PRIMARY AND SECONDARY RIGHTS AND PRIMARY AND ANCILLARY OBLIGATIONS IN DEBT RELATIONSHIPS

In a debt relationship, rights consist of primary rights arising from the main purpose and secondary rights that are auxiliary. Primary rights are further divided into essential rights and ancillary rights. Secondary rights consist of rights that create new legal situations, objections, and defenses. Regarding primary rights, the right to claim and the right to demand are the essential rights of the debt relationship. In fully bilateral contracts, both parties possess the right to claim. For example, in a sales contract, the right to demand the goods for the buyer and the right to demand the price for the goods for the seller are expressed as the right to claim. The essential right, representing the right to claim, is always present in a debt relationship. It is also necessary to mention the relative aspect of the right to claim. It can only be asserted against the relevant party. Ancillary rights, the other type of primary right in a debt relationship, are dependent on the primary rights and arise according to the will. The existence of an ancillary right is impossible in a situation where there is no right to claim. Ancillary rights can secure or expand the primary right. For example, a guarantee obligation arises from an ancillary right. In this case, a guarantee has been established to secure the payment of the debt. The guarantee terminates upon payment of the debt. In other words, the ancillary right ends with the termination of the claim right. An example of extending a primary right is the application of interest. Applying interest to a debt under certain conditions demonstrates the existence of an ancillary right that extends the primary claim right.

The difference between debt relationships and other legal transactions is the presence of one or more obligors and obligations. The source of these obligations will also vary. Obligations can arise from contracts, non-contractual sources of debt, and the principle of good faith. Obligations arising from contractual debt relationships are divided into primary and secondary obligations. All obligations arising from a contract represent primary obligations. Secondary obligations consist of primary and secondary performance obligations, as well as compensation obligations arising from the breach of secondary obligations.
The primary obligations of a debt relationship are the primary (performance) obligation and secondary obligations. The performance obligation is the primary obligation of the debtor towards the creditor. It constitutes the main subject of the debt relationship. It is further divided into primary performance obligations and secondary performance obligations. The primary performance obligation constitutes the essential element of the contract. In other words, it determines the type and nature of the contract. The item sold and the consideration are primary performance obligations. For example, the essential elements in a lease agreement are the rent and the property to be leased. The primary obligations in a lease agreement are the transfer of the property by the lessor and the payment of the rent by the lessee. The fundamental difference between primary and secondary obligations is that primary obligations can be directly challenged in court. Secondary obligations do not constitute an essential element of the contract. They can arise from law, contract, or the principle of good faith. They are dependent on and secondary to the primary obligation. They can be performed independently of the primary obligation. In other words, they can be demanded and sued for separately from the primary obligation. According to Article 317 of the Turkish Code of Obligations, the lessee is obliged to pay the cleaning and maintenance expenses necessary for the ordinary use of the leased property. Here, there is a secondary obligation arising from the law.
Secondary obligations are dependent on primary obligations, do not have an independent existence, and do not give the creditor the right to file a lawsuit for performance. The breach of a secondary obligation will give the creditor the right to claim compensation for the damage arising from this breach. Secondary obligations can be of a supportive or protective nature. In general, the principle of good faith constitutes these obligations. For example; The seller is obligated not to damage the item sold. This is an ancillary obligation that assists in ensuring the proper performance of the contract. As another example, a sales representative's obligation to provide information on how to use the electronic device they are selling can be described as a duty to inform. This is a protective ancillary obligation unrelated to the performance of the contract.

Intern Law Faculty Student Mert Emir Balcı