Tort Law In Turkey
The distinction between torts and infirigement of a contract is one of the most debated question in law. In Continental Law the distinction between law concepts concerned is properly defined by the means of precise legislations as compared to Common Law.
In Turkish law, Article 96 of Turkish Code of Obligations define the infiringement of a contract (contractual liability) for the cases where the performance is lacking. On the other hand, basic defination of the tort in Turkish law (Art. 41 of the law concerned) is the infirigement of personal liabilities formed by Turkish legislation where a legal relationship (contractual relationship) between parties do not exist.
According to Article 41 of the Turkish Code of Obligations, the tort must contain following four vital elements:
The first condition of the tort is the presence of an unlawful act. In the article the word ‘unfair’ is not been explained in details. Therefore we need to focus on the court decisions given by the Federal Cour t of Switzerland (Bear in mind that Turkish legislation concerned almost adopted from Swiss Obligation Code). According to the decision concerned, the unlawful act is an act against individual’s assets and rights of individuals which are under guardianship of legal system.
Accordingly, an act against individual’s inherent rights, such as unity of human body, honour and dignity of a person can be simply regarded as an unlawful act. According to Turkish Law, sometimes passive positions unlike an act can be considered as a Tort. Forinstance, in case of unperformance or undoing of a responsibility may lead a damage. If a constructor did not build an appartment in accordance with rules of construction, in otherwords if he/she avoided to take necessary measures during the construction then unlawful act can come to an issue as a significant element of concept of the Tort. As mentioned, in these type of cases, not taking actions are considered as an unlawful act.
Unlawful acts can be seen as justified acts under definite reasons.
Enforcement of a public order
Implementation of a right arises from private law
The consent of the sufferer
The Scientific critism
State of necessity
Usage of Force for self-protection
According to Article 41, presence of a damage is mandatory element for the Tort. In case that the damage is lacking, the tort can not be an issue.
Turkish law categorized the damage with two concepts.
a) Actual Damage
This type of damage is the damage which cause an actual deficiency in the asset of person .
b) Deprivition from the profit
The omission may consist of two elements depending on the feature of the case. The omission might have occured with an intent or with negligence.
The concept of intention in Turkish law, is to cause a damage with awareness and willingness of the damage
Negligence is also divided into two different categories as ‘severe negligence’ (culpa lata)and ‘slight negligence’(culpa levis).
4)The Cause Link
The defendent is only bound to compensate the damage if there is casual link between the fact or act on which the liability is based and the damage. In tort law cases the most important issue to prove this link and also to describe in which levels the link had been established between the damage and the act.
ABOUT THE AUTHOR: Attorney Gokhan Cindemir
He graduated from Anatolian High School of Karadeniz Eregli, after his graduation he studied in Belgium with AFS intercultural exchange program. He obtained his law license degree from Marmara University of Law Faculty. During his university education, he participated in Philip C. Jessup International Law Moot Court Competition on behalf of the Marmara University. After his admission to Istanbul Bar Association in 2009, he obtained master degree (LL.M) from Gent University / Belgium in the field of European and Comparative law. His master research was about Freedom of Establishment In Relation With Turkey and EEC in the frame of Ankara Agreement. He is specialized in International Private Law, European Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicitor, barrister.
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