If the creditor agrees in advance to waive some or all of the damages that may arise from the debtor's failure to fulfill its commitment...
EXTRACT
In a debt relationship, the debtor makes a commitment to fulfill a certain action against the creditor. What is expected is the fulfillment of this act by the debtor within the specified conditions. If it does not; the legal order will step in to protect the rights of the debtor and will meet the rights of the creditor by turning to the assets of the debtor. In the legal order, this is called “liability”.
If the creditor agrees to waive some or all of the damages that may arise from the debtor's failure to fulfill its commitment before this loss occurs, and if there is a mutual agreement of will between them, then it will be possible to talk about a release of liability (disclaimer) contract.
However, some limitations have been brought by the Law to such contracts that can be made between the parties. The debtor's gross negligence cannot be the subject of an irresponsibility agreement, and some contracts will under no circumstances include an agreement of non-liability. The article has examined this very comprehensive subject only in terms of its definition, scope and general characteristics.
Keywords: Agreement of irresponsibility, record of irresponsibility, contract, obligation of responsibility, voluntary form
PREFACE
The basic principle of liability law is the principle of neminem laedere (not to harm anyone unlawfully). If the damage occurs, the law of liability is based on the removal of the damage by transferring the damage from the person who caused the damage. However, it is not sufficient for the person who caused the damage only to cause a damage in order to have the obligation to remedy the damage. In accordance with the principle of nulla indemnitas sine culpa (there is no perfect compensation), which is another important principle, it is also sought that the perpetrator is at fault. This situation, TBK m. 49, it is stated that "whoever harms another by a faulty and unlawful act is obliged to compensate for this damage".
Article 112 of the TCO stipulates that in the performance of a contract between the creditor and the debtor, if the debtor does not fulfill his performance at all or does not perform in the manner specified in the contract, the debtor must compensate the damage to the creditor. However, the debtor will be able to get rid of this situation if he proves that he is flawless in not fulfilling the obligation.
These general provisions, which adopt responsibility as the main principle, can only be changed with a non-liability agreement. The parties may, with a prior agreement between them, completely or partially prevent the compensation of the damages that may arise from not performing the debt at all or properly. A non-liability agreement is a contract in its nature. The principle of freedom of contract allows the parties to conclude such a contract between them. However, there is no absolute freedom in terms of the non-liability agreement, as in other contracts. It has limits. The limitations that will be in question in the non-liability agreements are determined in the articles 115 and article 116 of the TCO in general, and in the provisions of various contract types in particular (TCO art.214/3, art.221, art.301).
Non-liability agreements are agreements concluded in accordance with the principle of freedom of contract under the Law of Obligations. Non-liability agreements are also agreements that aim to preliminarily limit an “unborn but likely to arise” right with the consent of the parties. In this respect, it can be said that they prioritize the saving process.
1. THE CONCEPT OF LIABILITY AND THE DEFINITION OF THE AGREEMENT ON THE RELEAESE OF LIABILITY
1.1. Concept of Liability
Liability can be defined as “the obligation of the individual to fulfill an obligation, to assume the consequences of a situation related to himself on other people, to respect the rights of other people, and to exhibit the necessary attitude in terms of the consequences of his own behavior”[1].
In private law, the concept of "Liability" is used in different meanings. In the debt relationship, which constitutes the basic action of private law, the debtor is obliged to the creditor. If he fulfills this obligation, the debt relationship automatically ends; if he does not fulfill it, the legal order meets the rights of the creditor arising from this debt relationship by turning to the assets of the debtor. This is called liability in the legal order. It is possible to collect the responsibility mentioned here under two main headings. The first is the obligation to compensate for the damage that has arisen as a result of an action or an event that has occurred. This indemnification obligation is called “liability liability”. The second meaning is the compulsory enforcement liability that can be claimed by the creditor against all the assets of the debtor. This is also called “the obligation of the debtor's responsibility”[2]
It is also possible to make another classification on the subject as "debtor's liability" and "creditor's liability". The liability of the debtor is explained by the creditor's consent to the application of his assets in the event that he does not fulfill his obligation in the debt relationship. The liability of the creditor, on the other hand, is the right to apply for enforcement in order to confiscate the necessary part of the debtor's assets if the debtor does not fulfill his obligation.
In another classification system, liability is divided into two as “tort liability” and “liability arising from breach of obligation”[3].
1.2. The Concept of Defect and its Relationship with Liability
In accordance with the basic principle accepted in our law, the liability of the debtor depends on his "culpa" (TBK art. 112). In our law, debts to the parties TCO m. In principle, 114/1 seeks the existence of the debtor's fault in contractual liability. Fault (Culpa) is the situations that are not accepted by the legal order among the reasons that prevent the fulfillment of the contract. These situations can also be described as behaviors that do not comply with the “bonus patar familias[4]” criteria mentioned in Roman law.
As a rule, liability for damages caused by wrongful action is based on fault. For fault liability, the existence of the power of discrimination specified in Article 13 of the Civil Code is a necessary and sufficient condition. On the other hand, in accordance with Article 15 of the same law, those who do not have the power to distinguish may be held liable for the damages they have caused due to their unjust acts, in case of the existence of discrete situations indicated in the law. One of these discrete cases is the objective responsibility based on rights and justice regulated in Article 59 of the Code of Obligations[5].
Fault actually expresses a value judgment in terms of the liability of the debtor. When the debtor acts in breach of the contract regarding performance, the fault to be attributed to him is that the debt itself has not been fulfilled in accordance with the principles of "commitment and fidelity". The fact that the debtor's fault must be sought in order for liability to arise in case of non-performance may seem to contradict the contract law. Because, within the framework of freedom of contract, it can be argued that the debtor, who has taken a responsibility of his own free will, will have to perform this debt whether he has a fault or not. However, it has been accepted that even in systems where strict liability is adopted for the debtor's failure to fulfill his responsibilities, not all contracts guarantee a final result and the debtor's responsibility in the contractual relationship is limited to "showing the necessary care and effort"[6]. As a result, in case of breach of contract, even in systems where the principle of strict liability is adopted, fault liability is not completely excluded from the system.
As a result, in Turkish law, holding the debtor responsible for the breach of the debt, as a rule, depends on his being "flawed", and in order for the debtor to be relieved from responsibility, in other words, to be deemed "proven of his faultlessness":
1- The existence of an “unexpected situation”,
2- The existence of the fault of the third person, or
3- That the plaintiff person has a defect that will cut the causal link;
will need to be demonstrated. The probabilities mentioned here are related to the causal link.
1.2.1. Strict Liability
As mentioned above, in principle, it is accepted that there must be a fault in a debt relationship for liability to arise. However, in some exceptional cases, it is accepted that liability arises without seeking fault. This is called “strict liability”. Strict liability; It is the state of liability due to tortious act without seeking fault in cases stipulated by the law, regardless of an element of fault. That is, the person can be held responsible without the element of fault in the wrongful act. These situations are; It is regulated in our law as fairness responsibility, care responsibility and danger liability.
In some exceptional cases, even if there is no fault, and sometimes even where there is no damage or illegality, there may be liability. In terms of liability, it is possible to collect liability regulations in our law under four headings: "defect liability", "strict liability", "liability arising from unrealistic power of attorney" and "responsibility arising from legal intervention / based on the principle of equalization of sacrifice".
1.3. Emergence and Definition of the Liability-Releasing Contracts
The possibility of paying compensation due to liability creates a situation of uncertainty and unpredictability in terms of future income-expenditure balance for the debtor. Since the phenomenon of uncertainty in the world of commerce can affect both the competitiveness of the commercial establishment in terms of price and the future plans of commercial enterprises, it is necessary to either completely or partially eliminate the compensations that may be in question, or at least to eliminate the uncertainty by determining an upper limit. The feasibility of such an agreement between the parties with a conflict of interest on the subject and the acceptability of such an agreement in terms of the pros and cons of such an agreement, especially for the creditor, seems impossible at first glance. Because with this agreement, the debtor is relieved of some of his obligations to the detriment of the creditor or limits these obligations. However, considering the advantageous situation that may be reflected on the creditor in terms of pricing the product to be procured, it is thought that such a contract may bring some gains to the creditor as well as the debtor. Thus, at the end of the day, it turns out that the agreement of irresponsibility may also make sense for the creditor.
Liability-releasing contracts; It is a contract made between the creditor and the debtor before the birth of the loss resulting from the breach of contract and aimed at preventing the loss in favor of the creditor. The most common type in practice is in the form of a side agreement drawn up pursuant to the articles of association that reveals liability. This is also known as the “non-liability record”. The “partial irresponsibility record”, on the other hand, appears in the form of limiting the liability to a certain price.
Although the non-liability contract is regulated by the provisions of the Articles 115 and Article 116 of the TCO, a definition of the agreement of non-liability has not been made in these articles, instead it has been regulated which issues cannot be included in this agreement, in other words, limitations have been introduced. In the doctrine, the definition of the agreement of irresponsibility is made as “the legal action which is made between the creditor and the debtor before the damage arising from the breach of the contract arises, which may be explicit or obligatory, and which prevents the formation of a compensation claim that may arise in favor of the creditor, in whole or in part”[7]. However, in this definition, contracts such as “removal of liability depending on the type of fault”, which are the most common examples of non-liability agreements, are meant. Such non-liability agreements are referred to as “non-liability agreements in the narrow sense”. Apart from this, contract conditions that are not made depending on the type of fault but weaken the legal status of the creditor in the contractual relationship may also be considered as “agreement of irresponsibility”. Such agreements are also called “non-liability agreements in the broad sense”[8].
1.4. Example of a release of liability record
Although the content of the liability record may vary depending on the sector of the parties, in which the creditors and debtors are the sellers and buyers, and the nature of the main contract, it has many similar aspects as the main purpose is to limit or eliminate liability. If we consider a sample non-liability agreement between the seller and the buyer, in this agreement, the seller declares, accepts and undertakes to pay for the damage that the buyer will suffer if the declarations and commitments regarding the goods delivered to the buyer do not reflect the truth. Within the scope of the agreement, the seller undertakes to pay the buyer more than 1,000,000 TL of the damage arising from one or more violations of the articles of association. Here, a lower limit is determined. However, an upper limit is also imposed. In our example, the upper limit is determined as “20% of the sales price”. Therefore, in this contract, the seller declares that he will not be liable for damages up to 1,000,000 TL, on the one hand, and 1,000,000 on the other hand. It accepts responsibility up to 20% of the amount subject to the sales contract in terms of more than TL. In the example here, “two-stage limitation” has been mentioned[9].
2. SCOPE AND OBJECTIVE OF THE NRELEASE OF LIABILITY CONTRACTS
2.1. Legal Scope of the release of liability contracts
According to the Turkish Code of Obligations, the scope of the debtor's liability, in general terms, will include all "defects" (art. 144 c.1) The scope of this liability may vary depending on the specific nature of the business. Here, it is a legal requirement to look at the extent to which the debtor will benefit from the debt relationship. If it is concluded that it does not provide any benefit, the responsibility will be lighter than that (TBK 144/c. 2) Here, the Law also clarifies which provisions will be applied in case of breach of contract. Again, according to the last sentence of the same article, the provisions regarding tortious act liability will be applied by analogy.
TCO provisions on what the scope will be, as we have mentioned before, contain mandatory provisions regarding "what the scope cannot be", as there are provisions on limitation. Accordingly, the scope of the agreement of irresponsibility cannot be aimed at not holding the debtor responsible for gross negligence (TBK m. 115/c.1).
Service contracts are also excluded from the scope, as in the case of gross negligence. Accordingly, if the debt relationship between the debtor and the creditor is based on a service contract, the creditor cannot make a non-liability agreement that reduces his responsibility for any debt that may arise from it (TCO art. 115/c.2). For example, if the employer has included in the employment contract with the worker a clause stating that he will not be responsible for the damages arising from negligence in taking the necessary safety measures in the workplace, this is absolutely void. Again, if the service contract is a service, profession or art that is based on a permit given by the competent authorities and requires expertise, then again, the debtor cannot make an agreement in advance that will eliminate his liability due to slight fault (TBK article 115/c.3). But here it will be necessary to exclude contracts of work. The contract of work is a type of contract signed between the contractor (contractor) and the employer, where the contractor undertakes to perform the work and then to create and deliver a work, and if the other party of the contract, the employer, pays a price to the contractor for this work to be created. [10]. If there is a contract of work, not an employment contract, between the creditor and the debtor, this exception clause regarding the non-liability agreement will not be applied, and the agreement that the debtor will not be liable for minor faults may be considered valid.
In the contracts made with the institutions providing these services in order to obtain gas, water, electricity, telephone, internet, banking, insurance and similar services, the records of irresponsibility in favor of them against the other party shall be invalid even in the case of slight fault of the debtor. Since the organizations providing such services are specialized and monopoly organizations in the service, art and profession they carry out, they have followed their work, service, art or profession at the latest point of technique and technology and have become professional. In addition, these people are privileged because they carry out this service, art and profession with the permission and approval of the law or the competent authorities. Similarly, the TBK.art.115/3 provision has the ability to be applied to persons who practice professions such as lawyer, doctor, dentistry, pharmacy, teaching, engineering, architecture and so on[11].
Accordingly, the concept of "grave fault" in terms of the scope of the contract of non-liability, whether it is a "service contract" in terms of the nature of the contract, and if it is a mixed contract, which type outweighs the issues to be considered. Because the nature of a service contract makes the non-liability agreement absolutely null even in case of slight fault due to the mandatory provisions of the law.
In the first of the cases, which we will take as an example, the thief entered the room lock by making a key and stole his valuables while he was sleeping in the hotel where the plaintiff was staying. While the Court of Cassation decided that the agreement of irresponsibility stipulated in the accommodation document issued by the defendant hotel was invalid, it was considered as the gross negligence of the hotel management that “the room key was found by another person other than the defendant hotel management”[12].
The basic provision here arises from a simple and understandable principle: “The debtor with serious fault cannot avoid responsibility!”. As mentioned earlier, the liability of the debtor, which is conditional on the debtor's fault in terms of the principles of the law of obligations, generally covers the damages that occur in case of intent, serious or light negligence; With the agreement of irresponsibility, liability for damage caused only in case of "slight fault" among those listed here can be eliminated. The records of irresponsibility to eliminate liability arising from other situations are strictly null and void. Considering the difficulty of determining the border between light and serious faults, TBK m. It would not be wrong to say that 115 fundamentally limits the freedom to make a non-liability agreement[13].
In a decision taken by the 11th Civil Chamber of the Court of Cassation in 2020, regarding the compensation of the damage occurred as a result of the accident during the active tugboat service given to the vessel by the tugboat in the Bosphorus, "Because the service provided is a service that requires expertise and also the fault that caused the damage is the responsibility of the service provider. with the reference of “he has gross negligence”, it has concluded that the non-liability agreement concluded between the parties cannot be valid in both cases[14].
In a decision taken in 2018, the 11th Civil Chamber of the Supreme Court of Appeals, in the lawsuit regarding the claim of compensation for the damage suffered by the plaintiff providing tugboat service; “…as a result of the plaintiff's carrying out this transaction with the privilege given, it is not possible to accept that the defendant is primarily responsible, as well as gaining a right with an agreement of liability and irresponsibility.” It pointed to the provision of TCO 115/3 by giving its decision and ruled that the agreement of irresponsibility made between the creditor and the debtor cannot be valid in a service rendered with privilege[15].
TBK Art. 115 is considered a “general” arrangement in terms of legal classification. The special provision of the “release of liability contract specific to the sale of movables”, which is considered as a special regulation compared to this regulation, is in the TCO Art. It is included in the scope of 221. This regulation is considered a special and secondary regulation, not a general one. Specific to the sale of movable TBK Art. According to 221, “If the seller is grossly defective in transferring the sold item as defective, any agreement that excludes or limits its liability for the defect is strictly null and void.”
In a decision of the Supreme Court of Appeals General Assembly in 2015 regarding this situation, “…the situations where the seller cannot remove his responsibility with an agreement of irresponsibility will not be limited to just concealing the defect; In any case, the seller will be deemed to be seriously defective in the transfer of the defective goods, and this provision will be applied…[16]”.
2.2. Purpose of the release of liability contracts
It is possible to examine the purpose of the release of liability contracts under two headings as specific and general purpose.
The special purpose is to preliminarily limit the possible damages that the obligee may cause to the obligee in the relationship between the obligor and the obligee as a result of the obligor's slight fault other than intent or gross negligence. The general purpose is to enable entrepreneurs to make predictable trade by making business life predictable. It can be said that there is a public interest in this second issue. However, it should be kept in mind that since a mutual and appropriate declaration of will is required in the agreement of non-liability, as in all other agreements, the creditor's consent to this agreement will also be sought, and this will not result in an injury to the will.
If we exclude the general purpose of the release of liability contract, which we think is in the public interest, the main purpose of the irresponsibility agreement is to limit the claims that the creditor can make on the basis of the original debt relationship, which is the subject of the irresponsibility agreement, if the debtor does not fulfill his performance at all or properly. With this limitation, claims such as compensation liability or repair that may arise as a result of breach of contract arising from the slight fault of the debtor are partially or completely eliminated in favor of the debtor[17].
While examining the purpose of the non-liability agreements, it should also be taken into account that the parties may not have arranged this clause in a separate contract, but may have included it as an article in the main contract they signed, without specifying its name. It is seen that such “implicit agreements of non-liability” are sometimes overlooked even by the courts, and judgments are made in favor of the debtor without taking into account the restrictions subject to non-liability agreements. Therefore, whether there is a record of irresponsibility from the purpose of the article in the contract, it should be ensured that action is taken accordingly. For example, due to such a record, the local court made a judgment in favor of the debtor and the appealed decision was upheld by the relevant department of the Court of Cassation, but the situation could only be noticed during the rectification phase. The 11th HD of the Supreme Court of Appeals annulled the decision of approval by drawing attention to the situation as "it is clear that this provision was put into the contract for the purpose of an agreement of non-liability due to its legal nature" and ruled that the decision of the local court was not in compliance with the law[18].
3. GENERAL FEATURES OF THE RELEASE OF LIABILITY CONTRACTS
The most basic feature of the release of liability contract is that while it is a profitable transaction for the debtor, it is a savings transaction for the creditor. It is beneficial for the debtor because it foresees the elimination of a possible decrease in the debtor's assets in the future. It is a saving process for the creditor because he also gives up his right to a possible claim with this will.
Another general feature of the release of liability contract is that it is an agreement in favor of the debtor and against the creditor. The subject of why the creditor accepts an agreement against himself with his free will has been mentioned before. Even though this imbalance is explained by the principle of freedom of contract, the Turkish legal legislation allows the agreement of irresponsibility, but in order to prevent this injustice that may occur in the establishment of the contract, the TCO art. With the mandatory provisions in articles 115 and 116, this potential for injustice has been tried to be eliminated[19].
In terms of the principles of the law of obligations, it is sought that the mutually appropriate declarations of will are compatible on the essential elements of the contract. The essential elements are of two types: "objective essential element" and "subjective essential element". The objective essential elements are the elements that give the contract its character and that are considered essential by law. For example, TBK m. In accordance with 207, “goods” and “semen” form the essential elements of a contract of sale. In this respect, if we look at the legal nature of the record of irresponsibility, it is clear that it is not a "main element" in this sense. From the point of view of commercial practices, the record of irresponsibility is not seen as a characteristic element or essential element in the general contract. It is not a necessary element for the contract to form a meaningful whole. Therefore, the agreement of irresponsibility is not accepted as an “objective-based element” in the Doctrine[20].
3.1. Contractuality
Although the release of liability contract is called an "contract" in usage, it is undoubtedly that it should be called a "contract" due to its legal nature. In practice, it is mostly seen as a side agreement (pactum adiectum) added to the main contract and referred to as the “Irresponsibility Record”. In order for the non-liability agreement to be established pursuant to its nature as a contract, TCO art. In accordance with 1, mutual and appropriate declarations of will will be sought. If the offer and acceptance declarations are in agreement and the essential elements of the agreement are agreed, the contract is deemed to have been established. In this case, the issue of whether the agreement of irresponsibility can be accepted as an essential element is of great importance. Because the basic condition in the establishment of the contract is that the parties agree on the essential elements.
The essential elements that will form the basis for the appropriate declaration of will are examined under two headings as objective and subjective essential elements. Of these, the objective-based elements (essentialia negotii) are those that are considered essential by the law and that give character to the contract. To give an example, "goods" and "semen", which are the subject of a contract of sale, are the objective elements of the contract of sale (TBK art. 207). In this respect, the non-liability agreement does not have the characteristic of being a "characteristic element" in terms of certain contracts defined in the law, as in the example of the sales contract. Therefore, the non-liability agreement, which is seen as a side agreement of the contract in practice, is not considered as an objective element. In other words, the non-liability agreement is not one of the objective essential elements of a contract.
3.2. Form Element
In order for a contract to be valid, mutual consent is sufficient, and the establishment of the contract is not dependent on any form in terms of form. It can be written or verbal. However, an element of form can be introduced into contracts by law or by agreement of the parties. (TBK art.12/1). This basic rule also applies to non-liability agreements. As a rule, they are not subject to form. However, the parties can agree on a form among themselves. This is called the "volitional form". The parties to the contract can include an irresponsibility clause in a contract that is not subject to form, or they may include a clause of irresponsibility in a contract that is legally subject to a form.
The release of liability contract can be concluded as an independent contract or as an additional contract to the primary contract. If there is an annex to the primary contract, it is qualified as a record of irresponsibility or a clause of release of liability. In both cases, the primary contract must be valid in order to be able to talk about the validity of the release of liability contract. If the primary contract is not valid, the validity of therelease of liability contract or registration cannot be mentioned[21]. Agreement of non-liability, which is not considered as one of the essential points of the contract in terms of whether there is a provision in the articles of association; It is not dependent on the main contract, nor is it subject to the form condition of the main contract[22]. In terms of the nature of the original contract, it may be subject to the form condition. This obligation, to which the main contract is subject in terms of form, will not constitute a parallel binding in terms of the irresponsibility contract to be concluded regarding it.
3.3. Act of disposal element
Act of disposal are acts that have an impressive quality of a right in their assets. Transfer of immovable or movable property, limitation of immovable property with easement or mortgage, waiver of immovable or movable property; acts such as the transfer of the right to claim, the release of the right to claim are the examples of frequently encountered acts of disposal[23]. Therefore, acts of disposal can be described as legal transactions that limit, change, terminate or transfer a right to someone else[24]. In a non-liability agreement, the creditor agrees to transfer a future right to the debtor in advance. Therefore, the contract of non-liability is an act of disposition for the creditor. In terms of the debtor, on the other hand, the agreement of irresponsibility can be described as a profitable act[25]. The legal reason for this redeeming process is called “forgiveness (Causa Donandi)”. However, if the debtor has delivered the goods to the creditor for a lower price in return for a release of liability contract, then the act becomes a "right to claim (cause credendi)", not an unrequited gain[26].
The release of liability contract is in the nature of a disposition for the creditor. Because the creditor gives up a right that he can use in the future with the release of liability contract . The release of liability contract , which is a disposition transaction for the creditor, is a profitable transaction for the debtor party. Disposal acts are transactions that affect a right in the assets, such as transfer of immovable or movable property, registration of easement or mortgage on immovable property, waiver of immovable or movable property, transfer of right to claim, discharge of right to claim[27]. Looking at the release of liability contract from the debtor's side, it is seen that it is a profitable transaction. The legal source of the acquisitive process here is described as “forgiveness (causa donandi)”. However, agreements of irresponsibility can appear as mutually beneficial transactions, albeit exceptionally. For example, if the debtor, who provides goods in a basic debt relationship such as semen in return for goods, makes a discount to the creditor, who is in semen obligation, in return for the non-liability agreement, then the legal reason for the irresponsibility agreement is no longer forgiveness, but "right to claim (causa credendi)".
3.4. The problem of silence and “Tacid Acceptance”
Silence is not a statement of will. A person does not make a declaration of will through his silence. However, in today's law, a method called "tacid acceptance" has been developed and is especially applied in international law. However, a person who does not openly express his will to accept or reject an offer made to him in private law, is not considered to have accepted the offer as a rule[28]. At this point, such agreements, TBK m. In accordance with the provision 1[29], it should be well evaluated that it can also be done covertly[30]. The validity of the implicit non-liability agreement will depend on the proof of the existence of the explicit will of the parties.
In the doctrine, there is a debate as to whether the release of liability contract can be considered established between the parties through implicit acceptance. According to the first view, in order for the release of liability contract declared by means of a unilateral declaration to be valid, the notification must have been made to the creditor before the conclusion of the contract[31]. Thus, it is argued that the creditor, who learned the release of liability before the contract and did not withdraw from the contract, concluded the contract with tacit acceptance. The important condition for this view in the doctrine is that the record of release of liability is foreseen. Otherwise it will be invalid. For example, if a person who buys a ticket for a passenger bus going from Istanbul to Ankara sees the notification on the bus that the bus company will not be responsible for the items lost during the journey, this release of liability contract will not be valid.
According to the second view, which we agree with, "In order for the obligee's silence to be considered a disguised acceptance, the release of liability contract should have been clearly communicated to the obligee and the obligee should not have objected even though he had the opportunity to object"[32]. According to this view, release of liability contract declared through unilateral declaration (announced) cannot be valid. Because the debtor is in a stronger position compared to the creditor and the debtor may not be able to oppose the notification due to this weak situation. It will not be fair to consider the implied acceptance or implied acceptance as valid here.
3.5. Legal capacity and Time Elements
In terms of the capacity to make a release of liability contract, full capacity to act is sought on the creditor. Because the creditor makes a disposition and waives his right, which is the right to compensation that may arise in the future[33].
Release of liability contracts are contracts that the parties can make at any time, depending on their will, within the framework of the principle of freedom of contract in terms of time. It does not matter whether it is an article of the contract that creates the main debt relationship or if it is regulated by a separate contract. In time, it is possible to make it long after the original debt-creating contract. Even in exceptional cases, Release of liability contracts can be made as stand-alone or isolated non-liability agreements without reference to a principal liability contract. The critical point here is that whenever it is made, the non-liability agreement must have been made before the damage occurred. A contract to be made after the damage has occurred will be a release agreement, not a Release of liability contract. In addition, since the agreements such as release and settlement made after the damage has occurred, they are not subject to the TCO article 115 conditions, it is possible to make them for all levels of fault, including intent and gross fault[34].
Release of liability contracts are contracts that are usually concluded for a liability contract. However, this is not a prerequisite. Even if there is no debt relationship between the parties, they can make release of liability contracts for concrete events for the future time, in order to incur any loss. In this case, lean (isolated) release of liability contracts are in question[35]
CONCLUSION
The origin of release of liability contracts can be traced back to Roman Law. In accordance with the basic principles of the law of obligations, the debtor in a mutual debt relationship is obliged to indemnify the damage caused by the breach of the contract. TBK m. This is very clear with 112. The exception is if the debtor is flawless. release of liability is a concept that emerged from the need here. In order to eliminate the uncertainties in commercial life and to ensure predictability, non-liability agreements have also emerged in order to make the additional responsibilities undertaken by the seller in the exchange of goods and semen identifiable. TBK m. 115 and m. The basic principles of release of liability contracts with 116 have been revealed. Since there will not always be an economic balance between the debtor and the creditor, the provisions in these agreements are designed to protect the weak side, as in the labor law.
The release of liability contracts is, in nature, a bilateral, secondary and future-oriented disposition that has a "gainful" function for the debtor. It is secondary because it is certain that the existence of a principal or antecedent agreement between the creditor and the debtor is required for the transaction to be carried out. It is future-oriented because with this agreement, the creditor renounces all or part of a possible future compensation right. A disposition can also be made on rights that have not yet arisen, but are likely to arise in the future[36]. It must be bilateral because the debt-creating transaction requires the presence of at least two parties. A unilateral declaration does not create a debt-creating relationship. TBK m. As stipulated in Article 1, a "mutual declaration of consent" is required[37]. For example, a statement of irresponsibility, written on the ticket by a parking operator at the entrance or various points of the parking lot, or stating that they cannot be held responsible for theft in the parking lot, is a one-sided statement. In order for such a non-liability agreement record to be valid, it will not be sufficient for the creditor to declare that the debtor unilaterally waives its liability in case of breach of contract and damage. It must be accepted by the other party for validity.
Although release of liability contracts are agreements made within the framework of the principle of freedom of contract, many restrictions have been imposed on this freedom. Non-liability agreements cannot be made in service and employment contracts. It may contain provisions regarding the irresponsibility of the consequences that may arise from slight negligence, when it is made in other contracts as well. The release of liability contract, which eliminates the willful or gross negligence of the debtor, is null and void (TCO art. 115). The removal of liability is arranged according to the type of fault. While it is possible to make an explicit or implicit non-liability agreement in the case of a compensation creditor, a non-liability agreement cannot be made on the debtor's freedom as to whether or not he will perform the debt, this reveals the incomplete debt situation. In cases where the debtor cannot fulfill his debt in special situations such as war, earthquake, strike, it is not a release of liability contract. In non-liability agreements, there is a mutual and appropriate declaration of will of the creditor and the debtor. Unilateral contract is not valid. When viewed from the creditor's side, the non-liability agreement is a savings transaction. In addition to his current receivables, he also has savings on his rights that may arise in the future when this right arises. When the irresponsibility agreement is evaluated by the debtor, it is beneficial because it protects the decrease in the debtor's assets, and there is an unrequited gain. In exceptional cases, the debtor may enter into a counter performance burden. The parties can make this agreement with an independent contract. It can also be in the form of an additional contract to the main contract. The invalidity of the articles of association does not affect the invalidity of the release of liability contract. An agreement made after the damage has occurred is not an release of liability contract. The law, which observes the balance for the weak side, also limited the limits of irresponsibility such as TTK 854 and Highway Traffic Law 111.
REFERENCES
Akman, Cermet. Release of liability contracts. Istanbul: Sulhi Garan Printing House, 1976
Atasoy, Kemal. Limitation of Freedom of Contract to Contrary to Public Order. Istanbul: Twelve Plates Publishing, 2020
Ayan, Elif. "Legal Evaluation of Release of liability Records in General Transaction Conditions," Journal of Gazi University Faculty of Law. XX, 3: 3-36, 2016.
Basalp, Nilgun. Release of liability contracts. Istanbul: Twelve Plates Publishing, 2011
Eren, Fikret. Law of Obligations General Provisions. Ankara: Yetkin Bookstore, 2016
Erten, Ali. Conditions of release of liability in Turkish Liability Law. Ankara: 1977
Hatemi, Huseyin & Emre Ozyayla. General Department of Law of Obligations. Istanbul: Vedat Bookstore, 2015
Urem, Muge. Early Turning in the Contract of Works. Istanbul: Twelve Plates Publishing, 2017
Coffee shop, Nalan. Istanbul Commentary: Turkish Code of Obligations – General Provisions. Istanbul: Vedat Bookstore, 2018
Oguzman, Kemal & Turgut Oz. Law of Obligations General Provisions. 9. Istanbul: Vedat Kitapçılık, 2012 (9th Edition Updated and Extended According to the New Turkish Code of Obligations No. 6098).
Oguzman, M. Kemal & Nami Barlas. Civil Law, Introduction-Resources-Basic Concepts. Istanbul: VEDAT LIBRARY, 2020
Rezazad, Yasser. The concept of liability and strict liability in Turkish Law. Master Thesis. Department of Law. Erzurum: Atatürk University / Institute of Social Sciences, 2016.
Sanli, Kerem Cem. Contract Law and Economic Analysis of Contract Sanctions from the Perspective of Law and Economics. Istanbul: Twelve Plates Publishing, 2017
Tekelioglu, Numan. "A Review of the Supreme Court Decision Regarding Agreements of Irresponsibility," Süleyman Demirel University Faculty of Law Journal. 6, 1-2:1-34, 2017.
Tekinay, Sulhi, Sermet Akman, Haluk Burcuoğlu & Atilla Altop. Law of Obligations General Provisions. 6. Istanbul: 1988 (6th Edition, Revised and Enlarged).
It won't sleep, Alper. Authorized Service Agreement. Istanbul: Twelve Plates Publishing, 2018
Vardar Hamamcioglu, Gulsah. The Concept of Savings in Civil Law. Istanbul: Twelve Plates Publications, 2014
INTERNET RESOURCES
www.lexpera.com.tr (available by becoming a member)
https://artsandculture.google.com
[1] REZAZAD, Yasser. The concept of responsibility and strict liability in Turkish Law. Erzurum, 2016, p. 3.
[2] BAŞALP, Nilgun. Non-Liability Agreements, Istanbul 2011, P. 6
[3] OĞUZMAN, Kemal § ÖZ, Turgut. Law of Obligations General Provisions, Istanbul, 2012, p. 13
[4] In Roman law, the term “bonus pater familias” defined the criterion of due diligence similar to the later English law concept of the “reasonable person”. In Spanish law, the term used is a direct translation and is used in the Spanish Código Civil. It is also used in Latin American countries. In Portuguese law, this term is also used in its direct translation in the Civil Code. The French expression "bon père de famille", used in a similar sense to "person who is reasonably attentive", is similar. For example, in Fales v. Canada Permanent Trust Company, [1977] 2 SCR 302, p. 315, the Supreme Court of Canada has defined the standard of care and attention expected from a trust manager as "ceux qu'un bon père de famille apporte à l'administration de ses propres affaires". In the English version of the judgment, this concept is translated as "an ordinary prudent person in managing his own affairs." (https://artsandculture.google.com/entity/bonus-pater-familias/m0cm8cmy E. T. 21.05.2021)
[5] Y. 4. HD., M. 2019/669 K. 2019/5053 T. 6.11.2019. (Lexpera) (E.T: 21.05.2021)
[6] An example of this is the “Common Law” legal system. In this system, the responsibility of doctors, lawyers and other similar professionals is limited to showing only the necessary care and effort. For example, the surgeon does not guarantee that he will treat the patient, nor that the lawyer will win the case.
[7] AKMAN, Sermet, “Irresponsibility Agreement”, Istanbul, 1976, p.7; ERTEN, Ali, “The Conditions of Irresponsibility in Turkish Liability Law”, Ankara, 1977, p.38.
[8] TEKELİOĞLU, Numan. "A Review of Supreme Court Decision Regarding Non-Liability Agreements" 2017, p. 4
[9] The record of irresponsibility used in the example is as follows:
“In the event that the SELLER's statements and commitments in Article 12 of this AGREEMENT do not reflect the truth or do not comply with them, the SELLER declares, accepts and undertakes that it will compensate the BUYER for the loss incurred due to such violation. The SELLER shall be liable for the damages arising from one or more violations in terms of the BUYER, exceeding a total of 1,000,000 (one million) Turkish liras, within the scope of the indemnification obligation regulated here. In any case, the BUYER's indemnity liability arising from this article shall not exceed 20% of the Sale Price.
[10] UREM, Muge. “Early Turning in the Contract of Works” Istanbul: Oniki Levha Publishing, 2017, p. 6.
[11] DOES NOT sleep, Alper. “Authorized Service Agreement”, Istanbul: Oniki Levha Yayıncılık, 2018, p. 345.
[12] Y. 13. H.D. E. 2005/5257, K. 2005/12386, T. 15/07/2005 (www.lexpera.com, E.T. 30.05.2021)
[13] SANLI, Kerem Cem. “Contract Law and Economic Analysis of Contract Sanctions from the Perspective of Law and Economics”, Istanbul: Oniki Levha Yayıncılık, 2017, p. 382-383.
[14] Y. 11. HD., M. 2020/167 K. 2020/5155 T. 18.11.2020, (www.lexpera.com, E.T. .5.05.2021)
“According to the verdict of reversal and the scope of the entire file, the court stated that the relationship between the parties is a working relationship and according to Article 502/2 of the TCO No. 6098. According to Article 115/3 of the TCO, the provisions regarding the power of attorney and the mandatory general provisions of the Turkish Code of Obligations will be applied to the extent they are suitable for their qualifications. In this article, the record of irresponsibility in the contract is invalid, and since the defendant is grossly flawed in the cause of the damage, the agreement of irresponsibility regarding gross fault is also not valid, in this case, the defendant will be responsible for the damage, the total cost of the damage has been determined as 11,248 USD, the escort fee requested by the plaintiff and the entrance and exit of the shipyard are not valid. It was decided that the case be partially accepted, the collection of 11,248 USD, and the demand for the surplus was rejected, on the grounds that the defendant's fees cannot be demanded.”
[15] Y. 11. HD., M. 2016/8059 K. 2018/5032 T. 11.7.2018 (www.lexpera.com, E.T. 25. 05.2021)
“The employment contract between the parties is not regulated in the TCO and TCC. Therefore, first of all, the legal nature of the contract should be determined. In Turkish law, pursuant to Article 502/2 of the TCO, making a legal action or a similar legal action and making an actual action, that is, performing a business in a material sense, may also constitute the subject of the power of attorney. Thus, in Turkish law, the tugboat contract should be evaluated within the scope of the mandate contract as a rule. Furthermore, the plaintiff is performing this work in accordance with the privilege granted. Considering all these issues, it is not possible to accept force majeure in the event that the parties undertake to receive and perform the tugboat service knowing that the other ships are crossing the strait and that the wind direction is opposite to the current direction. In addition, as a result of the plaintiff's carrying out this transaction with the privilege given, it is not possible to accept that the defendant is primarily responsible, as well as gaining the right with an agreement of liability and irresponsibility. For all these reasons, it is necessary to determine the responsibility of the defendant according to the provisions of the power of attorney. In that case, while the court should decide according to the outcome of the relationship between the parties, taking into account the provisions of the power of attorney agreement, the establishment of a judgment with a written justification was not correct, and required annulment.”
[16] YHGK., M. 2013/1696 K. 2015/1109 T. 27.3.2015
[17] BAŞALP, ibid, p. 18
[18] Y. 11. HD., E. 1995/8312 K. 1995/9482 T. 22.12.1995
“In the face of this situation, it is necessary to examine the 5th article of the contract and determine its legal nature. The aforementioned contract clause is exactly as; It includes the provision that "Miss Tourism International Beauty Contest Organization Committee cannot file a lawsuit against the INSTITUTION (.....) or demand any compensation if the shooting or broadcast or both are not realized for any reason". The purpose of this provision, the defendant .. . It is clear that it is to ensure that the institution will not bear any responsibility if the broadcast is not carried out for any reason. In that case, it is clear that this provision has been included in the contract for the purpose of a non-liability agreement due to its legal nature. In the face of this situation, the court should determine the validity of the aforementioned contract provision, the title of the defendant institution and the relevance of the contract to the performance of an art granted by concession, within the framework of the provision of Article 99 of the BK. It was not true that the case was dismissed and the decision made by our Department was not considered appropriate, and it was necessary to accept the request of the plaintiff's attorney for rectification of the decision in this direction.
[19] AYAN, Elif. "Legal Evaluation of Irresponsibility Records in General Transaction Conditions," Journal of Gazi University Faculty of Law. XX, 3: 3-36, 2016. P. 3
[20] BAŞALP, ibid, p. 20
[21] EREN, ibid, p. 1110
[22] ATASOY, Kemal, “The Limit of Freedom of Contract to Contrary to Public Order” Istanbul: On İki Levha Yayıncılık, 2020, p. 207.
[23] VARDAR HAMAMCIOĞLU, Gülşah, “The Concept of Savings in Civil Law”, On İki Levha Publications, Istanbul, 2014, p.302.
[24] OGUZMAN, M. Kemal, BARLAS, Nami. “Civil Law, Introduction-Resources-Basic Concepts”, Istanbul 2006, p. 138.
[25] ERTEN, Ali. “The Conditions of Irresponsibility in Turkish Liability Law”, Olgaç Press, Ankara, 1977, p.90
[26] BAŞALP, ibid, p.39
[27] VARDAR HAMAMCIOĞLU; ibid, p. 2
[28] OĞUZMAN&ÖZ, ibid, p. 59
[29] TBK art. 1: “The contract is established by the parties expressing their wills mutually and in accordance with each other.
The statement of will can be explicit or implicit.”
[30] HATEMİ Hüseyin& GÖKYAYLA Emre, “Law of Obligations General Section”, Vedat Kitapçılık, İstanbul, 2015, p.30
[31] TEKİNAY/AKMAN/BURCUOĞLU/ALTOP, p. 1176
[32] AKMAN, Galip Sermet, “Irresponsibility Agreement”, Sulhi Garan Printing House, Istanbul 1976, p. 34
[33] AKMAN, ibid, p. 41
[34] KAHVECI, Nalan. “Istanbul Commentary: Turkish Code of Obligations – General Provisions”, Vol. 1, Istanbul, Vedat Kitapçılık, 2018. M. 115, Pn. 3.
[35] BAŞALP, ibid, p. 48
[36] VARDAR HAMAMCIOĞLU, ibid, p. 12
[37] On the subject, see TBK m. 1: “The contract is established by the parties expressing their wills mutually and in accordance with each other. The statement of will can be explicit or implicit.”
