Newsletter-21

266 NEWSLETTER 2016 ligations that are explicitly prohibited from being subject to a penalty, such as the obligation of rental payment for residential and enclosed workplaces, or penal clauses that are to the detriment of the consumer in consumer contracts. Further, agreements stipulating that the guaran- tor shall also be liable under contractual penalty are null and void. As per Article 182/2 of the TCO, if a primary obligation is invalid for any reason or, unless otherwise agreed, later becomes impossible to fulfil due to a reason not attributable to the debtor, the creditor cannot claim the fulfilment of the penalty. The invalidity of the primary obligation may be due to, among other things, violation of the law, ethics and per- sonal rights, as well as non-compliance with its formal requirements, or lack of legal competence. If the contract for the primary obligation is subject to a formal requirement, a penal clause must be also agreed to through following the same formal requirement. Similar to the primary obligation, any type of penalty can be regulated under a contract. Although the majority of the time monetary penalties are preferred, in practice, other forms of penalties, such as the obligations to give, to do, or not to do are also possible, save for obligations that are in violation of the law, ethics and personal rights. Notwithstanding, Article 182/2 of the TCO sets forth that the penal clause being rendered invalid, or later becoming impossible to fulfil due to a reason not attributable to the debtor shall not affect the valid- ity of the primary obligation. Relationship of Contractual Penalty with the Fault of the Debtor and Damages of the Creditor If an obligation is not duly fulfilled, or not fulfilled at all, the debtor is responsible to recover the damages of the creditor, unless it proves that no fault can be attributed to it. In accordance with this general principle of the Turkish law of obligations, claiming the con- tractual penalty is subject to the existence of debtor’s fault. Article 182/2 of the TCO explicitly clarifies this by regulating that the debtor shall not be liable for the contractual penalty if its obligation becomes impossible to fulfil without its fault yet allows the parties to agree otherwise under the contract. Following the evidentiary rule, it is suf- ficient for the creditor to prove that the obligation has not been duly fulfilled, but not the fault of the debtor.