In accordance with the reviewed court decisions and Supreme Court precedents, findings regarding the legal nature, definition, and validity conditions of the “withdrawal fee” in sales contracts are presented below.

1. Definition and Legal Nature of the Withdrawal Fee

According to Article 178 of the Turkish Code of Obligations (TCO), a withdrawal fee is money given by one party to the other when the contract is made, granting the giver of the money the right to unilaterally and freely withdraw from the contract by forfeiting the money, and granting the receiver of the money the right to withdraw by returning double the amount received. In court decisions, this concept is also referred to as “earnest money for withdrawal,” “right of recourse at time,” or “regret money.”

Distinction from Earnest Money (Pey Akçesi): As frequently emphasized in court decisions, the withdrawal fee and “earnest money” (down payment/deposit) regulated in TCO Art. 177 are distinct:

Earnest Money (TCO Art. 177): Money given when a contract is made is, as a rule, not a withdrawal fee but is considered proof that the contract has been concluded. Unless there is an agreement to the contrary or local custom, this money is deducted from the principal debt.

Withdrawal Fee (TCO Art. 178): It is stipulated as a sanction or consideration for withdrawing from the contract.

2. Conditions for Validity of the Withdrawal Fee

According to court decisions, for a payment to be accepted as a withdrawal fee and considered legally valid, the following conditions must be met:

A. Explicitly Agreed Upon

According to the presumption in Article 177 of the Turkish Code of Obligations (TCO), for the money given to be considered as a withdrawal fee, there must be an explicit agreement or contract provision between the parties to that effect.

Burden of Proof: The party claiming that the money given is a withdrawal fee rather than earnest money, is obliged to prove this claim.

Contract Wording: The mere presence of the term “kapora” (deposit) in the contract or receipt does not mean that the money is a withdrawal fee. It must be understood from the agreement text that the money was given in exchange for the right of withdrawal. Unless explicitly stipulated as withdrawal compensation, the money given is considered earnest money and must be refunded when the contract is rescinded (whether rightfully or wrongfully).

B. Validity of the Main Contract (Ancillary Nature)

The withdrawal fee is an ancillary (subsidiary) obligation dependent on the main contract. Therefore, for the withdrawal fee to be valid, the main contract must also be legally valid.

Formal Requirement: Contracts subject to formal requirements, such as sales of registered immovables or vehicles registered in the traffic registry, are invalid unless made in an official form at a notary public or land registry office (unofficial contracts).

Consequence of Invalidity: According to the decisions of the Supreme Court General Assembly of Law and relevant chambers; if the main contract is invalid due to a lack of form, the provisions regarding earnest money or penalty clauses within this contract are also invalid. In this case, the parties cannot rely on the earnest money provisions (double refund or forfeiture of the money); they can only demand the exact refund of the money they paid, within the framework of unjust enrichment provisions.

C. Payment During the Formation of the Contract

Earnest money must be given to the other party during the formation (establishment) of the contract. If the contract has not yet been formed, or if the money was not given at the time of the contract, it may not qualify as earnest money.

3. Exercise of the Right of Withdrawal and Its Consequences

If there is a valid earnest money agreement:

If the Party Who Paid Withdraws: They forfeit the money they gave to the other party (they cannot demand it back).

If the Party Who Received the Money Withdraws: They refund double the amount they received to the other party.

Performance Status: If the contract is duly performed, the earnest money given is refunded or deducted from the debt.

Situation Between Merchants: Since the obligation to act like a prudent businessperson is fundamental in contracts between merchants, earnest money amounts explicitly agreed upon in the contract are considered binding (unless they are deemed general terms and conditions).

Additional Information Obtained from Secondary Sources

The following information consists of secondary data that appears in a limited context within decision texts or is indirectly related:

Consumer Law and Distance Contracts: According to the decision of the Advertising Board and the 3rd Civil Chamber of the Supreme Court (2025/3882); consumers have the right to withdraw from **_distance contracts or timeshare contracts within the legal withdrawal period (e.g., 14 days) without stating any reason and without paying a penalty (or withdrawal fee)._** During this period, it is against the legislation for the seller to receive payment from the consumer or issue an indebtedness document.

Brokerage (Real Estate Agent) Contracts: According to the decision of the Istanbul 11th Commercial Court of First Instance, for a service fee to be demanded under the name of “earnest money” in contracts made with real estate brokerage intermediaries, the brokerage contract must be in writing and bear the signature of the relevant party. A text suggestion.

Why Is Expert Legal Support Necessary?

The withdrawal fee is one of the legal institutions most commonly confused with earnest money (commitment fee) in practice, and this confusion can lead to serious consequences for the parties, such as non-refundable payments, double payment obligation, or loss of rights. A single word in the contract can determine whether the payment will be considered a withdrawal fee or earnest money. Therefore, especially in real estate and vehicle sales, consumer contracts, real estate agent (brokerage) contracts, and commercial relations between merchants; the preparation of clear and provable contract texts, in accordance with Supreme Court precedents, is of great importance. Otherwise, due to non-compliance with formal requirements, invalidity of ancillary rights, or mischaracterization, parties may face unexpected financial burdens.

In Istanbul’s Anatolian Side, particularly in Tuzla, Kartal, Pendik, and Maltepe, the 2M Law Firm offers services in disputes arising from withdrawal fees, earnest money, and contract rescission, including preventative legal consultancy, contract drafting and revision, settlement management, and effective litigation follow-up, all based on Supreme Court practice. Professional legal support obtained at the contract stage reduces conflicts that may arise later, prevents financial losses, and ensures the strongest possible protection of rights.