A construction contract is a onerous contract that imposes debt on both sides.In return for the price that the land owner has committed to pay in the contract, the contractor undertakes the obligation to build. The primary obligations are construction and wages. The will of the parties over the primary obligations must be in harmony with each other. However, it is sufficient that the fee is implicitly agreed, and it is not necessary to determine at the time the contract is established.
The debt of the contractor ends with creating the structure and delivering it. For this reason, the contractor's delivery of a certain job to the employer is similar to the sales contract. Although the construction contract is a contract of instantaneous performance, it is similar to a contract of continuous performance in some aspects. Namely; In the construction contracts, the performance owed by the contractor includes not only the delivery of the work but also its construction. For this reason, long-term construction contracts have the characteristics of contract of continuous performance.
Obligations in the construction contract are as follows;
construction debt of the contractor, paying the price by the employer, or debt of the land owner to transfer the land shares, agreement between land owner or business owner and contractor
The most typical element of construction contracts is the element of creating the work within the scope of article 470 of the Turkish Code of Obligations. The second element is the payment of a price for the work.
TCO ARTICLE 470- "A work contract is a contract under which the contractor undertakes to create a work and the employer undertakes to pay a price in return."
a- Construction agreement in return for land share
Construction contracts in return for land share are mixed contracts as a result of the merger of a work contract and preliminary contract for real estate sale and the contractor builds on a land and the independent parts in the resulting structure are shared at a rate or depending on a sharing plan added to the contract. It is also known as construction contract in return for flat in practice.
These types of contracts are preferred because the landowner does not pay and the payment is made in kind, not money.
b- Construction Agreement in return for Revenue Sharing
This agreement is as follows:
In return for Revenue Sharing, the sale of the independent sections formed in the construction to be created in the Construction Contracts to third parties, either within the partnership to be established by the parties or by authorizing the contractor, and Sharing of the money (revenue) to be obtained between the landowner and the contractor at the percentages determined from the beginning.
c- Construction Contract in return for Fee (Value)
Construction Contracts in return for Fee (Value) are the contractor's delivery of a construction to the landowner on a lump sum or unit price.
Unit price refers to the determined price of each object of the same type. Amounts based on unit price are generally current values. Current value; It is an approximate wage list showing the material, labor, tools and average used in the calculation of unit cost analysis. These lists are prepared by the Higher Science Board affiliated to the Ministry of Environment and Urbanization. Therefore, these prices can be expressed as Public Works Unit 75 Prices (BBF).
The lump sum price is completely different from the unit price price. Here, the cost of the construction is determined by bargaining. It cannot be requested to increase the lump sum or to make a discount from it. It is also used as turnkey in practice. In the lump sum method, either part or all of the work is taken as basis.
d- Public Tender Construction Contract
The emerging needs of the public are met by private sector contractors through tendering. According to Article 2 of the Public Procurement Act, the procurement of goods and services from all kinds of resources used by various public institutions and the procurement of works are carried out in accordance with the provisions of this Law. These administrations are listed in the same article.
For example, public administrations within the scope of general budget and administrations with special budget, special provincial administrations and municipalities and their subordinate; revolving fund organizations, associations (except those operating as professional organizations and their parent organizations), legal persons; The construction works of organizations such as government business enterprise consisting of state economic organizations and state economic enterprises are within the scope of this law.
Obligations in Construction Contract
Obligations in the construction contract; contractor's building debt; It is an agreement between the owner of the landlord or the employer and the contractor to pay the price of the business owner or to transfer the land shares of the landlord