CONCEPTS OF NEGATIVE / POSITIVE HARM

Before discussing the concepts of negative and positive damages, it is appropriate to define damage. Damage is the failure of a debtor to properly or completely fulfill their obligation in a debt relationship. Damages can arise from contracts or torts. As a result, the injured party has the right to claim compensation for the damage. The party causing the damage is obligated to compensate for it.
Damages arising from contracts are divided into two categories: negative and positive damages. Negative damage refers to the loss of trust resulting from the non-fulfillment of the terms of a contract that was believed to be fulfilled or complied with. It is calculated by considering the missed opportunities and chances based on the expectation of the contract's fulfillment. For example, the failure to establish a contract that was expected to be established constitutes negative damage. Similarly, negative damage will arise if a service contract, which was thought to have legal effect, becomes invalid. Positive damage, which is considered a favorable damage, refers to the non-fulfillment or improper fulfillment of the contract. In other words, the non-performance of the obligation leads to positive damage for the creditor. This damage is the difference between the creditor's financial situation if the debt had been properly fulfilled and its financial situation if the debt had not been fulfilled. The concept of damage does not evoke positive connotations. This raises the question of why this type of damage is defined as positive damage. The question, "If the debt had been fully fulfilled, what would the creditor's (the injured party's) current assets be?" is approached positively to calculate the existence and amount of the damage. Therefore, this type of damage is called positive damage.
It should be noted that both types of damage arise only from breach of obligation; negative or positive damage does not arise from tort. The debtor must prove that they are not at fault to avoid paying compensation for the damage. Any prior agreement stating that the debtor is not liable for gross negligence is legally null and void. Therefore, compensation will only be paid if fault exists.

Intern Law Faculty Student

Mert Emir Balci