ERDEM-NEWSLETTER-2018-metin

55 COMMERCIAL LAW Scope of Application The related provisions shall be applied only in the event of default in payment of the price in return for the goods or services, as set forth in the contracts, concluded for the procurement of the said goods and services, and with regard to the contracts that are concluded between two commercial enterprises. Within this scope, the said provision shall not be applied to the contracts that are concluded between a commer- cial enterprise and public institutions. The scope of application of Ar- ticle 1530 of the TCC is criticized as it does not protect SMEs against public establishments; whereas, it does protect the SMEs that supply goods and services against large and strong commercial enterprises 2 . Conditions for Default without Notice The moment when the debtor goes into default in the procure- ment of goods and services, and when the creditor is entitled to interest in this regard differs as to whether the parties have agreed to the date of payment, or the payment period. Default in Cases where the Payment Date or Term is Determined Pursuant to Article 1530/2 of the TCC, in the event that parties stipulate a day of payment or a payment period in their contract, the debtor be in default without any necessity of notice, and the creditor shall be entitled to interest, even if it is not stipulated in their contract. This provision contradicts the general provisions of the TCO with regard to the default of the debtor. Under Article 117 of the TCO, in order to be able to say that the debtor is in default, it is essential for the creditor to place the debtor into default. The only exception to this rule is the instance where the agreed term is qualified as a “specified term.” In other words, as per Article 117 of the TCO, the creditor must force the debtor into default, for the default of the debtor, in every case where a specified term is not stipulated in the contract. In fact, Article 1530 of the TCC provides that the debtor goes into default in all cases where a day of payment or payment period is agreed in the contract. 2 Çağlayan, Pınar : Mal ve Hizmet Tedarikinde Geç Ödemenin Sonuçları, Batıder, C.XXVII SA. 2, p. 218.