WEEK 3
TURKISH LAW OF OBLIGATIONS
Turkish law of obligations are similar to many European law systems which
is usually called “civil law”. As the main difference from “common law”,
civil law systems take the codes and lexes as primary source of law
instead of court judgements. Turkish law system is no exception and codes
and lexes are primary source of law, while court decisions are auxiliary
sources with not obligation to follow.
Turkish Code of Obligations is the continuation of Turkish Civil Code.
Turkish civil code and Obligation Code is actually first taken from
Switzerland Civil Codes. Code of Obligations is taken from Switzerland by
way of reception in 1926, and in 2012 it has been changed according to
the needs of the developing law and country, but again mostly the Swiss
model was followed. Therefore, first of all, in the neediest areas of law,
Turkey the Codes of Switzerland. So, in 1926 the Civil Code and the Code
of Obligations had been enacted. Together with this effort of reception
which continued in the following years with the Commercial Code, Criminal
Code, etc., Turkey was able to adopt modern and secular laws. Also in the
Turkish legal history two different constitutions followed the 1924
Constitution: the 1961 Constitution and the 1982 Constitution.
In general, it could easily be stated that Turkish law is no different from the
main European laws. Therefore, there is no specific or different legal
recognition of property rights. The comprehensive reform process
accelerated in the late 1990s in Turkey directly affected relations with The
Council of Europe. Besides that, comprehensive constitutional
amendments and reforms packages were adopted. Actually, starting with
the 1990s, there have been many amendments realized in many different
laws of Turkey, including many of the provisions of the Constitution,
Criminal Code, Commercial Code and many others. It could easily be
stated that this period contains a legal reform in Turkey. The Turkish Civil
Code and the Turkish Code of Obligation were also changed. The previous
Turkish Civil Code was effective till 1 January 2002, and The Turkish Code
of Obligations was effective till 1 July 2012. Then, the new ones entered
into force.
The law of obligations takes three main subjects which are law of
contracts, tort and unjust enrichment. In this class, the main course will be
learning about the basics of obligations law and how it is taken in Turkish
Law within the Turkish civil code and Turkish Code of Obligations.
PRINCIPLES GOVERNING THE LAW OF OBLIGATIONS1
I. Principle of Freedom of Will
A) Generally
It refers to the general powers granted by the legal order to individuals to
regulate their relationships as they wish, according to their free will. This
principle cannot be applied indefinitely.
B) Restrictions of the Freedom to Arrange Contracts
1. The subject matter of the contract is against the law
2. The subject of the contract should be against morality.
3. The Subject of the Contract is Impossible
If the subject of the contract is against the law, morality or is
impossible, the contract might be subject to the sanction of absolute
nullity.
II. Principle of Proportionality (Nisbilik İlkesi)
The obligatory relationship is a legal relationship that is relative in nature.
As a rule, it creates legal consequences only between the parties, the
creditor and the debtor. In this respect, the creditor's right to receivable
is a relative right and unlike absolute rights that can be asserted against
anyone, this right can only be asserted against the debtor. But there are
exceptions to the principle of proportionality like “performance of the Debt
by a Third Party”, “contract for the Benefit of a Third Party”, “third Party
Protective Agreement” and “Personal Rights Annotated in the Land
Registry”.
III. Principle Of Honesty (Dürüstlük İlkesi)
Everyone must comply with the principle of honesty while exercising their
rights and fulfilling their obligations according to Article 2 of the Civil Code.
This principle forces everyone to act like a reasonable, honest person of
average intelligence.
IV. Faulty Responsibility Principle (Kusurlu Sorumluluk İlkesi)
As a rule, if there is a fault, liability arises. Situations where there is
liability even though there is no fault are exceptional.
V. Principle of Not Establishing Obligations Against Third Parties
(Üçüncü Kişi Aleyhine Borç Kurulamama İlkesi)
1
AYDOS, Oğuz Sadık, Borçlar Hukuku Genel Hükümler, Temel Hukuk Dizisi, 3. Baskı, 2023,
s.25 vd.
This principle, which we can also describe as an extension of the principle
of proportionality, is a result that we can reach logically. For example, you
and I agreed and said, “The canteen owes each of us a glass of tea.” Then
we went to the canteen and said to him, “You owe us a glass of tea!”
VI. Principle Of Reciprocity in Contracts (Karşılıklılık/İvaz İlkesi)
As a rule, contracts impose mutual obligations between the parties. For
example, in a sales contract, the seller's obligation is the delivery of the
goods subject to sale, and the buyer's obligation is the payment of the
sales price (price). In this context, there is not a single debtor and a single
creditor in contracts. For example, “who is the debtor in the lease
agreement?” When asked "according to what?" It is necessary to respond
with a question like this. The lessee is obliged to pay the rent, and the
lessor is obliged to deliver the rented goods and keep them ready for the
use of the tenant during the lease period.
As with many institutions of law, there are exceptions to this principle. For
example, there are also contracts that impose debt on one party, such as
a donation contract or a interest-free loan (gratuitous loan) contract.
VII. Principle of Performance at the Residence of the Debtor
(Borçlunun Yerleşim Yerinde Ödeme İlkesi)
As a rule, obligations are performed at the debtor's place of residence.
Although this is the general rule, the place of performance for specific
objects or money debts is not the residence of the debtor.
DEBTOR-CREDİTOR RELATİONSHİP
A debt relationship is a legal bond between two parties. Pursuant to this
bond, one of the parties (the debtor) is under the obligation to give or do
or not do something, that is, to fulfill an action. The other party (creditor)
has the right to demand that the debtor fulfill his debt. Thus, there will be
three basic elements in a debt relationship.
So, the elements in an obligation relation are debtor, performance and
creditor.
A) Debtor
Debtor is the party who is bound to perform a certain act given as
consideration. In a donation contract, the donor is the debtor, whereas in a
sales contract both the seller and buyer are debtors. Similarly in an
employment contract both the employer end the employee are debtors.
B) Creditor
Creditor is the party who is entitled to request the consideration. In a
donation (gift) contract the parties are named as the donor and the donee.
Donee is the creditor. Whereas in a sales contract the parties are named
as the seller and the buyer and both of them are creditors since sales
contract is a contract in which both of the parties are under a burden of a
consideration. The “seller” is under the liability of delivering the sold
goods to buyer, the “buyer” is liable to pay agreed price to seller, in
return. Similarly in an employment contract the parties are named as the
employer and employee and again both of them are creditors. Employee is
under the liability to do the work; whereas employer is under the liability
to pay the wage.
C) Consideration
1. Definition
Consideration is an act, which the debtor is obliged to perform as the
content of his/her obligation. Consideration is actually the subject-matter
of the obligation. It may be an act of giving something, like in sales
contract-giving the good and giving the payment (price of the good), it
may be an act of doing something, like in employment contract-employees
cleaning the room, or it may be an act of refraining from doing something,
like in an agreement of restraint of trade.
2. Characteristics of the Act
The performance must be a legally protected interest. It should not be
impossible, it should not be against the law, it should not be against
general morality and personal rights. The action does not necessarily need
to be specific. Identifiable acts can also constitute the subject of the debt.
a) Positive Consideration And Negative Consideration:
Positive behavior of the debtor is called the act of doing (positive
consideration), negative behavior of the debtor is called not doing
(negative consideration), and giving something is called the act of giving.
For example, sculpting is an act of doing, not competing is an act of not
doing and giving two tons of wheat constitutes a giving obligation
example.
b) Personal Consideration and Material Consideration
The act of doing a job is called a personal consideration, while the act of
doing something that is fulfilled by giving something in one's property is
called a material consideration. For example, singing a folk song is
considered a personal consideration, while giving two tons of wheat is
considered a material consideration.
In personal considerations, the person who will fulfill the obligation is
important. Therefore, only the relevant person will fulfill the obligation.
Since the individual is not important in material considerations, everyone
has the right to fulfill this debt.
c) Recurring consideration and non-recurring consideration:
Where an obligation is performed by an act continuing over a certain
period of time, this consideration is a recurring consideration. Where an
obligation, is performed by an act or a number of acts performed on a
single occasion the consideration is a nonrecurring consideration. Paying
the sales price is a non-recurring consideration. In an employment
contract, the employee’s doing the work is a recurring consideration.
d) Divisible - Indivisible Act (Divisible consideration and
indivisible consideration)
An act that must be performed at once is indivisible, whereas an act that
the debtor can perform in parts is divisible. For example, while the
obligation to give an ox is indivisible; Giving two tons of wheat is a
divisible act.