligation, unless, according to the terms of the contract, they have the right to perform later. This is, in classical terms, the rule of simultaneous performance. Therefore, it is not possible for the party demanding performance from the other party to first disregard their own obligation; otherwise, the other party may raise the defense of non-payment. Article 98 of the Turkish Code of Obligations also regulates the possibility of avoiding performance until security is provided, in the event that the other party becomes insolvent.

Execution law cannot operate separately from substantive law. Even if a court decision becomes a judgment, the structure of the debt relationship on which the judgment is based does not completely disappear. On the contrary, in the execution of judgments involving reciprocal obligations, the balance of simultaneous performance in substantive law is transferred to the technique of compulsory execution. Therefore, the creditor cannot say, "I have a judgment; now I can only compel the debtor to perform." If the judgment involves reciprocal obligations, the creditor must also demonstrate, during the execution phase, that they have performed their own obligation or at least are prepared to perform it in accordance with the procedure.

3. Why is there a clear regulatory problem in the current Enforcement and Bankruptcy Law?

The Enforcement and Bankruptcy Law No. 2004 prescribes different methods for the enforcement of judgments depending on the type of obligation. Article 24 applies to the delivery of movable property, Article 26 to the eviction and delivery of immovable property, Article 30 to the performance or non-performance of an action, and Article 32 to the provision of money and security. These provisions show how the enforcement order should be prepared and how compulsory enforcement should be carried out according to the nature of the obligation; however, they do not contain a clear specific procedure regarding when and how the creditor should assert their own obligation in judgments involving reciprocal obligations. This is precisely where the current legal gap arises.

Current legal assessments also indicate that the enforcement of judgments involving reciprocal and simultaneous obligations is not explicitly regulated in the current law, leading to differing opinions both in legal doctrine and practice. The explanatory memorandum of the 2025 Draft Law on Compulsory Enforcement reiterates this observation, explicitly stating that the absence of a provision in Law No. 2004 "causes very significant problems in practice." It appears that Article 64 of the draft law aims to fill this gap. This data shows that the problem is not theoretical, but rather a current and structural problem of implementation.

4. How does the problem of order of performance arise in practice?

The most typical examples are decisions ordering the delivery of a faultless equivalent in exchange for the return of a defective vehicle, or refunding the price in exchange for the return of a defective product. In this case, the creditor cannot simply pursue the part of the enforcement proceedings that the debtor is to deliver or pay, neglecting their own obligation to return the goods. Current doctrinal studies and references to Supreme Court decisions emphasize that for the creditor to initiate enforcement proceedings, they must at least offer to perform their own obligation; and for the proceedings to proceed, they must actually perform that obligation if necessary.

Therefore, it is necessary to distinguish between two separate stages here. The first stage is the initiation of enforcement proceedings. The prevailing approach in legal doctrine is that the creditor must also offer performance of their own obligation when filing the enforcement request, but that the requirement of prior actual delivery is not mandatory in every case simply for the initiation of enforcement proceedings. The second stage is the continuation of the enforcement proceedings. At this stage, the Supreme Court takes a stricter stance; it accepts that the creditor cannot continue the enforcement proceedings without fulfilling their own obligation or documenting it within the meaning of Article 33 of the Enforcement and Bankruptcy Law.

5. The Supreme Court's approach: Enforcement proceedings can begin, but the party concerned must fulfill their own obligations in order to continue the proceedings

In its decision numbered 2021/12358 E., 2022/5006 K., the 12th Civil Chamber of the Supreme Court of Appeals summarized the ruling as follows: If the judgment subject to enforcement involves reciprocal obligations, the creditor must fulfill their own obligation in order to continue the enforcement proceedings. If no document proving fulfillment of the obligation, as defined in Article 33 of the Enforcement and Bankruptcy Law, is presented, and no application is made to the enforcement office for the return of the vehicle subject to the judgment, the enforcement proceedings cannot continue. This decision is one of the most frequently cited precedents in current practice.

Similarly, in the Supreme Court decisions cited in legal doctrine, it is stated that the creditor must submit documents proving that they have fulfilled their obligation along with the request for enforcement, and that this proof must be based on strong documentation within the meaning of Article 33 of the Enforcement and Bankruptcy Law, due to the limited inspection authority of the enforcement officer. This approach shows that the enforcement office is not the authority to resolve the substantive dispute; it can only conduct a limited, document-based control. Therefore, in judgments involving reciprocal obligations, a simple statement of "I have fulfilled" is not always sufficient.

6. Which procedure does the enforcement office follow?

In judgments involving reciprocal obligations, the method of enforcement is determined according to the nature of the debtor's obligation. If the debtor is to pay money, Article 32 of the Enforcement and Bankruptcy Law (EBL) generally applies; if they are to deliver movable property, Article 24 applies; and if they are to perform a service, Article 30 applies. However, this general choice of article does not alone solve the problem of the order of performance. For example, applying Article 32 to a monetary debt does not mean that the creditor's own obligation to return the debt becomes irrelevant. Indeed, current legal doctrine clearly states that even if enforcement of a monetary debt is requested, the creditor must also offer performance of their own obligation when filing the enforcement request.

The doctrine also states that a practical solution is for the creditor to deposit their monetary obligation into the enforcement file along with the request for enforcement; this method is particularly applicable in cases where a refund is required in exchange for the return of a good. The same source also notes that some Supreme Court decisions accept the deposit of the monetary debt into the file along with the request for enforcement. This approach shifts the problem of order of performance from a "who will perform first?" debate to a "how can simultaneous performance be secured within the enforcement file?" framework.

7. The content of the enforcement order and the importance of its operative clause

In the enforcement of judgments involving reciprocal obligations, another point as important as substantive law is the clear wording of the judgment. According to Article 297 of the Code of Civil Procedure, the obligations imposed on the parties and the rights granted to them must be clearly stated in the concluding part of the judgment, leaving no room for doubt or hesitation. If the judgment does not clearly indicate whether the obligations are simultaneous, interconnected, or independent, serious problems become inevitable during the enforcement phase. This is because the enforcement office cannot re-establish the judgment; it can only enforce the existing one.

If the judgment is not sufficiently clear, the solution is not for the enforcement office to interpret it, but to seek clarification in accordance with Article 305 of the Code of Civil Procedure. This same article explicitly stipulates that if there is any doubt regarding the execution of the judgment, the parties may request clarification; however, the rights and obligations in the judgment cannot be expanded or altered through clarification. Therefore, in the problem of the order of performance, a well-written judgment takes precedence even over a well-executed enforcement file. If formulas such as "payment in return," "simultaneous exchange with delivery," or "delivery by the plaintiff first, then the defendant's payment obligation" are not clearly stated in the court decision, the enforcement phase will be stalled from the very beginning.

8. What happens if performance of the counter-obligation becomes impossible?

The most challenging cases are those where the creditor's counter-performance becomes impossible afterwards. For example, a court judgment may stipulate the delivery of a faultless equivalent in exchange for the return of a defective vehicle; however, the vehicle to be returned is no longer in the creditor's possession. Some regional court decisions cited in legal doctrine accept that in this situation, enforcement of the judgment is no longer possible, and the enforcement office cannot continue the proceedings on its own by declaring that "the obligation to return the vehicle has been converted into a monetary payment." Conversely, the Supreme Court's former 8th Civil Chamber has also held that, if the necessary conditions are met, the value of the item to be delivered should be determined by an expert, and the proceedings should continue accordingly. This area remains largely unified even today.

Therefore, the safest approach in practice is for the creditor to check whether their own obligation can still be performed in kind before initiating enforcement proceedings with a judgment involving reciprocal performance. If performance in kind has become practically or legally impossible, it may be more appropriate to consider the need for additional litigation, clarification, or a new performance order instead of directly forcing the enforcement file with the existing judgment. Otherwise, the file may become bogged down with complaints and requests for suspension of enforcement.

9. What does the 2025 Draft Law on Compulsory Execution say?

The Draft Law on Compulsory Enforcement dated 2025 is noteworthy as it demonstrates the current reform trend. Article 64 of the draft provides for a special regime for the enforcement of judgments involving the performance of reciprocal obligations. According to this, the debtor may apply to the enforcement court within two weeks of the notification of the enforcement order, claiming that the creditor has not performed or offered to perform their obligation, and request a stay of execution. The rationale for the draft also explicitly states that the burden of proof that the creditor has performed or offered to perform their obligation rests with the creditor, and that significant problems have arisen in practice due to the lack of a specific provision on this matter in the existing Law No. 2004. This regulation is not yet a legal rule in effect; however, it is important as it shows that the existing problem has been acknowledged at the legislative level.

Conclusion

The problem of the order of performance in the enforcement of judgments involving reciprocal obligations is not merely a technical matter; it is a reflection of the balance of simultaneous performance in substantive law, applied to compulsory enforcement law. Article 97 of the Turkish Code of Obligations states that a party who has not performed their own obligation, or at least has not offered to perform it in a proper manner, cannot demand performance from the other party. Since the Turkish Enforcement and Bankruptcy Law does not provide a clear, specific procedure for such judgments, the solution today is established by interpreting Article 97 of the Turkish Code of Obligations, Articles 24-30-32 of the Turkish Enforcement and Bankruptcy Law, and Articles 297-305 of the Turkish Code of Civil Procedure together.

The most reliable conclusion drawn from the current practice is this: The creditor can initiate enforcement proceedings based on a judgment containing reciprocal obligations; however, for the proceedings to proceed properly, the creditor must either perform their own obligation or offer to do so in a proper and verifiable manner. If the judgment clause is unclear, clarification should be considered; if the counter-obligation has become impossible to perform in kind, the limits of the existing judgment should be carefully analyzed. In short, the problem in this area is often not "initiating enforcement," but "conducting the enforcement in the legally correct order." The fact that the 2025 Draft includes a specific article on this matter also shows that the gap in the current system has become undeniable.