Petition for an Uncertain Claim Arising from a Contract for Work

TO THE DUTY PRIMARY CIVIL COURT
OF ISTANBUL

PLAINTIFF: Name and Surname-(Turkish Republic Identity Number: …)-Address

ATTORNEY: Lawyer's Name, Surname, and Address

DEFENDANT: Name and Surname - Address

SUBJECT: This is an uncertain claim for compensation under Article 107 of the Code of Civil Procedure, filed for damages incurred due to the defendant's incomplete elevator work, arising from a contract for services, with a minimum claim amount of ... TL.
CLAIM VALUE: ... TL

EXPLANATIONS:

1. A Sales Promise and Construction Agreement in Exchange for Land Share was signed between the plaintiff client and the defendant, with the transaction dated …/…/… and numbered … at [ X ] Notary Public. According to this agreement, the defendant-contractor undertook to construct a building consisting of one block, with two apartments on each floor, on the land owned by the plaintiff client/employer in [ Y ] Neighborhood. This agreement, signed between the parties, is a contract for work as regulated in Articles 470 and subsequent articles of the Turkish Code of Obligations.
2. The defendant contractor failed to complete the work in accordance with the contract for work, which is a mutually binding agreement, and left it incomplete. Despite the clear provision in Article 5 of the contract stating that "The elevator shall be installed by the contractor," the defendant contractor did not install an elevator in the building. This constitutes a breach of contract and represents incomplete work. According to Article 475, paragraph 2 of the Turkish Code of Obligations, which states that "the employer's right to compensation under general provisions is reserved," and also in accordance with Articles 123 and subsequent articles of the Turkish Code of Obligations, it is established by law that the defendant contractor is liable to the employer for compensation due to the incomplete work.
3. Incomplete work encompasses work not performed due to the failure to properly execute the contract. In this context, the client has suffered damages because the defendant failed to cover the costs of purchasing, installing, and operating the elevator. To determine the extent of the damages suffered by the plaintiff, we request that your court conduct an on-site inspection of the building with a Mechanical Engineer as an expert witness. Since determining the cost of installing and delivering the elevator in working condition requires expertise, an uncertain claim (compensation) for a minimum of …-TL has been filed at this stage, in accordance with Article 107 of the Code of Civil Procedure.

EVIDENCE:

1. between the parties, drawn up by [X] Notary Public, dated …/…/… and numbered …,
2. The title deed of the property located in [ Y ] Neighborhood, which is the subject of the lawsuit,
3. An inspection will be carried out at the building's entrance
4. An expert report prepared by a Mechanical Engineer will be required to determine the amount of damages incurred due to breach of contract
5. Witness testimony, if necessary
6. Oaths and other legal evidence.

LEGAL GROUNDS: Turkish Code of Obligations, Turkish Code of Civil Procedure, and other relevant legislation.

CONCLUSION AND REQUEST:
For the reasons briefly stated above, we respectfully request and demand that the court accept the case, order the defendant to pay a minimum of …-TL in compensation, to be increased when it becomes possible to determine the full and definitive damages suffered by our client due to the incomplete work (after the expert report is obtained), together with commercial interest accruing from the date of the lawsuit, and that the court costs and attorney's fees also be borne by the defendant. …/…/…

Plaintiff's
Attorney's Name and
Surname

 

Examples of Supreme Court Decisions That Can Serve as Petition Samples

23rd Civil Chamber, Case No. 2016/7899 E., Decision No. 2017/518 K.

– DECISION –
“The plaintiffs’ attorney argued that a construction contract in exchange for land shares was made between the plaintiffs … and the defendants …, and that their other clients were individuals who purchased independent units from the defendant; that the constructed building had many deficiencies and defects in its workmanship; and that since they could not know the full and precise value of the damages suffered by their clients as of the date of the lawsuit, they filed their lawsuit as an uncertain claim lawsuit pursuant to Article 107/1 of the Code of Civil Procedure, demanding and suing for the collection of the compensation to be determined for each plaintiff from the defendants.
The defendants argued for the dismissal of the lawsuit.
The court, based on the claims, defenses, evidence, and the entire case file, ruled that the amount and value of the claim could be fully determined as of the date the lawsuit was filed, and that the plaintiffs had no legal interest in filing an uncertain claim lawsuit; therefore, the lawsuit was dismissed procedurally due to the lack of a prerequisite for the lawsuit, pursuant to Articles 114/1-h and 115/2 of the Code of Civil Procedure.
The plaintiffs’ attorney appealed the decision.”

"The lawsuit for an uncertain claim is regulated in Article 107 of the Code of Civil Procedure No. 6100. According to Article 107 of the Code of Civil Procedure, if the creditor cannot be expected to determine the amount or value of the claim fully and precisely at the time the lawsuit is filed, or if this is impossible, the creditor may file a lawsuit for an uncertain claim by specifying the legal relationship and a minimum amount or value. If, as a result of information provided by the opposing party or an investigation, it becomes possible to determine the amount or value of the claim fully and precisely, the plaintiff may increase the claim stated at the beginning of the lawsuit without being subject to the prohibition against expanding the claim. In cases where a partial performance lawsuit can be filed, a declaratory judgment lawsuit can also be filed, and in this case, the existence of a legal interest will be accepted.
The lawsuit concerns the claim for the collection of the cost of incomplete and defective workmanship arising from construction contracts in exchange for land shares. At the beginning of the lawsuit, it was not possible for the plaintiffs to determine the value of the incomplete and defective workmanship. This claim was determined by expert technical appraisers based on market prices..." Since the amount of the claim needs to be determined and established, the plaintiffs have a legal interest in filing the case as an uncertain claim case. Our Chamber's practices are also in this direction (Our Chamber's ruling dated 26.05.2016, case no. 2015/3273 – decision no. 2016/3272)."

 

6th Civil Chamber, Case No. 2021/4013 E., Decision No. 2022/2265 K.

- DECISION -

The lawsuit concerns a claim for reimbursement of the cost of remedying defective and incomplete work arising from a construction contract. Following a retrial conducted in accordance with the reversal order, the court rendered a decision partially accepting the claim against the defendant contractor and rejecting it against the defendant subcontractor. This decision was appealed by the plaintiff employer's attorney.

Theplaintiff's attorney stated in the lawsuit petition that the defendant contractor, … A.Ş., undertook the construction of the additional building for the research hospital, while the other defendant, … A.Ş., acted as a subcontractor for the elevator work; that the elevator and ventilation system constantly malfunctioned; that the ventilation system had a blowing line but lacked a suction line; that the absence of a suction line caused an odor in the hospital; that the elevator was not suitable for the patient capacity; that the elevator cabin was approximately ten centimeters away from the patient, thus jeopardizing safety; that despite necessary warnings, the defects were not rectified; and that therefore, a new tender was held to complete the incomplete and defective work. The plaintiff requested the recovery of the tender price and maintenance and repair costs.

According to Article 474 of the Turkish Code of Obligations No. 6098, a contract for work stipulates that the employer is obligated to inspect the work and report any obvious defects as soon as possible (within a reasonable time) after delivery, in accordance with the ordinary course of business. Furthermore, according to Article 472/last paragraph of the Turkish Code of Obligations, if a defect is hidden and becomes apparent later, the employer is obligated to notify the contractor immediately; otherwise, the employer is deemed to have accepted the work as is. While the employer has a notification obligation for both obvious and hidden defects, it is considered that the contractor, having already accepted responsibility for obvious and hidden defects in workmanship, materials, and construction for the duration of the warranty period, waives the employer's obligation to notify and agrees in advance, as of the contract date, to remedy these defects free of charge if they become apparent within the warranty period. The employer, without the obligation to give notice, may, within the statute of limitations, exercise their optional rights regarding apparent and hidden defects that arise during the warranty period and demand that the contractor remedy the defects, or they may file a lawsuit against the contractor and avoid paying the work price up to the amount of the defect remedy (Supreme Court 15th Civil Chamber, June 19, 2014, case no. 2013/4976 E. 2014/4282 K., and similar practices and precedents).
Incomplete work refers to work that should have been done according to the contract and its annexes but was not done (left incomplete). The cost of incomplete work can be claimed at the prevailing market prices on the date obtained by adding the time it would have taken to complete this work to the delivery date. It is not necessary to make a reservation or issue a warning at the time of delivery in order to claim the cost of incomplete work. The provisions of Articles 474-478 of the Turkish Code of Obligations do not apply to incomplete work.

Turning to the specific case after these explanations; the plaintiff stated that the completion of the construction was carried out by the defendant, that the elevator work was subcontracted, that deficiencies and defects subsequently emerged in the elevator and ventilation works, that an assessment was conducted regarding these issues, and that the works were re-tendered. Therefore, the plaintiff requested compensation for the payments made to third parties to remedy the defects and deficiencies, as well as for the repair and maintenance costs.

The court's task is to form a new expert panel specializing in the subject matter, first obtaining the tender documents and all their annexes (including the General Conditions of Contract), evaluating the clauses of the contract and related tender documents, and considering that even if the tender and the specific situation do not match according to Article 472/last paragraph of the Turkish Code of Obligations, the defendant contractor is liable for defects and deficiencies related to the elevators because he/she has not claimed or proven that he/she fulfilled his/her warning obligation. The report should determine what the defects and deficiencies related to the elevators and ventilation systems are, the cost of remedying them, and, considering that the employer should have requested and filed a lawsuit for the remedy of the defects and deficiencies within a reasonable time from the delivery date, and that delaying this request and filing a lawsuit could increase the damages, the contractor cannot be held liable for the increased damages in this case, in accordance with Article 52 of the Turkish Code of Obligations, by way of reference to Article 114 of the Turkish Code of Obligations. The court should then decide to register and accept this amount as a claim in the bankruptcy estate.