When the site is not handed over ready: the contractor’s time and delay-penalty defence

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When materials and the team are ready but the contractor cannot access the installation area, the contractual completion date alone does not establish responsibility for delay. Earlier works may be unfinished, scaffolding unusable or access owed by the client unavailable. Such an obstacle may affect time and penalties, but saying the site was unready does not explain every delay. The defence must document who undertook each preparation and which work the obstacle prevented, for how long.

First establish the scope of handover and the preparation obligation

This article concerns private-law construction and contracts for work. Public procurement, special payment specifications, consumer relationships or a different contractual chain require examination of their particular rules. Handover between the client and main contractor may differ from providing the subcontractor’s installation area ready. A handover recorded in a higher-tier contract does not prove that the subcontractor could actually work.

Check who must provide access, power, scaffolding, design, preceding works and work permissions under the agreement and annexes. Which area and state of readiness does the handover record cover? Are there reservations, photographs or subsequent correspondence? Separate the contractor’s own incomplete preparation from the client’s failure. Availability of workable areas also affects a claim of complete stoppage.

Why do readiness and a proper offer to perform matter?

Article 106 of the Turkish Code of Obligations regulates a creditor’s unjustified refusal of properly offered performance or failure to undertake preparations required for performance. The contractor must therefore also show its own readiness. Production completion, dispatch plans, team allocation and the specific preparation requested from the client should appear in one chronology. Automatically claiming an entire waiting period for a team that was never available weakens the defence.

For example, the client may owe floor preparation and power connections before cabinet installation. Even if the contractor manufactured the cabinets in time, the entire site cannot be assumed stopped where work on other floors remained possible. Identify when each floor became available, the installation sequence and opportunities to reallocate work. The link between the obstacle date and extension of completion may require technical explanation.

How did the Court of Cassation address an unready installation area?

In its decision of 10 September 2015, E.2015/1444, K.2015/4317, the Fifteenth Civil Chamber examined a cabinet and desk subcontractor’s defence that the installation area was not handed over ready. It stated that penalties could not be claimed for the period affected by the claimant contractor’s fault and reversed in the subcontractor’s favour for examination of agreements, the handover chain, inspection records, notice and evidence-preservation order. It did not itself award a particular extension or sum.

The same Chamber’s decision of 7 December 2015, E.2015/1772, K.2015/6218, illustrates the limit. Failure to provide planks necessary for usable scaffolding affected commencement, and completion was assessed accordingly and against the additional time given. Nevertheless, penalties still required calculation for subsequent contractor delay after the revised date. The client’s initial fault does not give the contractor unlimited immunity for later delay.

Notify the obstacle promptly and specifically

Article 472(3) requires immediate notification to the client of circumstances endangering proper or timely completion; failure may make the contractor responsible for resulting consequences. Specify the location, obstacle, affected work, preparation requested and expected time effect. A bare reservation of rights does not replace a missing programme. Retain evidence that the proper recipient received the notice.

Read contractual notice and extension procedures separately. There is no single automatic statutory seven- or fifteen-day application period for every obstacle. Equally, postponing immediate notification until the job ends is unsafe. Periodic updates during the obstacle and a resumption record when it ends are more informative than a general delay table prepared afterwards.

Separate the time defence from a claim for waiting costs

Defeating a delay penalty does not establish recovery of every waiting invoice. Breach, fault, damage and causation require separate assessment under Article 112. Document idle teams, equipment hire, storage and redispatch individually. Explain whether the contract price already covers the same cost and whether redeployment to another job could reduce it.

Unilaterally suspending work or ending the agreement is a separate legal choice. Article 110 refers creditor-default withdrawal to debtor-default provisions; assess maturity, notice, an appropriate additional period and election conditions under Articles 117, 123 and 125. A general site message is not invariably a valid withdrawal notice. Record completed work, materials and the other party’s demands before making an election.

Evidence preservation, court and enforcement routes

If the area will soon be completed or altered, consider evidence preservation with a legal interest under Article 400 of the Code of Civil Procedure. Check Article 401’s pre-action options of the merits court or competent local civil court of peace; after filing, the court hearing the action applies. Preservation differs from taking photographs, but neither awards damages nor automatically stops work. Seek an expert explanation of the actual obstacle and technical effect, rather than determination of contractual obligations.

For commercial litigation assess the commercial court and Article 5/A mediation for money claims; for ordinary non-commercial private-law disputes assess the general court and any special jurisdiction. The defendant’s domicile and place of performance matter under Articles 6 and 10. If a payment order seeks penalties, separately check Article 62’s seven days from service in ordinary non-judgment enforcement. Sending a delay defence to the client does not replace timely objection to the enforcement office.

Distinguish limitation from notice and procedural periods

Article 147(6) generally provides five years for claims arising from a contract for work; examine the contractor-gross-fault exception and the actual legal character of the claim separately. Maturity matters under Article 149; starting every claim at site handover is incorrect. Do not assume every demand interrupts limitation. Track notice, payment-order objection and court procedural periods separately.

For the contractor, a strong file follows the actual chronology from readiness through removal of the obstacle. The agreement, handover and site records, original correspondence, programme and costs should be consistent. The full guide below connects this preparation to specific document actions; it does not determine an extension, cancellation of penalties or entitlement to damages.

Sources

General information; individual documents, facts and procedures need separate review.

Unready site: the contractor’s time and document guide

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