Our Law Office’s primary principle is that litigation should be the last resort for the solution of all kinds of controversies between individuals and/or private or public legal entities entering into private or public law contracts. It is not true in our opinion that the lawyers expect that such controversies happen in order to resolve them at the courts or through other types of dispute resolution procedures such as arbitration or mediation.
As means of prevention of diseases are more important and desirable than the treatment of diseases, it is essential to consult lawyers before entering into legal relationships and during their implementation in order to avoid or minimize occurrence of controversies between the parties of a legal relationship.
In these kinds of relationships, parties to the contracts often neglect to obtain or obtain insufficient legal information about the risks involved in the general and special conditions of the basic texts in the hope that these conditions will be applied in a fair and equitable manner later on.
Entering into a legal relationship might cause unexpected damages to the interested parties during implementation, unless an accurate and righteous evaluation of the legal and financial risks is made at the initial stage.
Our experience teaches us that, in all kinds of important contracts, employers, who are the stronger parties, are inclined to impose more advantageous provisions for themselves at the time of preparation of the contracts and especially in the form contracts on the contractors who are the weaker parties in order to obtain undeserved advantages during the implementation of the contracts.
The Employers’ main obligation of progress payments for example, is at the same time, their most important leverage for putting pressure on the contractors, who, in general, intend to complete the project by financing it with the monies received as progress payments and they find themselves in great financial difficulty each time the Employer denies payment for just or unjust reasons.
The old principle “pacta sunt servanda” (Latin for “agreements must be observed” in old language “ahde vefa”) nowadays is not understood as strict observance of the contract provisions and instead, an “equilibrium of rights and obligations” is more desirable for the reciprocal obligations of the parties. Unfortunately, it is not always guaranteed to obtain such equilibrium, if the weaker party does not obtain the necessary amendment at the time of entering into a contract.
Despite all these precautions, controversies might arise between the parties and attempts for an amicable solution through discussion or mediation might fail and therefore one or both of the parties might consider initiation of a court or arbitration case.
However, one should also consider that, it is not always easy, especially in case of controversies between private companies and public entities, to bring the matter to litigation, because of the lengthy procedures, possible denial of participating to other biddings in the meantime and uncertainty of obtaining a favorable decision.
Therefore, it is important to settle possible disequilibrium points in the contract provisions at the time of discussion and finalization of a contract relationship and not to postpone the solution of such problems to the implementation phase of a contract.