Documente Academic
Documente Profesional
Documente Cultură
http://www.wku.edu/~jan.garrett/320/320lawmo.htm
obligations
are
followed
and
fulfilled
in
part
because
failure
to
do
so
brings
upon
the
transgressor
such
social
sanctions
as
induced
feelings
of
guilt,
shame
or
threat
of
condemnation
from
the
society.2
B)
LAW
AS
A
CULTURAL
CONSTRUCT
Each
society
develops
and
implements
a
system
of
justice
based
upon,
and
reflective
of,
the
perceived
values
and
needs
at
a
given
time.
Law
is
a
reflection
of
the
cultural
beliefs
of
dominant
groups
within
society,
with
the
administration
of
justice
and
the
application
of
law
as
a
function
of
the
worldview
of
a
community
in
time
and
place.
Subsequently,
the
approach
of
one
cultural
group
toward
legal
and
justice
issues
may
be
very
different
from
that
of
another.
In
any
society,
something
is
an
offence
under
law
only
because
the
society
has
deemed
it
to
be
so.
II-‐
SOURCES
OF
LAW
The
sources
of
Turkish
domestic
law,
in
descending
order
of
importance,
are
• The
Constitution
of
Turkey
(Anayasa)
• Laws
(Codes
or
Statutes)
(Kanun)
• International
treaties
(Milletlerarası
Anlaşmalar)
• Decree
Laws
(statutory
decrees)
(Kanun
Hükmünde
Kararname)
• Regulations
(Tüzük)
• By-‐laws
(Yönetmelik)
LEGAL
SOURCES
OF
TURKISH
LAW
The
primary
sources
of
Turkish
law
are
the
constitution,
laws,
statutory
decrees,
international
treaties,
regulations,
and
by-‐laws.
1-‐The
C onstitution
The
highest
source
of
Turkish
legal
order
is
the
constitution.
According
to
Article
11
of
the
Constitution:
“The
provisions
of
the
Constitution
are
fundamental
legal
rules
binding
upon
legislative,
executive
and
judicial
organs,
and
2
Patrick
S.
O’Donnell,
Social
Norms
&
Law:
An
Introduction
administrative
authorities
and
other
institutions
and
individuals.
Laws
shall
not
be
in
conflict
with
the
Constitution.”
2-‐Statutes
The
Turkish
Grand
National
Assembly
holds
the
power
to
make,
amend,
and
abrogate
laws
as
authorized
by
article
87
of
the
Constitution.
Article
88
holds
that
legislative
bills
shall
be
proposed
by
the
Council
of
Ministers
and
individual
deputies.
Such
bills
are
debated
and
adopted
by
the
Parliament
in
its
plenary
session
with
a
simple
majority
as
regards
with
ordinary
bills.
According
to
Article
96
of
the
Constitution:
“Unless
otherwise
stipulated
in
the
Constitution,
the
Turkish
Grand
National
Assembly
shall
convene
with
at
least,
one-‐third
of
the
total
number
of
members
and
shall
take
decisions
by
an
absolute
majority
of
those
present;
however,
the
quorum
for
decisions
can,
under
no
circumstances,
be
less
than
a
quarter
plus
one
of
the
total
number
of
members.
Members
of
the
Council
of
Ministers
may
delegate
a
minister
to
vote
on
their
behalf
in
sessions
of
the
Turkish
Grand
National
Assembly
which
they
are
unable
to
attend.
However,
a
minister
shall
not
cast
more
than
two
votes
including
his
or
her
own.”
According
to
article
89
of
the
Constitution,
legislative
bills
adopted
by
the
Grand
National
Assembly
shall
be
submitted
to
the
President
of
the
Republic
for
their
promulgation.
He
shall,
within
the
same
period,
refer
to
the
Turkish
Grand
National
Assembly
for
further
consideration,
laws
which
he
deems
wholly
or
in
part
or
unsuitable
for
promulgation,
together
with
a
statement
of
his
reasons.
In
the
event
of
being
deemed
unsuitable
by
the
President,
the
Turkish
Grand
National
Assembly
may
only
discuss
those
articles
deemed
to
be
unsuitable
by
the
President.
After
that
if
the
Grand
National
Assembly
readopts
the
bill
without
a
change,
the
bill
shall
be
promulgated
by
the
President.
Due
to
time
considerations
bills
concerning
the
budget
are
excluded
from
this
scrutiny
of
the
President.
Laws
are
only
enacted
by
publication
in
the
Official
Gazette.
3.
S tatutory
D ecrees
The
Turkish
Grand
National
Assembly
may
empower
the
Council
of
Ministers
with
a
legislation
to
issue
decrees
having
the
force
of
law.
However,
the
fundamental
rights,
individual
rights
and
duties
included
in
the
First
and
Second
Chapter
of
the
Second
Part
of
the
Constitution
and
the
political
rights
and
duties
listed
in
the
Fourth
Chapter,
cannot
be
regulated
by
decrees
except
during
periods
of
martial
law
and
states
of
emergency.
In
addition
to
that;
the
purpose,
scope,principles
and
operative
period
of
the
decree
shall
be
defined
in
the
empowering
legislation.
Such
statutory
decrees
have
the
same
legal
effects
as
laws.
As
mentioned
above
the
1982
Constitution
makes
a
distinction
between
the
two
categories
of
statutory
decrees:
decrees
adopted
under
normal
circumstances
as
stated
in
Article
91;
and
those
adopted
under
circumstances
of
state
of
emergency
and
martial
law.
4-‐International
T reaties
According
to
Article
90
of
the
Constitution,
international
treaties
are
another
source
of
Turkish
law.
“The
ratification
of
treaties
concluded
with
foreign
states
and
international
organizations
on
behalf
of
the
Republic
of
Turkey,
shall
be
subject
to
adoption
by
the
Turkish
Grand
National
Assembly
by
a
law
approving
the
ratification.
Agreements
regulating
economic,
commercial
and
technical
relations,
and
covering
a
period
of
no
more
than
one
year,
may
be
put
into
effect
through
promulgation,
provided
they
do
not
entail
any
financial
commitment
by
the
state,
and
provided
they
do
not
infringe
upon
the
status
of
individuals
or
upon
the
property
rights
of
Turkish
citizens
abroad.
In
such
cases,
these
agreements
shall
be
submitted
to
the
Turkish
Grand
National
Assembly
for
information
within
two
months
of
their
promulgation.
Agreements
in
connection
with
the
implementation
of
an
international
treaty,
and
economic,
commercial,
technical,
or
administrative
agreements
which
are
concluded
depending
on
the
authorization
as
stated
in
the
law
shall
not
require
the
approval
of
the
Turkish
Grand
National
Assembly.
However,
agreements
concluded
under
the
provision
of
this
paragraph
and
affecting
economic
or
commercial
relations
and
the
private
rights
of
individuals
shall
not
be
put
into
effect
unless
promulgated.
Agreements
resulting
in
amendments
to
Turkish
laws
shall
be
subject
to
the
provisions
of
the
first
paragraph.
International
treaties
which
are
duly
put
into
effect
have
the
same
effect
as
domestic
laws.
No
appeal
to
the
Constitutional
Court
shall
be
made
with
regard
to
these
agreements,
on
the
grounds
that
they
are
unconstitutional.
In
case
of
conflicts
between
international
agreements
duly
put
into
effect
regarding
basic
rights
and
freedoms
and
domestic
laws,
due
to
different
provisions
on
the
same
issue,
the
provisions
of
international
treaties
shall
be
prevail.”
As
seen
in
the
last
paragraph
of
article
90,
in
case
of
a
conflict
between
domestic
law
and
an
international
treaty
regarding
issues
on
basic
rights
and
freedoms;
the
provisions
of
the
relevant
international
treaty
will
be
applied.
Thus,
it
is
not
wrong
to
say
that
the
status
of
such
treaties
(treaties
regarding
basic
rights
and
freedom)
is
somewhere
between
the
Constitution
and
ordinary
domestic
law.
5 -‐Regulations
Regulations
are
written
explanations
of
a
particular
law
on
how
the
law
will
be
interpreted,
applied
or
enforced.
The
article
115
of
the
Constitution
authorizes
the
Council
of
Ministers
to
issue
regulations
in
accordance
with
the
constitution
and
laws:
“The
Council
of
Ministers
may
issue
regulations
governing
the
mode
of
implementation
of
laws
or
designating
matters
ordered
by
law,
provided
that
they
do
not
conflict
with
existing
laws
and
are
examined
by
the
Council
of
State.
Regulations
shall
be
signed
by
the
President
of
the
Republic
and
promulgated
in
the
same
manner
as
laws.”
As
seen
in
the
article
regulations
are
subject
to
the
examination
of
the
Council
of
State
and
cannot
be
contrary
to
the
law
itself.
They
are
also
subject
to
the
legality
review
of
the
administrative
courts
as
stated
in
the
Article
125.
6-‐By-‐laws
By-‐laws
are
written
instructions
regarding
relevant
laws
and
regulations.
By-‐
laws
are
regulated
in
the
Article
124
of
the
Constitution:
“The
Prime
Ministry,
the
ministries,
and
public
corporate
bodies
may
issue
by-‐laws
in
order
to
ensure
the
application
of
laws
and
regulations
relating
to
their
particular
fields
of
operation,
provided
that
they
are
not
contrary
to
these
laws
and
regulations.
The
law
shall
designate
which
by-‐laws
are
to
be
published
in
the
Official
Gazette.”
3
Prof.
William
Tetley,
Q.C
Mixed
Jurisdictions:
Common
Law
vs.
Civil
Law
(Codified
and
Uncodified)
which
hindered
the
judges’
ability
to
innovate
and
confined
their
activities
in
certain
areas.
The
term
‘civil
law’
refers
to
those
other
jurisdictions
which
have
adopted
the
European
continental
system
of
law
derived
essentially
from
ancient
Roman
law,
but
owing
much
to
the
Germanic
tradition.
Civil
law
has
its
origin
in
Roman
law,
as
codified
in
the
Corpus
Juris
Civilis
of
Justinian*,
and
as
subsequently
developed
mainly
in
Continental
Europe.
The
civil
law
legal
tradition
can
be
categorized
the
Romanic
laws,
influenced
by
French
law4,
and
the
Germanic
family
of
laws,
dominated
by
German
jurisprudence.
In
civil
law
systems,
law
is
principally
codified
and
premised
on
general
principles,
which
are
systemised
in
a
written
regulation.
Reality
is
that
it
is
increasingly
difficult
to
identify
countries
with
solely
one
legal
tradition
or
the
other.
The
cross-‐pollination
between
these
legal
cultures
has
enriched
both
traditions,
creating
a
global
legal
mosaic.
The
conceptual
distinctions
between
Civil
Law
and
Common
Law
systems
are
noteworthy
in
certain
areas,
but
at
the
same
time,
there
appears
to
be
growing
agreement
that
the
substantive
differences
are
becoming
increasingly
less
significant.5
DIFFERENCES
BETWEEN
COMMON
LAW
AND
CIVIL
LAW
Prior
to
the
19th
century,
There
was
no
sharp
distinction
between
Continental
law
and
the
common
law.
Common
law
and
civil
law
legal
traditions
share
similar
social
objectives
(individualism,
liberalism
and
personal
rights)
and
they
have
in
fact
been
joined
in
one
single
family,
the
Western
law
family,
because
of
this
functional
similarity.
Civil
law
is
the
dominant
legal
tradition
today
in
most
of
Europe,
all
of
Central
and
South
America,
parts
of
Asia
and
Africa,
and
even
some
discrete
areas
of
the
common-‐law
world
(e.g.,
Louisiana,
Quebec,
and
Puerto
Rico).
1)
T he
r ole
o f
t he
l egislator
:
French
civil
law
adopts
Montesquieu’s
theory
of
separation
of
powers
(kuvvetler
ayrılığı),
whereby
the
function
of
the
legislator
is
to
legislate,
and
the
function
of
the
courts
is
to
apply
the
law.
Common
law,
on
the
other
hand,
finds
in
judge-‐
made
precedent
(İçtihat)
the
core
of
its
law.
4
French
Code
Civil
from
1804
(Code
Napoleon)
5 INTRO TO CIVIL LAW LEGAL SYSTEMS, INPROL Consolidated Response (09-‐002), May
2009
commonly
referred
to
as
common
law,
is
based
on
decisions
made
by
judges
in
court
trials.
These
decisions
by
courts
that
are
used
for
guidance
are
called
precedent.6
To
sum
up,
it
is
clear
that
in
both
legal
traditions
codes
do
exist
and
are
applied
by
practitioners,
but
that
these
codes
differ
in
their
style:
While
civil
law
codes
and
statutes
are
mostly
concise
and
do
not
provide
definitions
but
state
principles
in
broad,
general
phrases,
common
law
codifying
statutes
provide
detailed
definitions
and
each
rule
sets
out
lengthy
enumerations
of
specific
applications
or
exceptions
Ω
English
word
“law”
means
all
legal
rules
whatever
their
sources,
while
the
French
word
“loi”
refers
only
to
written
statutory
rules.
The
word
“droit”
in
the
French
civil
law
is
the
equivalent
of
“law”
in
English
common
law.
6
Ha
Nguyen
&
Megan
Gatley,
Chapter
1a:
Introduction
to
Law
legislator
by
examining
the
legislation
as
a
whole,
including
the
“travaux
préparatoires”,
as
well
as
the
provisions.
7
http://www.allaboutworldview.org/marxist-‐law.htm
WEEK
3-‐4
meeting
of
the
The
Law
and
Society
Association,
Chicago,
Illinois,
May
27,
2004
categorised
law
in
terms
of
relationships
between
person
and
person,
person
and
a
thing
and
person
and
the
state. 9
Relationship
between
a
statutory
authority
and
an
individual
should
be
approached
as
a
relationship
existing
between
the
state
and
the
individual
rather
than
an
individual
and
an
individual.
On
the
other
hand,
within
the
English
legal
system
there
has
never
been
a
strong
tradition
of
distinguishing
private
law
and
public
law.
Private
Law
is
the
body
of
rules
which
recognize
and
provide
enforcement
of
individual
(private)
rights.
Private
Law
affects
matters
between
individuals
(whether
people,
groups
of
people
or
companies).
Examples
of
this
would
be
commercial
codes
and
civil
codes.
Most
civil
codes
in
Europe
were
conceived
in
the
19th
Century
when
the
Liberal
laissez-‐faire
ideology
was
dominant
in
Europe.
In
the
first
wave
of
codifications
most
continental
European
legal
systems
adopted
both
a
civil
code
and
a
commercial
code.
Main
pillars
of
private
law
have
been
absolute
property,
binding
force
and
freedom
of
contract
and
fault-‐based
liability
in
tort.
However,
the
main
institutions
of
the
19th
century
private
law
construction
were
never
undermined
as
such.
Rather,
the
desire
for
change
was
internalized
within
the
system.
New
institutions
were
added
in
order
to
moderate
their
effect.
Abuse
of
right,
good
faith,
strict
liability,
and
unjust
enrichment
operated
as
safety
valves
that
removed
the
pressure
on
the
system.
Private
law
consists
of
Default
and
Mandatory
Rules
as
a
result
of
party
autonomy.
A
free
market
mainly
needs
rules
on
contacts
and
that
the
basic
rule
of
contract
law
(and
indeed
the
basic
prerequisite
of
a
well
functioning
market)
is
freedom
of
contract.
However,
the
market
must
be
regulated
and
therefore
mandatory
rules
are
also
needed.
Mandatory
rules
are
the
rules
that
the
parties
cannot
contract
around.10
Public
Law:
norms
that
regulate
the
organization
and
function
of
public
authorities
and
the
relationship
between
public
agencies
and
individual
citizens.
Public
Law
deals
with
the
relationships
between
government
organisations
and
ordinary
citizens
and
also
between
different
government
organisations.
Public
law
consists
of
various
statutes,
—Constitutional
law:
e.g.
role
and
power
of
the
institutions
within
the
state
9
G
Samuel,
‘Public
and
Private
Law:
A
Private
Lawyer’s
Response’
(1983)
46
The
Modern
Law
Review
at
558
;
Anne
Deegan,
The
Public/Private
Law
Dichotomy
And
Its
Relationship
With
The
Policy/Operational
Factors
Distinction
In
Tort
Law,
Vol
1
No
2
QUTLJJ
.
10
Martijn
W.
Hesselink,
The
Structure
Of
The
New
European
Private
Law,
http://www.ejcl.org/64/art64-‐2.html
—Administrative
law:
e.g.
regulates
public
authorities,
their
accountability
—Criminal
law:
state
responsible
for
prosecution
of
crimes
-‐-‐-‐-‐
International
law
:International
law
relates
to
issues
that
arise
between
nations,
international
or
intergovernmental
organisations.
PRIVATE
LAW
PUBLIC
LAW
*
Civil
Law
*
Constitutional
Law
-‐Law
of
Persons
*
Administrative
Law
-‐
Family
Law
*
Criminal
Law
-‐Law
of
Inheritance
*
International
Law
-‐Law
of
Property
*
Law
of
Taxation
-‐
Law
of
Obligations
*Law
of
Civil
Procedure*
*Law
of
Enforcement
&Bankruptcy
*
Commercial
Law
*
International
Private
Law
However,
this
clear-‐cut
distinction
between
private
and
public
law
does
give
rise
to
some
doubt.
In
many
countries
the
cases
where
the
state
acts
as
a
private
person
are
problematic.
Classical
examples
include
the
case
where
a
municipality
buys
new
office
equipment.
Law
of
Property
The
proper
classification
of
other
areas
is
often
disputed.
Civil
procedure,
for
example,
is
treated
as
public
in
some
countries
and
as
private
in
others.
Labor
law,
social
security,
and
various
topics
of
government
regulation(competition
law)
are
often
referred
to
as
“mixed”
public
and
private
areas.
Even
more
problematic
in
this
respect
is
that,
in
many
countries
private
law
is
rapidly
disintegrating
into
functional
fields
of
law.
Usually,
these
functional
fields
are
the
most
dynamic
branches
of
the
law:
labour
law,
medical
law,
environmental
law,
information
law,
and
construction
law,
to
name
but
a
few.
Their
main
characteristic,
apart
from
their
functional,
pragmatic
and
non-‐
dogmatic
approach,
is
that
they
usually
contain
a
mix
between
private
and
public
law
aspects.
11
11
ibid.
As
said,
private
law
is
usually
defined
as
the
law,
which
governs
relationships
between
citizens
as
opposed
to
public
law,
which
is
the
law
that
deals
with
the
relationships
between
citizens
and
the
state,
or
among
state
institutions.
This
definition
is
quite
descriptive.
However,
there
is
another
recurrent
definition
of
private
law
which
is
much
more
political.
In
this
definition
private
law
is
the
law
relating
to
the
private
area,
which
is
free
from
State
intervention.
In
the
latter
view
the
only
function
of
private
law
is
allocation.
In
that
view
private
law
has
an
internal
logic
of
its
own
which
is
politically
neutral
and
is
only
concerned
with
giving
every
person
what
she
or
he
is
entitled
to.12
Especially,
private
law
in
that
view
has
neither
distributionist
nor
any
other
paternalistic
function:
rather
it
is
held
that
private
law
should
not
be
instrumentalised
for
political
aims.
12
ibid.
III)
AREAS
OF
PUBLIC
LAW
A)
CONSTITUTIONAL
LAW
Constitutional
law
defines
the
rules
and
code
of
conduct
for
the
government
and
its
various
departments
as
well
as
the
governmental
system
of
the
country.
It
also
states
the
most
basic
rights
of
the
individuals.
These
rights
such
as
freedom
of
speech,
are
guaranteed
to
all
citizens
and
or
residents
of
that
country.
Constitution
also
provides
the
framework
for
the
government
system
of
a
country
16
ibid.
18
RICHARD
B.
STEWART,
ADMINISTRATIVE
LAW
IN
THE
TWENTY-‐FIRST
CENTURY,
78
European
Journal
of
International
Law
Vol.
17
no.1
©
EJIL
2006
The
rule
of
law
normally
requires
that
the
government
acts
always
within
its
powers;
follows
the
proper
procedures;
and
provides
equality
of
access
to
courts
and
other
machinery
for
adjudication.
The
key
requirement
of
the
rule
of
law
is
a
legal
order
with
fixed
and
stable
general
principles,
together
with
formal
rights
of
access
to
courts
for
the
resolution
of
disputes.
C)
CRIMINAL
LAW
Criminal
law,
also
known
as
Penal
law,
is
the
law
under
which
the
state
prosecutes
individuals
for
committing
a
crime.
Criminal
law
is
used
to
punish
individuals
for
their
acts,
which
are
deemed
to
be
anti-‐social
by
law.
Certain
criminal
offences
may
also
be
committed
by
legal
persons.
An
act
of
crime
must
be
expressly
described
and
certain
“penalty”
must
be
provided
for
it
by
a
statute
.20
There
can
be
no
crime
and
no
punishment
without
law/statute”
(kanunsuz
suç
ve
ceza
olmaz,
Nulla
poena
sine
puts)è
for
the
stability
+
and
for
avoiding
arbitrary
accusation
and
punishment.
Parliament/TBMM
must
define
in
detail
è
every
crime
and
the
relevant
penalty
in
the
statutory
law21
è
Interpretation
by
analogy
is
prohibited.
German
Criminal
Law
of
28
June
1935
(RGBl.
I
838)
reads
as
:
“One
punishes,
who
commits
an
act,
which
the
law
for
punishable
avowedly
or
which
earns
punishment
after
the
basic
idea
of
the
penal
law
and
after
healthy
people
feeling.
If
no
certain
penal
law
applies
direct
to
the
act,
then
the
act
is
punished
after
the
law,
whose
basic
idea
to
it
best
applies
“1
Analogical
interpretation
is
permitted
if
it
is
in
favor
of
the
defendant.
However,
expanding
the
scope
of
the
criminal
statutes
by
way
of
interpretation
to
fill
the
loopholes
of
law
is
not
permitted.
Categories
of
crimes:
In
Turkish
Criminal
Law
there
exist
two
categories
of
criminal
offences:
felonies
(cürüm)
and
misdemeanors
(kabahat).
20
Kudret
Özersay,
Criminal
Law,
www.emu.edu.tr
21 TCK MADDE 2. -‐ (1) Kanunun açıkça suç saymadığı bir fiil için kimseye ceza verilemez
22
June
Starr
and
Jonathan
Pool,
The
Impact
of
a
Legal
Revolution
in
Rural
Turkey
Law
&
http://homes.ieu.edu.tr/~zsisli/BA100/Fundamentals%20of%20Law(4)-‐2010.pdf
24
A
code
is
presumed
to
be
coherent
in
the
sense
that
there
is
no
contradiction
between
the
rules
contained
in
it,
that
each
rule
has
one
true
meaning,
and
that
it
provides
only
one
right
answer
to
each
legal
question.
Other
characteristics
of
a
classical
code
include
its
systematic
character
and
its
use
of
abstract
rules
and
concepts.
1) Law
o f
P ersons
a)
P erson
The
word
‘‘person’’
is
derived
from
the
Latin
word
‘‘persona’’
which
originally
referred
to
a
mask
worn
by
a
human
who
was
conveying
a
particular
role
in
a
play.
With
the
era
of
enlightenment,
and
the
rise
of
liberal
individualism
in
Western
societies,
legal
system
has
abandoned
clan
or
family
responsibility,
and
individuals
are
seen
as
primary
agents,
where
the
class
of
persons
coincide
with
the
class
of
human
beings.25
Person
may
be
defined
as
any
being
that
can
be
subject
of
legal
relations.
Personality
is
the
aptitude
to
become
a
subject
of
rights
and
obligations.
Personality,
however,
is
not
a
right
(subjective),
but
a
juridical
quality,
one
that
constitutes
the
prerequisite
for
all
rights
and
duties;
it
is
equivalent
to
‘legal
capacity’.
The
subdivision
of
the
category
“persons”
into
the
two
sub-‐categories
of
“human
beings”
and
“associations
of
human
beings”
is
a
nearly
universal
feature
of
modern
civil-‐law
doctrine.26
b)
R eal
( Natural)
P ersons
( Gerçek
K işiler)
:
The
‘natural
person,’
sometimes
called
a
physical
person
(or
a
man
–
or
woman
–
,
a
human
entity,
a
human
being).
Every
real
person
is
the
holder
of
personality
rights,
such
as
the
right
to
life,
the
right
to
own
property,
the
right
to
bodily
integrity,
the
right
to
the
inviolability
and
integrity
of
personhood,
and
the
right
to
the
respect
of
his
name,
reputation
and
privacy.
These
rights
are
inalienable.
25
David
J.
Calverley,
Imagining
a
non-‐biological
machine
as
a
legal
person,
AI
&
rev.pdf
i)
Legal
Capacity
(Hak
ehliyeti):
Every
person
has
legal
capacity
to
acquire
rights
and
assume
obligations.
The
legal
capacity
of
a
person
commences
from
the
moment
of
live
birth
and
terminates
at
death.
Such
capacity
is
inherent
in
every
natural
person.
ii)
Capacity
to
Act
(Fiil
ehliyeti)
:
Capacity
to
Act
determines
whether
a
real
person
may
conclude
binding
amendments
to
his/her
rights,
duties
and
obligations,
such
as
getting
married
or
merging,
entering
into
contracts,
making
gifts,
or
writing
a
valid
will.
A
person
who
has
full
capacity
to
act
has
the
capacity
to
create
rights
and
obligations
through
his/her
actions.
Capacity
to
act
does
not
arise
with
birth,
but
will
unfold
in
a
progressive
manner.
For
this
reason,
the
legal
system
has
established
distinctive
norms
for
the
adult
and
the
juvenile.
The
law
distinguishes
majors
and
minors
in
this
way
on
the
basis
of
eighteen
(18)
years.
-‐
Full
Capacity
(Tam
ehliyet):
A
person
who
is
at
the
age
of
majority
and
has
capacity
to
consent
(power
of
discernment)
has
the
full
capacity
to
act
as
long
as
he/she
is
not
interdicted
by
court.
A
person
is
at
the
age
of
majority
when
he/she
has
reached
the
age
of
18.
-‐
Limited
Incapacity
(Limited
interdiction)
(Sınırlı
Ehliyetsiz):
Minors
or
wards
of
court
with
the
capacity
to
consent
are
regarded
as
having
limited
incapacity.
Persons
who
are
at
the
age
of
majority
may
be
made
ward
of
court
and
accordingly
become
interdicted.
Interdiction
is
the
procedure
under
Civil
Law
by
which
a
judge
appoints
a
guardian
to
handle
some
or
all
of
the
affairs
of
a
person.
The
grounds
for
interdiction
are:
mental
illness,
infirmity,
prodigality,
imprisonment
exceeding
1
year.
The
rule
applicable
to
persons
with
limited
incapacity
is
that
a
contract
signed
by
those
is
voidable
at
the
instance
of
the
legal
representative
of,
although
it
is
binding
on
the
other
party.
They
may
assume
obligations
by
their
own
acts
only
with
the
consent
of
their
legal
representatives.
Without
such
consent,
they
may
acquire
only
benefits
which
are
free
of
charge.
They
are
liable
in
damages
for
the
torts
they
commit.
Where
one
of
the
parties
is
incapable
of
giving
consent
to
a
contract,
the
contract
becomes
voidable
or
annullable
even
though
there
was
no
damage
to
the
contracting
party.
The
contracting
party
cannot
allege
the
incapacity
of
the
minor
with
whom
he/she
contracted.
-‐
Full
Incapacity
(Tam
ehliyetsiz):
A
person
lacking
capacity
to
consent
cannot
create
legal
effect
by
his
or
her
actions.
A
person
who
does
not
have
the
mental
capacity
to
understand
the
consequences
of
a
transaction
to
be
entered
are
regarded
as
totally
incapacitated.
c)
L egal
P ersons
( Tüzel
K işiler)
In
contrast
to
“natural
person,”
the
designation
“juridical/legal
person”
is
used
to
refer
to
an
entity
that
is
not
a
human
being,
but
for
which
the
legal
system
chooses
to
afford
some
of
the
same
legal
protections
and
rights
as
accorded
natural
persons.27
Legal
system
accords
legal
capacity
to
acquire
rights
to
certain
organizations,
deeming
them
to
be
subjects
of
the
law
as
“legal”
persons.
Legal
person
is
separate
and
distinct
in
law
from
its
members.
It
is
an
independent
legal
entity
with
the
capacity
to
act
and
can
thus
acquire
rights
and
create
obligations
with
binding
effect.
In
reality,
the
legal
person
is
not
a
separate
entity
besides
‘its’
duties
and
rights,
but
only
their
personified
unity.28
A
legal
person
is
either
an
organization
of
persons(e.g.:
associations,
companies)
or
special-‐purpose
fund
(e.g.
a
foundation)
that
is
recognized
by
law
as
having
legal
personality.
It
differs
from
other
organisations
in
that
it
possesses
legal
capacity
and
can
appear
before
the
courts
as
plaintiff
or
defendant.
(i.e.
capacity
to
be
a
party
in
court).29
Legislature
has
broad
discretion
to
designate
legal
persons
and
to
define
the
extent
of
their
powers
under
the
law.
In
order
for
a
group
of
natural
persons
to
be
considered
as
a
legal
person,
some
prerequisites
are:
organization
(a
legal
person
shall
be
organized
in
organs
for
the
realization
of
its
purpose.
e.g.,
board
of
directors.
In
Turkish
Law
an
association
needs
to
form
its
board
of
directors
and
general
assembly
to
be
considered
as
a
legal
person.
The
foundations
are
only
required
to
form
their
board
of
directors
and
thus
they
assume
legal
personality);
Perpetual
purpose
(legal
persons
are
required
to
have
a
perpetual
purpose;
a
group
of
natural
persons
targeting
a
one-‐time
purpose
cannot
assume
personality);
Legal
permission
(The
legislator
decides
which
group
of
natural
persons
will
be
granted
a
legal
personality).
The
legal
person
acts
through
its
organs
and
legal
representatives.
The
acts
of
the
representative
–
provided
that
they
have
been
executed
in
the
name
of
the
27
Jessica
Berg,
a.g.e.
28 Hans Kelsen, GENERAL THEORY OF LAW & STATE (Anders Wedberg tr. 1945)
29
http://www.eurofound.europa.eu/emire/GERMANY/LEGALPERSON-‐DE.htm
legal
person
and
within
the
power
of
representation
–
give
rights
and
obligate
the
legal
person.
i)
Public
law
legal
persons:
In
public
law,
the
essential
legal
person
is
the
state.
According
to
the
Turkish
Constitution
(art.
123)
a
public
law
legal
person
can
only
be
established
by
law
or
by
the
authority
vested
by
law.
Local
administrative
bodies
(const.
art.
127),
professional
organizations
(const.
art.
135)
such
as
Bar
association,
Chamber
of
Commerce
and
Industry
are
public
law
persons
TRT
is
an
‘impartial’
public
law
person
(const.
art.
133)
and
universities
are
‘scientifically
autonomous’
public
law
legal
persons
(const.
art.
130).
In
international
law,
various
organizations
possess
legal
personality
including
inter-‐governmental
organizations
such
as
United
Nations,
World
Bank,
International
Monetary
Fund,
European
Council
etc.
ii)
Private
law
legal
persons
:
Both
foundations
and
associations
are
non-‐profit
legal
persons
regulated
under
the
Civil
Code.
Provisions
contained
in
the
Civil
Code
establish
the
general
framework
for
associations
(dernek)
and
in
broader
terms
for
all
private
law
legal
persons.
Some
associations
such
as
political
parties,
trade
unions
and
sports
clubs,
have
been
subject
to
separate
legislation
due
to
their
special
field
of
activity.
Foundation
(Vakıf)
is
the
other
private
law
legal
person
regulated
under
Civil
Code
and
it
is
regarded
as
a
fund
established
and
maintained
for
charitable,
educational,
religious,
research,
or
other
benevolent
purposes.
Both
in
foundations
and
associations,
the
purpose
must
not
be
contrary
to
law,
public
policy
and
public
morals;
it
must
not
be
impossible
to
obtain.
Companies
are
profit
seeking
private
legal
persons
regulated
under
the
Commercial
Code.
According
to
Turkish
law
all
companies
regulated
under
Commercial
Code
have
legal
personality
however
that
may
not
be
the
case
for
all
jurisdictions.
In
some
countries
only
certain
types
of
companies
are
vested
in
with
legal
personality.
In
Turkey,
Companies
acquire
legal
personality
upon
registration
in
the
commercial
register.
In
common
law
tradition
the
legal
personality
of
a
corporation
includes
five
legal
rights:
the
right
to
a
common
treasury
or
chest
(
which
includes
the
right
to
own
property)the
right
to
a
corporate
seal
(grants
the
legal
person
the
right
to
make
and
sign
contracts)
the
right
to
sue
and
be
sued
the
right
to
hire
agents
(employees)
the
right
to
make
by-‐laws
(the
right
to
self-‐governance,
a
display
of
autonomy).
In
common
law,
a
corporation
sole
is
a
corporation
consisting
only
one
single
member:
e.g.
The
Crown
in
commonwealth
realms.
A
corporation
aggregate,
on
the
other
hand,
is
a
corporation
consisting
more
than
one
member.
iii)
Effects
of
legal
personality
-‐ Distinct
patrimony
-‐ Procedural
capacity
ii) The
right
to
usufruct
(intifa
hakkı)
also
differs
between
natural
and
legal
persons.
While
natural
persons
may
enjoy
that
right
till
their
death-‐provided
a
shorter
term
for
enjoyment
is
not
agreed
upon-‐,
for
legal
persons
the
time
limit
for
enjoyment
is
set
at
100
years.
2)
L aw
o f
P roperty
Objects,
which
cannot
be
moved
from
one
place
to
another
and
are
fixed
in
their
location,
such
as
land
and
independent
apartments
subject
to
Condominium30
are
regarded
as
immovable
property.
Other
tangible
property
falls
under
the
category
of
movables.
Rights
on
movables
and
immovable
are
referred
as
“real
rights”
and
regulated
in
the
4th
book
of
Civil
Code.
a)
P roperty
r ight
/
O wnership
( Mülkiyet)
30
Condominium
(Kat
mülkiyeti):
Each
of
the
individual
apartments
or
houses
in
1)
T he
T erm
“ Obligation”
“An
obligation
is
a
legal
tie
which
binds
us
to
the
necessity
of
making
some
performance
in
accordance
with
the
laws
of
our
state.”
(Inst.
3.13.pr)
“The
essence
of
obligation
does
not
consist
in
that
it
makes
some
property
or
a
servitude
ours,
but
that
binds
another
person
to
give,
do
or
perform
something
for
us.”
Paul.
Inst.
Book
II
(D.44.7.3pr.)
These
two
definitions
from
classical
Roman
law
emphasize
two
aspects
of
an
obligation.
Firstly,
the
obligation
is
a
legal
tie
(vinculum
iuris)
between
creditor
and
debtor
and
is
regarded
as
creating
a
relationship
between
the
parties.
The
legal
effect
of
this
tie
concerns
only
the
parties
of
the
obligation
(obligor-‐obligee)
and
is
not
extended
to
third
parties
(although
there
are
few
exceptions
to
this
principle:
e.g.
contracts
concluded
for
the
benefit
of
a
3rd
person).
An
obligation
has
twofold
consequences;
a
duty
arises
on
the
part
of
the
person
incurring
the
obligation,
and
there
is
a
corresponding
right
in
the
other
person
to
enforce
that
duty
by
legal
action.
By
virtue
of
the
obligation
the
obligee
is
entitled
to
demand
performance
from
the
obligor.
Performance
may
also
consist
in
refraining
from
doing
something.
2)
T he
S ource
o f
O bligations
• Contract
(Sözleşme)
• Tort
(Haksız
Fiil)
• Unjust
enrichment
(Sebepsiz
Zenginleşme)
The
Turkish
Code
of
Obligations
cites
three
main
sources
for
obligations:
1-‐Obligations
arising
from
contracts
2-‐Obligations
arising
from
delict/tort
3-‐Obligations
arising
from
unjust
enrichment
(which
is
actually
a
quasi-‐contract-‐
sözleşme
benzeri).
Code
of
Obligations
(CO),
as
a
supplementary
part
of
the
Civil
Code,
provides
the
main
legal
framework
for
contracts
and
torts.
Provisions
of
CO
are
divided
into
two
parts:
General
Part
which
regulates
general
principles
of
contracts
and
torts.
Special
Part
deals
with
specific
types
of
contracts
e.g.:
sale
contract,
rental
contract,
service
contract.
WEEK
5
¢Explain contract and tort as sources of obligations
33 Ulrich Drobnig, General Principles of European Contract Law, Petar Sarcevic &
B)
FORMATION
OF
CONTRACTS
For
a
contract
to
be
valid,
certain
requisites
must
be
fulfilled.
1)Valid
a greement
The
well-‐known
mechanism
of
offer
(icap)
and
acceptance
(kabul)
is
recognized
everywhere
in
Europe. A
contract
requires
a
mutual
agreement
of
the
parties.
This
agreement
may
be
either
explicit
(açık)
or
implicit
(örtülü).
There
is
an
agreement
when
the
parties
lead
each
other
reasonably
to
believe
that
they
are
of
the
same
mind
about
a
given
transaction
(Offer+Acceptance=Agreement-‐
Consensus).
The
same
mind
of
parties
about
a
given
transaction,
is
reached
by
an
offer
on
the
one
side,
and
the
apparent
acceptance
of
the
offer
on
the
part
of
the
other.
The
offer
and
acceptance
formula,
developed
in
the
19th
century,
identifies
a
moment
of
formation
when
the
parties
are
of
one
mind.
An
offer
as
"an
expression
of
willingness
to
contract
on
certain
terms,
made
with
the
intention
that
it
shall
become
binding
as
soon
as
it
is
accepted
by
the
person
to
whom
it
is
addressed",
the
"offeree".36
An
offer
is
a
statement
of
the
terms
on
which
the
offeror
is
willing
to
be
bound.
It
is
the
contractual
intent
to
be
bound
by
a
contract
with
definite
and
certain
terms
communicated
to
the
offeree.
The
communication
between
the
parties
may
take
different
forms,
such
as
a
letter,
newspaper,
fax,
email
and
even
conduct,
as
long
as
it
communicates
the
basis
on
which
the
offeror
is
prepared
to
contract.37
For
an
offer
to
be
capable
of
becoming
binding
on
acceptance
must
be
definite,
clear,
and
final.
If
it
is
a
nearly
preliminary
move
into
negotiation
which
may
lead
to
a
contract,
it
is
not
an
offer
but
an
invitation
to
treat/offer.
An
offeror
may
revoke
an
offer
before
it
has
been
accepted,
but
the
revocation
must
be
communicated
to
the
offeree.
The
acceptance
must
be
communicated.
Exception
to
this
rule
is
unilaterally
obliging
contracts
where
the
assent
of
the
non-‐obliging
party
may
be
deemed
to
exist.
An
offer
can
only
be
accepted
by
the
offeree,
that
35
İbid.
37
http://en.wikipedia.org/wiki/Offer_and_acceptance
is,
the
person
to
whom
the
offer
is
made.
An
offer
must
be
accepted
exactly,
without
modifications;
any
change
the
offer
in
any
way,
is
a
counter-‐offer.
38
Since
the
basis
of
a
contract
is
the
exchange
of
assents,
it
is
essential
that
the
assents
of
the
parties
be
genuine,
that
is
to
say
that
there
be
a
genuine
meeting
of
the
minds.
Unintentional
differences
of
assent
may
be
due
to
several
causes
such
as,
mistake(hata),
fraud(hile)
or
duress(tehdit).
Two
types
of
Mistake
:
-‐
Immaterial(about
the
motives
for
entering
into
contract,
may
not
be
the
basis
for
voiding
a
contract)(saik
hatası)
-‐
Material(error
in
object
or
in
person,
to
nature
of
the
transaction,
to
quantity,
to
the
necessary
state
of
facts
of
a
contract).
2)
C apacity
t o
c ontract
The
legal
validity
of
a
contract
depends
on
the
full
capacity
of
the
real
person
who
enters
into
the
transaction.
This
means
“capacity
to
act”
of
real
persons
or
legal
persons.
Contracts
concluded
by
real
persons
of
full
incapacity
are
void
with
no
legal
effect.
Contracts
made
by
real
persons
of
limited
capacity
are
voidable.
2) Voidable
c ontracts
Voidable
contracts
may
be
rejected
at
the
option
of
one
or
both
of
the
parties,
due
to
the
lack
of
one
or
more
of
the
elements
of
a
valid
contract.
Voidable
contracts
are
valid
until
declared
void.
Contracts
made
by
mistake
are
generally
considered
voidable
according
to
Code
of
Obligations.
The
validity
of
a
voidable
contract
may
only
be
challenged
by
an
interested
party.
E)
TERMINATION
OF
CONTRACTS
-‐ By
fulfillment
of
the
obligations
of
the
parties
to
each
other.
Performance
(ifa)
can
be
either
specific
(aynen
ifa)
or
as
a
compensation
(nakdi
ifa).
-‐ By
becoming
impossible
of
the
subject
matter
due
to
the
circumstances
beyond
the
control
of
the
parties.
.
-‐ Due
to
the
breach
of
a
party
for
the
reason
that,
the
other
party
fails
to
fulfill
his
obligation
properly.
II)
TORT
A
tort
[haksız
fiil]
is
a
civil
wrong
that
causes
injury
to
another
person
or
his/her/its
property.
It
is
a
negligent
or
intentional
harmful
act,
which
does
not
arise
out
of
a
contract
or
statute.
For
example,
when
someone
commits
a
crime,
e.g.,
assault,
he
or
she
is
punishable
under
criminal
law,
but
the
victim
may
also
seek
financial
compensation
from
the
tortfeasor,
i.e.,
the
one
who
committed
the
tort,
for
the
injury
suffered.39
General
Part
of
CoO
provides
the
general
framework
for
tortious
liability.
However
specific
legislation
exists
in
different
areas,
dealing
with
particular
types
of
damages.
:e.g.
Motor
Vehicle
Act.
39
Vivek
Pande,
BLAW
Course
Outline
A)
ELEMENTS
OF
AN
ACTION
IN
TORT
Under
Turkish
Code
of
Obligations,
in
an
action
in
tort
the
Plaintiff
must
establish
that;
1) Unlawful
a ct
The
act
may
also
be
in
the
from
of
an
an
omission,
e.g.,
a
driver
who
causes
an
accident
by
not
paying
attention
to
the
road.
A
tortfeasor
may
raise
certain
defences
which
cure
the
illegality
of
the
act:
§ the
consent
of
the
injured
victim,
e.g.,
a
patient’s
consent
to
surgery,
boxing
game
§ legitimate
self-‐defense
[meşru
müdafaa],
e.g.,
hitting
an
attacker
§ necessity
(ızrar
hali),
e.g.,
to
avoid
striking
a
child,
a
motorist
crashes
through
a
fence
§ fulfillment
of
a
duty
imposed
by
law,
e.g.,
surgeon
operates
on
an
unconscious
accident
victim,
arrest
of
a
person
upon
court
order.
2) Negligence
o f
t he
t ortfeasor
Negligence
may
be
be
proved
by
showing
that
the
tortfeasor;
§ acted
with
intent
[kasıt],
i.e.,
deliberately
and
not
by
mistake
§ acted
with
negligence
[ihmal],
i.e.,
failed
to
exercise
reasonable
care
contributory
fault
is
a
full
or
partial
defense
to
negligence,
e.g.,
tortfeasor
hits
a
pedestrian
who
is
sleepwalking
on
a
dark
road.
3) Damages
The
tortfeasor’s
unlawful
act
should
result
in
damages
[zarar]
Damages
may
include
§ actual
losses
(damnum
emergens-‐
fiili
zarar)
§ lost
profits
and
earnings
(lucrum
cessans-‐
mahrum
kalınan
kar)
§ pain,
suffering,
grief,
emotional
distress,
etc.
(manevi
zarar)
Vicarious
Liability
[vekalet
nitelikli
sorumluluk]
may
be
imposed,
i.e.,
damages
are
also
sought
from
someone
other
than
the
tortfeasor,
e.g.,
employers
are
usually
liable
for
the
torts
of
their
employees
committed
during
the
scope
of
their
employment.
joint
and
several
liability
[müteselsil
sorumluluk]:
may
be
imposed,
i.e.,
damages
are
sought
from
many
tortfeasors
who
collaborate
to
commit
the
act.
are
at
fault
§ the
victim
may
choose
to
recover
the
entire
amount
of
damages
from
some
or
all
of
the
tortfeasors
§ any
tortfeasor
who
pays
damages
has
the
right
to
seek
proportional
reimbursement
from
non-‐paying
tortfeasors
4) Proximate
C ausation
The
damages
must
be
CAUSED,
i.e.,
resulted
from,
the
tortfeasor’s
unlawful
act.
There
must
be
Proximate
Causation
[uygun
illiyet
bağı],
i.e.,
a
logical
relationship
between
the
unlawful
act
and
the
damages,
taking
into
consideration
the
ordinary
course
of
events
and
life
experiences
§ adequate
causation
does
not
exist
if
there
is
an
Intervening
Cause,
i.e.,
some
other
act
or
condition
that
causes
injury
to
the
victim
after
the
tort
has
been
committed
B)
STRICT
LIABILITY
The
law
of
non-‐contractual
liability
is
founded
on
individual
wrongful
behaviour.
Thus
general
principle
is
the
Negligence
liability.
• Negligence
liability
(İhmal-‐Kusur
Sorumluluğu)
–
a
duty
to
compensate
if
the
damage
was
caused
through
a
negligent
behaviour
Strict
liability
(Kusursuz
Sorumluluk)
–
compensation
duty
for
all
damages
caused
without
need
to
prove
negligence.
Strict
liability
regimes
may
be
stipulated
in
different
specific
legislation
(for
instance
environmental
damages).
Strict
liability
entails
that
the
defendant
must
pay
for
damages
resulting
for
the
activity
for
which
he/she
is
strictly
liable,
i.e.:
nuclear
plant
or
,
liability
imposed
on
a
business
for
manufacturing
a
defective
product
that
causes
injury.
WEEK
6
¢Explain difference between personal and real security
¢Explain types of personal and real security
SECURITY CONTRACTS
The
main
problem
that
can
arise
from
an
obligation
on
behalf
of
the
creditor
is
the
debtor’s
failure
to
perform
his/her
duty.
The
creditor’s
historical
need
for
a
security
against
this
probability
of
non-‐performance
is
the
idea
behind
the
introduction
of
the
legal
institution
of
security.
Where
someone
incurs
a
contractual
obligation
towards
another,
it
is
only
natural
that
he
will
often
be
asked
by
his
new
creditor
to
promise
some
kind
of
penalty
or
guarantee
in
case
of
non-‐fullfillment.
The
creditor
will
normally
try
to
minimize
the
risk
of
losing
out
in
one
of
two
ways:
he
can
either
ask
to
be
allocated
a
specific
item
belonging
to
the
debtor
(or
a
third
party)
from
which
he
will,
in
case
of
default
or
non-‐
performance,
be
able
to
obtain
satisfaction;
or
he
may
ask
another
party
(or
parties)
to
guarantee
fulfillment
of
the
principal
obligation.
In
another
words,
he
will
try
to
secure
his
position
either
by
way
of
a
real
right
(ownership,
right
of
pledge,
mortgage)
or
by
actions
in
personam
against
one
or
more
additional
debtors
(personal
security).
Thus;
starting
from
the
ancient
times
of
Roman
law,
we
can
observe
two
main
types
of
securities:
in
personam-‐personal
(şahsi)
and
in
rem-‐real
(ayni).
The
in
personam
securities
creates
rights
which
can
only
be
asserted
against
persons
while
in
rem
securities
creates
rights
which
can
be
asserted
against
any
third
person.
I) PERSONAL
SECURITIES
A
personal
security
can
be
given
in
the
type
of
suretyship
(kefalet),
guarantee
(garanti)or
by
assuming
the
obligation
as
a
co-‐debtor.
A) SURETYSHİP
(KEFALET)
Traditionally
the
most
important
type
of
personal
security
is
the
contract
of
suretyship
where
the
surety
(kefil)
binds
himself
to
the
creditor
of
a
third
party
to
be
responsible
for
the
fullfilment
of
the
obligation
of
that
third
party.
n Suretyship
is
a
unilateral
contract
(tek
taraflı
sözleşme)
in
the
sense
that
only
the
surety
promises
to
perform
without
receiving
any
promise
of
performance
of
the
other
party.
n The
parties
of
the
suretyship
contract
are
the
creditor
and
the
surety
(kefil).
The
principal
debtor
is
not
a
party;
furthermore,
his
consent
is
not
even
necessary
for
the
conclusion
of
a
suretyship
contract.
n However,
notwithstanding
the
fact
that
the
suretyship
contract
is
a
surety’s
own
separate
contract
with
the
creditor,
its
validity
is
still
tied
to
the
validity
of
the
principal
obligation
that
the
surety
is
backing
up.
In
another
words;
the
extent
of
the
principal
obligation
at
any
time
determines
the
obligation
of
the
surety.
This
is
the
indication
of
the
‘accessory
nature’
of
the
suretyship
contract.
The
fate
of
a
suretyship
contract
is
dependant
to
the
primary
obligation’s
fate
meaning
that
when
the
primary
obligation
is
extinguished
(for
whatever
reason),
the
accessory
obligation
(suretyship)
is
also
extinguished
with
it.
n Another
effect
of
the
‘accesory
nature’
(feri
niteliği)
of
the
surety’s
obligation
is
that
its
performance
cannot
be
requested
unless
the
principal
obligation
has
become
mature
or
enforceable.
a)
A
P rimary
O bligation
A
legally
valid
suretyship
requires
the
existence
of
a
principal
obligation
although
it
is
not
essential
that
the
principal
obligation
should
exist
when
the
contract
is
formed.
The
payment
of
a
future
or
conditional
debt
may
also
be
undertaken
by
the
surety.
As
mentioned
earlier,
the
fate
of
the
surety
contract
hinges
upon
the
fate
of
the
primary
obligation,
therefore,
if
the
principal
obligation
is
a)void
because
of
the
fact
that
the
contract
it
derives
from
contain
provisions
that
are
impossible,
illegal
or
contrary
to
public
morals
or
b)void
by
reason
of
the
incapacity
of
the
principal
debtor
or
c)voidable
by
reason
of
mistake-‐duress-‐
fraud
in
the
formation
of
the
contract
it
derives
from
and
the
debtor
rescinds
the
contract,
then
the
suretyship
is
unenforceable
as
well.
The
only
exception
to
this
rule
is
the
case
where
the
surety
undertakes
an
obligation
knowing
that
it
arises
from
a
contract
which
is
void
against
the
principal
debtor
due
to
mistake
or
incapacity.
In
such
a
case,
the
surety
will
be
held
liable
regardless.
b)
C apacity
o f
t he
S urety
Persons
who
have
a
full
contractual
capacity
are
able
to
give
securities
by
entering
into
contracts
of
surety.
An
appointed
representative
of
a
person
without
a
legal
capacity
cannot
enter
into
a
surety
contract
for
the
name
of
the
person
under
representation.
c )
F orm
R equirement
A
surety
contract
must
be
in
writing
in
order
to
be
deemed
as
valid.
A
valid
suretyship
contract
must
also
include
a
declaration
of
intent
to
create
a
suretyship
and
the
maximum
amount
of
suretyship
liability.
The
surety,
the
creditor
and
the
principal
obligation
must
also
be
indentified
within
the
suretyship
contract.
2)
T ypes
o f
S uretyship
3) Effects
o f
S uretyship
n The
surety
is
only
liable
to
the
extent
of
the
maximum
amount
stated
in
the
surety
contract
including
the
amount
brought
about
by
the
legal
consequences
of
the
debtor’s
non-‐performance
or
improper
performance
or
default.
n The
surety
is
entitled
and
obliged
to
bring
forward
against
the
creditor
the
defenses
and
exceptions
to
which
the
principal
debtor
is
entitled
even
if
the
principal
debtor
opts
to
waive
them.
The
surety
can
assert
the
principal
obligation
is
not
binding
on
the
grounds
that:
a)
the
principal
debtor
lacks
the
capacity
b)the
collection
of
the
principal
debt
is
barred
by
lapse
of
time
(zamanaşımı)
c)the
principal
obligation
has
already
been
discharged.
The
surety
has
also
the
right
to
assert
defenses
arising
from
the
contract
of
suretyship
such
as
that
the
surety
contract
is
not
valid
or
is
already
terminated.
In
ordinary
suretyship,
as
mentioned
above,
the
surety
has
also
the
right
to
demand
that
the
creditor
first
resort
to
the
principal
debtor
for
performance
or
first
have
recourse
to
the
pledge
(if
there
is
one).
A
Surety
cannot
argue
the
insolvency
of
the
principal
debtor
as
a
defense
against
the
creditor.
n Proceedings
to
collect
the
principal
debt
cannot
be
instituted
against
the
surety
before
the
fixed
date
of
payment
even
if
the
principal
debtor
has
become
bankrupt.
n A
creditor
who
has
been
satisfied
by
a
surety
is
under
the
obligation
to
hand
in
to
the
surety
the
documents
needed
for
the
enforcement
of
his
rights
and
deliver
the
securities
created
for
the
principal
debt.
n If
the
surety
pays
in
part
or
all
of
the
principal
debt,
he
must
notify
the
principal
debtor
thereof.
Provided
he
fails
to
do
so
and
the
principal
debtor
also
pays
the
creditor
bona
fide
(in
good
faith),
the
surety
is
deemed
to
forfeit
his
right
of
recourse
against
him.
In
such
a
case,
the
surety
may
bring
an
action
of
unjustified
enrichment
(condictio
indebiti)
against
the
creditor
since
the
creditor
has
been
enriched
in
expense
of
the
surety
unjustified.
(The
initial
execution
of
the
principal
obligation
by
the
principal
debtor
abrogates
the
causa
of
this
successive
performance
by
the
surety.)
n A
surety
is
released
by
the
extinction
of
the
principal
debt
in
whatever
way
it
occurs.
There
are
also
other
grounds
for
termination
of
a
contract
of
suretyship
which
originate
from
the
contract
of
suretyship
itself.
B)
GUARANTEES
(GARANTI)
A
guarantee
is
a
contract
that
some
particular
performance
will
be
undertaken
as
agreed
regardless
of
the
existence
of
a
prior
or
principal
obligation.
1)
P ure
G uarantees
A
pure
guarantee
is
utilized
primarily
for
guaranteeing
the
losses
of
an
investor
or
assuring
him
a
fixed
ratio
of
profit
in
the
course
of
his
business
regarding
his
enterprise.
Pure
guarantees
do
not
benefit
from
special
legal
provisions
and
are
governed
by
the
general
conditions
applicable
to
all
contracts.
2)
C ollateral
G uarantees
Collateral
guarantee
is
a
contract
that
requires
the
existence
of
a
primary
obligation
and
by
which
the
guarantor
undertakes
to
compensate
the
creditor
in
case
the
primary
debtor
fails
to
perform
his
obligation.
The
main
difference
between
a
surety
and
a
collateral
guarantee
is
that
the
surety
creates
an
accessory
obligation
and
therefore
is
not
binding
where
the
principal
obligation
is
not
valid
whereas
the
collateral
guarantee
is
an
independent
contract
which
creates
a
primary
obligation
free
from
the
faith
of
the
obligation
it
is
created
to
back
up.
Another
important
distinction
is
that
the
surety
contract
must
be
in
writing
to
be
deemed
as
valid
while
there
is
no
requirement
of
such
for
the
validity
of
the
collateral
guarantee.
Collateral
guarantees
are
usually
utilized
by
banks
in
the
form
of
letters
of
guarantees.
A
contract
of
guarantee
by
a
bank
must
meet
the
following
criteria:
n The
bank
shall
assume
totally
or
partially
the
risk
that
the
beneficiary
may
face
n The
contract
shall
contain
clauses
that
stipulate
an
independent
undertaking
whereby
the
bank
is
the
principal
debtor
n The
contract
shall
include
clauses
regarding
the
acceptance
of
the
punctual
payment
of
a
due
debt
without
any
prior
notice
or
action
against
the
primary
debtor
whose
performance
is
guaranteed
Unless
there
is
a
contract
of
counter-‐guarantee,
a
guarantor
is
not
entitled
to
a
right
of
recourse
against
the
debtor
whose
performance
was
guaranteed.
C-‐
BILLS
OF
EXCHANGE
GUARANTEES
(AVALS)
An
Aval
guarantees,
wholly
or
partially,
the
payment
of
the
amount
of
a
Bill
of
Exchange
(Poliçe).
This
guarantee
can
be
given
by
a
third
person
as
well
as
a
person
whose
signature
already
appears
on
the
bill.
An
aval
must
be
in
writing-‐
attached
to
the
Bill
of
Exchange-‐expressed
by
the
words
‘it
is
for
aval’
or
equivalent-‐signed
by
the
guarantor.
When
the
guarantor
pays
the
bill,
he
consequently
acquires
all
rights
attaching
to
the
bill
against
the
person
guaranteed
and
against
the
others
who
are
liable
on
the
bill
to
that
person.
II)
REAL
SECURITIES
In
today’s
world,
creditors
usually
prefer
real
security
over
personal
security.
It
provides
them
with
assets
of
a
rather
stable
value
which
can
be
converted
to
cash
(by
realization
of
the
property)
even
in
the
event
of
insolvency
and
it
excludes
the
risk
of
a
(second)
lawsuit
against
the
surety
(who
may
be
unwilling
to
pay),
or
being
faced
with
his
financial
collapse
too,
hence
the
Roman
legal
expression:
–Plus
cautionis
in
re
est
quam
in
persona
(goods
are
better
sureties
than
the
debtor’s
person)-‐.
It
is
not
wrong
to
say
that
this
statement
is
a
fair
reflection
of
the
modern
trend
in
commercial
life.
The
classification
of
real
property
takes
into
consideration
the
nature
of
the
property
in
question.
Therefore
we
can
talk
about
two
categories
of
real
security:
Real
security
over
immovable
property
(taşınmaz
eşya)
and
Real
security
over
movable
property
(taşınır
eşya).
A) REAL
SECURITY
OVER
IMMOVABLE
PROPERTY
The
most
common
type
of
real
security
over
immovable
property
is
mortgage
(ipotek).
Apart
from
mortgage
as
a
real
security
there
is
also
the
mortgage
certification
(ipotekli
borç
senedi)
and
the
land
charge
notes
(irat
senedi),
both
of
which
are
scarce
in
practice.
Unlike
mortgage,
mortgage
certificates
and
land
charge
notes
are
freely
transferable
negotiable
instruments
(kıymetli
evrak)
issued
to
the
order
(namına)
of
the
creditor
or
to
the
bearer
(hamiline)
without
specifying
the
basis
of
liability
although
the
mortgagor
retains
the
liability
for
the
secured
debt
of
both
the
mortgage
certificates
and
land
charge
notes.
1) Mortgage
( İpotek)
The
most
important
aspect
of
mortgage
is
that
it
creates
a
real
right
over
the
mortgaged
property
on
behalf
of
the
creditor.
This
real
right
is
accessory
to
the
debt
secured
thereby
and
consequently
the
validity
of
a
mortgage
requires
the
existence
of
a
valid
debt
although
it
is
not
essential
that
such
a
debt
shall
exist
at
the
time
of
the
formation
of
contract
since
legally
a
mortgage
can
be
created
for
the
purpose
of
securing
a
future
or
conditional
debt
provided
it
becomes
effective
at
the
time
of
the
enforcement
of
the
right
of
the
creditor
against
the
mortgagor.
Effects
of
Mortgage
n A
mortgage
can
be
created
for
a
single
debt
as
well
as
for
several
debts
on
the
same
property
to
the
extent
that
this
does
not
impose
any
unlawful
restriction
on
the
prospective
economic
activity
of
the
mortgagor.
n A
mortgage
can
be
created
on
immovable
property.
Here,
the
term
immovable
property
includes
land,
alienable
personal
servitudes
that
can
be
entered
in
to
the
Land
registry
(tapu
sicili)
as
immovable
properties,
independent
parts
of
a
building
subject
to
flat
ownership
and
shares
of
co-‐owners
of
land.
n A
mortgage
property
can
belong
to
the
debtor
or
a
third
person
who
secures
the
debt
in
favor
of
the
debtor.
As
stated
above,
a
mortgage
(being
a
real
security)
does
not
create
a
personal
liability
on
the
owner
of
the
real
property,
the
liability
does
not
extend
outside
the
mortgaged
property.
n A
mortgage
on
a
property
includes
all
its
integral
parts
(mütemmim
cüz)
and
accessories
(teferruat)
(f.e.
a
mortgage
created
on
a
piece
of
land
will
cover
all
the
buildings
and
trees
on
that
land)
n A
mortgage
will
only
be
effective
once
it
is
recorded
in
the
Land
register.
The
prerequisite
for
the
registration
of
a
mortgage
is
a
contract
between
the
creditor
and
the
mortgagor.
This
contract
does
not
create
the
mortgage
but
conveys
the
right
and
obligation
to
record
the
mortgage
in
the
Land
register.
n The
owner
of
the
mortgaged
property
can
create
further
mortgages
on
the
same
property.
However,
the
amount
realized
on
the
sale
of
the
property
will
be
disbursed
to
the
creditors
in
their
order
of
priority
which
will
be
determined
in
accordance
with
the
principles
of
‘fixed
ranks’
system.
The
‘fixed
ranks’
system
ensures
the
mortgages
on
the
same
property
to
acquire
an
order
of
priority
according
to
the
rank
of
the
place
in
which
they
are
registered
in
the
Land
register.
n If
the
debtor
fails
to
pay
his
debt
the
creditor
can
demand
the
sale
of
the
property
under
mortgage.
There
is
no
statute
of
limitations
for
an
action
on
a
debt
secured
by
a
mortgage.
Any
agreement
made
before
the
maturity
of
the
mortgage
debt
and
providing
that
the
creditor
will
become
the
ipso
iure
owner
of
the
mortgaged
property
is
null
and
void.
(This
universal
principle
is
called
the
lex
commisoria
prohibiton)
n Foreclosure
proceedings
begin
with
the
request
of
the
creditor.
The
execution
office
will
sell
the
property
and
distribute
the
proceeds
of
the
sale
among
the
secured
creditors
in
accordance
with
their
order
of
priority.
B)
REAL
SECURITY
O VER
MOVABLES
The
creation
of
pledge
(pignus-‐rehin)
provides
a
contractual
security
in
rem
over
movable
property,
claims
and
other
assignable
rights.
1) P ledges
b) Ships
a nd
A ircrafts
Notwithstanding
the
fact
that
ships
and
aircrafts
are
immovable
properties,
they
are
subject
to
mortgage
not
pledge.
Mortgages
on
ships
shall
be
registered
with
the
Ship
Registry
(gemi
sicili)
whereas
mortgages
on
aircrafts
shall
be
recorded
with
the
Civil
Aviation
Registry
(Sivil
Havacılık
Sicili).
WEEK
7-‐8
¢Explain general principles governing international sales
¢Explain the general structure of CISG
¢Familiarize with common clauses in sales contracts
40
Excluding
France
41 It must be stated here that apart from delivering the documents and the keys
of
a
car
in
sale,
in
order
to
establish
the
ownership
of
the
car
its
registration
by
the
purchaser
is
also
required.
42
In
some
few
exceptional
cases,
the
ownership
may
be
transfered
without
the
(1) The first part (Art. 1-‐13 CISG) contains rules on its sphere of application
(2) The second part (Art. 14-‐24 CISG) deals with the formation of the contract.
(3)
The
third
part
(Art.
25-‐88
CISG)
is
by
far
the
most
comprehensive
part
of
the
Convention.
It
is
entitled
"Sale
of
Goods"
and
provides
the
actual
"sales
law"
of
the
Convention.
It
is
subdivided
into
five
chapters:
Chapter
I
(Art.
25-‐29
CISG)
contains
some
general
provisions
which
may
be
relevant
throughout
the
entire
sales
law,
in
particular
the
definition
of
the
notion
of
"fundamental
breach"
which
will
be
relevant
in
particular
as
a
precondition
for
the
right
to
avoid
the
contract.
Chapter
II
(Art.
30-‐52
CISG)
deals
with
the
obligations
of
the
seller,
delivery
of
the
goods
and
the
handing
over
of
documents.
The
conformity
of
the
goods
and
third
party
claims
are
also
included.
Finally,
Section
III
(Art.
45-‐52
CISG)
contains
the
core
element
of
every
sales
law,
44http://en.wikipedia.org/wiki/United_Nations_Convention_on_Contracts_for_th
e_International_Sale_of_Goods
45
Kanun
No.
5870
Kabul
Tarihi:
2/4/2009
Chapter
III
(Art.
53-‐65
CISG)
has
a
similar
structure:
Art.
53
CISG
states
the
buyer's
obligations
in
a
general
way,
Section
I
(Art.
54-‐59
CISG)
deals
with
the
obligation
to
pay
the
price,
Section
II
(Art.
60
CISG)
deals
shortly
with
the
obligation
to
take
delivery
and
Section
III
(Art.
61-‐64
CISG)
governs
the
seller's
remedies
for
breach
of
contract
by
the
buyer.
The
structure
of
the
seller's
remedies
is
similar
to
the
structure
of
the
buyer's
remedies.
Chapter
IV
(Art.
66-‐70
CISG)
deals
with
the
passing
of
risk
and
is
closely
linked
to
the
buyer's
obligation
to
pay
the
price.
Chapter
V
(Art.
71-‐88
CISG)
contains
provisions
common
to
the
obligations
of
the
seller
and
of
the
buyer.
Section
I
(Art.
71-‐73
CISG)
deals
with
anticipatory
breach
and
installment
contracts.
Section
II
(Art.
74-‐77
CISG)
contains
the
extremely
important
rules
on
damages;
this
section
is
closely
linked
to
Section
IV
(Art.
79-‐
80
CISG)
which
governs
the
exemptions
from
the
strict
liability
for
damages
that
the
Convention
imposes
on
the
parties.
Section
III
(Art.
78
CISG)
contains
a
short
(and
fragmentary)
rule
on
interest.
Section
V
(Art.
81-‐84
CISG)
governs
the
effects
of
an
avoidance
of
the
contract
and
Section
VI
(Art.
85-‐88
CISG)
deals
with
the
preservation
of
the
goods.
(4)
The
fourth
part
of
the
Convention
(Art.
89-‐101
CISG)
contains
final
provisions
which
deal
in
particular
with
the
details
of
ratification
etc.,
with
possible
reservations
against
certain
parts
or
provisions
of
the
Convention
and
with
the
entry
into
force
of
the
Convention.
B)
SPHERE
OF
APPLICATION
AND
GENERAL
PROVISIONS
(ARTICLES
1-‐13)47
47
From
Wikipedia,
the
free
encyclopedia
2) Whom
t o
a pply
Article
1
defines
the
Convention's
scope
of
application.
The
Convention
applies
when
the
parties
have
their
places
of
business
in
different
Contracting
States
or
when
conflict
rules
designate
the
law
of
a
Contracting
State.
The
CISG
applies
to
contracts
of
sale
of
goods
between
parties
whose
places
of
business
are
in
different
States
when
these
States
are
Contracting
States.
Liaison
or
representative
offices
are
places
of
business
for
CISG
purposes.
However,
if
a
party
has
more
than
one
place
of
business,
the
place
of
business
is
that
which
has
the
closest
relationship
to
the
contract
and
its
performance,
having
regard
to
the
circumstances
known
to
or
contemplated
by
the
parties
at
any
time
before
or
at
the
conclusion
of
the
contract
(Art.
10/a).
A
sale
between
two
Italian
companies
where
the
goods
sold
are
to
be
manufactured
and
then
imported
into
Italy
would
not
fall
under
the
CISG.
On
the
contrary,
a
sale
between
a
United
States
and
an
Italian
company
regarding
shoes
manufactured
in
Sicily
and
delivered
in
Florence
would
fall
within
the
ambit
of
the
CISG,
although
the
shoes
never
would
leave
Italy
prior
to
delivery.48
The
CISG
also
applies
if
the
parties
are
situated
in
different
countries
(which
need
not
be
Contracting
States)
and
the
conflict
of
law
rules
lead
to
the
application
of
the
law
of
a
Contracting
State.
Uniform
application
of
the
CISG
is
problematic
because
of
the
reluctance
of
courts
to
use
‘solutions
adopted
on
the
same
point
by
courts
in
other
countries’
resulting
in
inconsistent
decisions.
For
example,
in
a
case
involving
the
export
to
Germany
by
a
Swiss
company
of
New
Zealand
mussels
with
a
level
of
cadmium
in
excess
of
German
standards,
the
German
Supreme
Court
found
that
it
is
not
the
duty
of
the
seller
to
ensure
that
goods
meet
German
public
health
regulations.
This
contrasted
with
a
later
decision
in
which
an
Italian
cheese
exporter
failed
to
meet
French
packaging
regulations
and
the
French
court
decided
it
is
the
duty
of
the
seller
to
ensure
compliance
with
French
regulations.
3) Exclusion
o f
C ISG
Parties
to
a
contract
may
exclude
or
vary
the
application
of
the
CISG.49
As
international
commercial
sales
are
largely
governed
by
party
autonomy,
the
CISG
provides
basic
default
rules.
International
sales
law
does
not
only
live
within
the
CISG
(supplemented
to
a
certain
extent
by
domestic
law),
but
also
in
the
sales
contracts
themselves
which
have
either
excluded
the
CISG,
in
whole
or
in
part,
or
supplemented
its
rules
with
provisions
that
correspond
to
certain
problems
and
needs
encountered
in
practice.
Although
it
is
now
generally
accepted
in
western,
industrialized
countries
that
at
least
business
parties
are
free
to
choose
the
law
applicable
to
their
contract,
this
is
not
true
in
all
parts
of
the
world.
The
fear
of
giving
western
businesses
too
many
advantages
still
leads
many
developing
and
transition
countries
to
refuse
the
recognition
of
choice
of
law
clauses.
The
most
prominent
example
is
Brazil
where
the
validity
of
choice
of
law
clauses
is
highly
controversial.50
48
Filip
De
Ly,
Sources
Of
International
Sales
Law:
An
Eclectic
Model,
JOURNAL
OF
5)
F reedom
o f
f orm
Under
Article
11,
a
contract
of
sale
need
not
be
concluded
in
or
evidenced
by
writing
and
is
not
subject
to
any
other
requirement
as
to
form.
It
may
be
proved
by
any
means,
including
witnesses.
States
with
a
strict
written
requirement
exercised
their
ability
to
exclude
those
articles
relating
to
oral
contracts.
Specifically,
Argentina,
Belarus,
Chile,
China,
Hungary,
Latvia,
Lithuania,
Paraguay,
Russian
Federation
and
Ukraine
are
not
bound
by
Article
11.
Proving
Contract
Terms
Unlike
some
domestic
laws,
under
which
certain
agreements
must
be
in
writing
to
be
enforceable,
CISG
allows
verbal
contracts
or
modifications.
Additionally,
any
evidence
can
be
used
to
prove
the
parties'
intent,
even
if
it
changes
the
terms
of
a
written
contract.
Thus,
pre-‐contract
negotiation
materials,
such
as
proposals,
MOUs,
term
sheets
or
letters
of
intent,
can
be
used
as
evidence
to
show
what
you
intended,
even
if
the
final
contract
contains
different
terms.
parties.
It
is
also
practical
to
insert
a
provision
in
the
final
contract
stating
that
all
pre-‐contract
discussions
and
documents
are
superseded
and
extinguished
by
the
written
contract
executed
by
the
parties
which
cannot
be
modified
except
by
a
writing
signed
by
the
parties.51
An
example
of
such
a
clause
is
as
follows:
"None of the terms, conditions or provisions of this Agreement shall be held to
have been changed, waived, varied, modified or altered by any act or
knowledge of either party, their respective agents, servants or employees unless
done so in writing signed by both parties."
51
CISG
Article
29(2):
A
contract
in
writing
which
contains
a
provision
requiring
53 See, Barry Nicholas, The Vienna Convention on International Sales Law, 105
2)
A cceptance
A
statement
made
by
or
other
conduct
of
the
offeree
indicating
assent
to
an
offer
is
an
acceptance.
Silence
or
inactivity
does
not
in
itself
amount
to
acceptance.
The
general
rule,
is
that
acceptance
is
effective
when
it
reaches
the
offeror,
provided
that
it
does
so
within
the
time
he
has
fixed
or,
if
no
time
is
fixed,
within
a
reasonable
time
(Art.
18/2).
CISG
says
that
any
change
to
the
original
conditions
is
a
rejection
of
the
offer
–
it
is
a
counter-‐offer
–
unless
the
modified
terms
do
not
materially
alter
the
terms
of
the
offer.
Changes
to
price,
payment,
quality,
quantity,
delivery,
liability
of
the
parties
and
arbitration
conditions
may
all
materially
alter
the
terms
of
the
offer.
An
acceptance
may
be
withdrawn
if
the
withdrawal
reaches
the
offeror
before
or
at
the
same
time
as
the
acceptance
would
have
become
effective.
C)
SALE
O F
GOODS
(ARTICLES
25–88)
1) Fundamental
B reach 54
"Fundamental
breach"
is
a
central
concept
in
the
Convention's
system
of
remedies.
It
is
a
pre-‐requisite
of
avoidance
of
the
contract
by
either
party
and
54
This
part
is
taken
from,
Barry
Nicholas
also
of
the
buyer's
right
to
require
delivery
of
substitute
goods
in
case
of
non-‐
conformity.
And
it
is
also
important
in
the
rules
governing
risk.
Article
25
provides:
"A
breach
of
contract
committed
by
one
of
the
parties
is
fundamental
if
it
results
in
such
detriment
to
the
other
party
as
substantially
to
deprive
him
of
what
he
is
entitled
to
expect
under
the
contract,
unless
the
party
in
breach
did
not
foresee
and
reasonable
person
of
the
same
kind
in
the
same
circumstances
would
not
have
foreseen
such
a
result."
55
This
part
is
taken
from
Barry
Nicholas
3)
P assing
o f
r isk
National
laws
provide
for
the
passing
of
risk
in
domestic
sales
transactions.
Risk
may
pass
at
the
conclusion
of
the
contract
(as
it
does
under
Swiss
law),
or
with
the
transfer
of
property
(as
in
English
and
French
law),
or
upon
delivery
(as
in
German
law).
The
Convention
could
not
have
adopted
the
second
rule
because
the
Convention
is
not
concerned
with
the
effect
of
the
contract
on
the
property
of
the
goods.
The
first
rule
was
not
appropriate
because
international
sales
usually
are
concluded
at
a
distance
and
deal
with
goods
that
have
yet
to
be
manufactured.
Passing
of
risk
with
delivery,
is
workable
primarily
when
goods
are
actually
handed
over
by
the
seller
to
the
buyer.
International
sales,
however,
normally
involve
carriage
by
one
or
more
third
parties,
leaving
-‐-‐
for
a
period
of
time
-‐-‐
neither
the
seller
nor
the
buyer
in
physical
possession
of
the
goods.
Sellers
are
58
MADDE
225-‐
Ağır
kusurlu
olan
satıcı,
satılandaki
ayıbın
kendisine
süresinde
bildirilmemiş
olduğunu
ileri
sürerek
sorumluluktan
kısmen
de
olsa
kurtulamaz.
Satıcılığı
meslek
edinmiş
kişilerin
bilmesi
gereken
ayıplar
bakımından
da
aynı
hüküm
geçerlidir.
59Secretariat
Commentary,
http://www.cisg.law.pace.edu/cisg/text/secomm/secomm-‐39.html
anxious
to
transfer
the
risk
at
the
earliest
stage
of
the
transaction;
buyers
want
to
assume
the
risk
much
later.
The
Convention
needed
to
provide
balanced
rules
that
took
into
account
various
transactional
situations.
The
Convention
does
not
establish
a
general
rule;
rather,
it
distinguishes
between
different
transport
situations.
Where
the
goods
must
be
handed
over
to
a
carrier
at
a
particular
place,
the
risk
does
not
pass
to
the
buyer
until
the
goods
are
actually
handed
over
to
the
carrier
at
the
designated
place.
If
no
particular
place
was
contemplated,
the
risk
passes
to
the
buyer
when
the
goods
are
handed
over
to
the
first
carrier.
Where
the
goods
are
sold
while
they
are
in
transit,
the
risk
normally
passes,
with
some
exceptions,
to
the
buyer
at
the
time
the
contract
is
concluded.
In
circumstances
in
which
the
buyer
is
to
take
the
goods
from
the
third
party
-‐-‐
for
example,
at
a
warehouse
-‐-‐
the
risk
passes
when
delivery
is
due
and
the
buyer
is
aware
that
the
goods
are
at
his
disposal.
In
all
other
circumstances,
i.e.,
when
the
contract
does
not
involve
carriage
of
goods,
the
risk
passes
when
the
goods
are
placed
at
the
buyer's
disposal.
On
the
whole,
the
Convention
imposes
the
risk
of
loss
on
the
party
in
the
better
position
to
take
care
of
or
insure
the
goods.
In
practice
most
contracts
define
the
‘seller's
delivery
obligations
quite
precisely
by
adopting
an
established
shipment
term
such
as
FOB
and
CIF.
New
Turkish
Code
of
Obligations
has
adopted
a
similar
position
with
regard
to
passing
of
risk
in
art.
208.60
c) Reduction
o f
p rice
In
case
of
non-‐conformity
of
the
goods,
buyer
is
entitled
to
demand
the
reduction
of
the
price
"in
the
same
proportion
as
the
value
that
the
goods
actually
delivered
had
at
the
time
of
delivery
bears
to
the
value
that
conforming
goods
would
have
had
at
that
time
When the buyer cannot resort to the remedy of damages because the lack of
conformity is "due to an impediment beyond his control" (Article 79). In this situation
the restitutionary remedy of reduction of price protects the buyer.
d)
A voidance
o f
t he
c ontract
A
party
may
declare
the
contract
avoided;
(a)
if
a
failure
by
the
other
party
to
perform
any
of
his
obligations
amounts
to
a
fundamental
breach,
OR
(b)
if
the
seller
fails
to
deliver
or
the
buyer
to
pay
the
price
or
take
delivery
of
the
goods
within
a
time
period
fixed
by
the
other
party.
The
party
avoiding
the
contract
must
do
so
within
a
reasonable
time.
Avoidance
of
the
contract
releases
both
parties
from
their
obligations,
subject
to
any
damages
which
may
be
due.
A
party
who
has
performed
in
whole
or
in
part
may
claim
restitution
of
anything
supplied
or
paid.
e)
P artial
p erformance
Art.
51
and
52
deal
with
three
situations:
(a)
partial
delivery
of
the
goods,
(b)
delivery
of
all
the
goods,
but
some
is
non-‐conforming.
In
case
of
(a)
or
(b),
Article
51
provides
that
the
remedies
discussed
above
apply
in
respect
of
the
undelivered
or
non-‐conforming
part.
Assume,
for
example,
that
the
contract
is
for
100
tons
of
wheat
and
seller
delivers
100,
but
10
are
seriously
defective.
If
the
defectiveness
of
the
10
tons
constitutes
a
fundamental
breach
of
the
entire
contract
(i.e.
if
the
delivery
of
only
90
tons
of
conforming
wheat
substantially
deprives
buyer
of
what
he
is
entitled
to
expect
under
the
contract),
buyer
can
avoid
the
contract
(and
claim
damages).
On
the
more
probable
assumption,
however,
that
the
defectiveness
of
the
10
tons
does
not
constitute
a
fundamental
breach
of
the
entire
contract,
buyer
may
either
(i)
require
seller
to
deliver
substitute
goods
for
the
10
tons,
or
(ii)
accept
the
full
100
tons
and
reduce
the
price
in
respect
of
the
10
tons,
or
(iii)
"avoid
the
contract"
in
respect
of
the
10
tons.
g)
D amages
Article
74
states
the
general
rule
in
terms
of
foreseeability:
"Damages
for
breach
of
contract
by
one
party
consist
of
a
sum
equal
to
the
loss,
including
loss
of
profit,
suffered
by
the
other
party
as
a
consequence
of
the
breach.
Such
damages
may
not
exceed
the
loss
which
the
party
in
breach
foresaw
or
ought
to
have
foreseen
at
the
time
of
the
conclusion
of
the
contract,
in
the
light
of
the
facts
and
matters
of
which
he
then
knew
or
ought
to
have
known,
as
a
possible
consequence
of
the
breach
of
contract."
Article
75
applies
where
the
contract
has
been
avoided
by
either
party
and
the
aggrieved
party
has
made
a
substitute
transaction
(either
a
"cover"
purchase
of
replacement
goods
by
the
buyer
or
a
resale
by
the
seller).
In
such
cases
party
can
recover
the
difference
between
the
contract
price
and
the
price
in
the
substitute
transaction,
provided
that
the
transaction
was
made
"in
a
reasonable
manner
and
within
a
reasonable
time
after
avoidance."
For
if
the
seller
re-‐sells
at
less
than
the
market
price
(or
the
buyer
makes
a
cover
purchase
at
more
than
the
market
price),
he
might
have
difficulty
in
showing
that
he
acted
reasonably.
Art.
76
provides
that
if
the
contract
is
avoided
without
a
substitute
transaction
but
there
is
a
current
price
for
the
goods,
the
party
claiming
damages
may,
if
he
has
not
made
a
purchase
or
resale
under
article
75,
recover
the
difference
between
the
price
fixed
by
the
contract
and
the
current
price
at
the
time
of
avoidance
as
well
as
any
further
damages
recoverable
under
article
74.
In
all
the
cases
governed
by
Articles
75
and
76
further
damages
may
of
course
be
recovered
under
Article
74.
Under
the
new
Turkish
Code
of
Obligations,
the
default
of
the
seller
is
regulated
with
reference
to
general
principles
with
regard
to
the
nonperformance
of
contracts.
Art.
212
further
states
that,
in
a
commercial
sale
under
which
certain
date
is
fixed
for
delivery;
the
buyer,
if
the
seller
defaults,
is
deemed
to
have
chosen
the
option
to
avoid
the
contract
and
to
demand
damages
for
non-‐
performance.
The
buyer
should
notify
the
buyer
if
he
is
willing
to
accept
late
performance.
Seller
should
compensate
the
loss
sustained
by
the
buyer
either
due
to
late
performance
or
due
to
no
performance
at
all.
Substitute
transactions
either
as
a
actual
purchase
or
a
hypothetical
one
with
reference
to
current
market
price,
are
regulated
in
accordance
with
art.
75
and
76
of
CISG,
respectively.
h)
M itigation
Article
77
provides
for
the
aggrieved
party's
duty
to
mitigate
his
loss
and
reads
as
:
A
party
who
relies
on
a
breach
of
contract
must
take
such
measures
as
are
reasonable
in
the
circumstances
to
mitigate
the
loss,
including
loss
of
profit,
resulting
from
the
breach.
If
he
fails
to
take
such
measures,
the
party
in
breach
may
claim
a
reduction
in
the
damages
in
the
amount
by
which
the
loss
should
have
been
mitigated.
i)
A nticipatory
b reach
An
express
repudiation
by
the
defaulting
party
is
not
necessary.
It
is
sufficient
that
it
is
"clear"
that
he
will
default.
The
prospective
default
must,
however,
be
such
as
to
amount
to
a
fundamental
breach
in
order
to
entitle
the
aggrieved
party
to
avoid
the
contract.
Art.
72
provides
that
:
(1)
If
prior
to
the
date
for
performance
of
the
contract
it
is
clear
that
one
of
the
parties
will
commit
a
fundamental
breach
of
contract,
the
other
party
may
declare
the
contract
avoided.
(2)
If
time
allows,
the
party
intending
to
declare
the
contract
avoided
must
give
reasonable
notice
to
the
other
party
in
order
to
permit
him
to
provide
adequate
assurance
of
his
performance.
(3)
The
requirements
of
the
preceding
paragraph
do
not
apply
if
the
other
party
has
declared
that
he
will
not
perform
his
obligations.
j)
I mpossibility
A
party
is
not
liable
for
a
failure
to
perform
any
of
his
obligations
if
he
proves
that
the
failure
was
due
to
an
impediment
beyond
his
control
and
he
could
not
reasonable
be
expected
to
have
taken
the
impediment
into
account
at
the
time
of
the
conclusion
of
the
contract
or
to
have
avoided
or
overcome
it
or
its
consequences.
III) BASIC
ELEMENTS
OF
AN
INTERNATIONAL
SALES
CONTRACT
A) PREAMBLE
&
RECITAL
The
preamble
of
a
contract
is
a
kind
of
explanation
for
the
contract.
It
is
drawn
up
once
by
the
contracting
parties.
Each
phrase
is
introduced
by
"Considering
that"
or
"Whereas".
The
preamble
is
concluded
by
the
phrase
"Now
therefore"
which
introduces
the
contract
itself.
The
parties
which
have
drawn
up
a
preamble
may
wish
to
be
reminded
of
the
background
of
the
contract,
which
conditions
their
obligation
:
the
existence
of
closely
related
contracts,
the
particular
competence
of
a
party,
the
objectives
which
they
persue,
or
also
the
circumstances
which
prevail
at
the
moment
of
conclusion.
Finally,
their
willingness
can
be
to
summarise
the
contract
and
it
is
then
simply
addressed
to
the
third
party
or
management
of
the
company.
B)
THE
DELIVERY
M ETHOD-‐
INCOTERMS
The
delivery
method
following
the
sale
should
be
specified
in
accordance
with
the
general
commercial
customs.
(f.e.
FOB-‐Antalya).
The
term
INCOTERMs
(international
commerce
terms)
means
a
series
of
international
sales
terms
published
by
ICC
(international
chamber
of
commerce)
and
widely
used
by
in
international
commercial
sales.
Scope
of
this
is
limited
to
matters
relating
to
the
rights
and
obligations
of
the
parties
with
respect
to
the
delivery
of
the
goods
sold.
They
are
used
to
divide
transaction
costs
and
responsibilities
between
buyer
and
seller
and
reflect
state-‐of-‐the-‐art
transportation
practices.
They
closely
correspond
to
the
U.N.
Convention
on
Contracts
for
the
International
Sale
of
Goods.
These
INCOTERMS
are
applicable
if
only
there
is
a
reference
to
them
in
the
contract
articles.
The
INCOTERMS
are
divided
into
2
main
groups:
ALL
MODES
OF
TRANSPORTATION:
EXW:
Ex
Works
FCA:
Free
Carrier
CPT:
Carriage
Paid
To
CIP:
Carriage
and
Insurance
Paid
DAT:
Delivered
at
Terminal
DAP:
Delievered
at
Place
DDP:
Delievered
Duty
Paid
SEA
AND
INLAND
WATERWAY
TRANSPORTATION:
FAS:
Free
Alongside
Ship
FOB:
Free
On
Board
CFR:
Cost
and
Freight
CIF:
Cost,
Insurance,
and
Freight
62
ALL
MODES
OF
TRANSPORTATION:
1) EXW
( Ex
W orks)
The
seller
makes
the
goods
available
at
his
premises.
The
buyer
is
responsible
for
all
charges.
This
trade
term
places
the
greatest
responsibility
on
the
buyer
and
minimum
obligations
on
the
seller.
The
Ex
Works
term
is
often
used
when
making
an
initial
quotation
for
the
sale
of
goods
without
any
costs
included.
EXW
means
that
a
seller
has
the
goods
ready
for
collection
at
his
premises
(Works,
factory,
warehouse,
plant)
on
the
date
agreed
upon.
The
buyer
pays
all
transportation
costs
and
also
bears
the
risks
for
bringing
the
goods
to
their
final
destination.
62
Turkish
parts
are
taken
from,
İç
ve
Dış
Ticarete
ilişkin
Ticari
Terimlerin
2)
F CA
( Free
C arrier)
The
seller
hands
over
the
goods,
cleared
for
export,
into
the
custody
of
the
first
carrier
(named
by
the
buyer)
at
the
named
place.
This
term
is
suitable
for
all
modes
of
transport,
including
carriage
by
air,
rail,
road,
and
containerised
/
multi-‐modal
sea
transport.
3)
C PT
( Carriage
P aid
t o)
CPT:
The
general/containerised/multimodal
equivalent
of
CFR.
The
seller
pays
for
carriage
to
the
named
point
of
destination,
but
risk
passes
when
the
goods
are
handed
over
to
the
first
carrier.
4)
C IP
( Carriage
a nd
I nsurance
P ay
t o)
CIP:
The
containerised
transport/multimodal
equivalent
of
CIF.
Seller
pays
for
carriage
and
insurance
to
the
named
destination
point,
but
risk
passes
when
the
goods
are
handed
over
to
the
first
carrier.
5)
D AT
( Delivered
a t
T erminal)
6)
D AP
( Delivered
a t
P lace)
7)
D DP
( Delivered
D uty
P aid).
SEA
AND
INLAND
WATERWAY
TRANSPORTATION:
IV) ICC
MODEL
SALES
CONTRACT
ICC
has
prepared
a
Model
International
Sale
Contract
(the
"Model
Contract").
for
"manufactured
goods
intended
for
resale".
Thus
it
excludes
those
large
vital
goods
produced
for
single
users
(which
have
a
host
of
additional
complexities),
and
such
goods
as
commodities
which
have
widely
fluctuating
values.
It
is
also
not
best
suited
for
continuing
supply
arrangements.
The
Model
Contract
is
divided
into
two
parts.
The
first,
Part
A,
is
essentially
a
checklist
of
specific
conditions
to
an
international
sale;
the
second,
Part
B,
is
a
list
of
General
Conditions
divided
into
14
articles.
ICC MODEL INTERNATIONAL SALE CONTRACT
A. Specific Conditions
These Specific Conditions have been prepared in order to permit the parties to agree
the particular terms of their sale contract by completing the spaces left open or
choosing (as the case may be) between the alternatives provided in this document.
Obviously this does not prevent the parties from agreeing other terms or further
details in box A-16 or in one or more annexes.
___________________________________
___________________________________
Currency: ______________________
amount in numbers:______________ amount in letters: _____________________
Indicate here the date or period (e.g. week or month) at which or within which the
Seller must perform his delivery obligations according to clause A.4 of the respective
Incoterm (see Introduction, �� 6)
________________________________________________________
________________________________________________________
��
A-5 INSPECTION OF THE GOODS BY BUYER (ART. 3)
�� YES �� NO
Indicate here documents to be provided by Seller. Parties are advised to check the
Incoterm they have selected under A-3 of these Specific Conditions. (As concerns
transport documents, see also Introduction, �� 8)
Insurance:
Under
Incoterms
CIF
the
seller
is
responsible
for
purchasing
only
"free
of
particular
average"
insurance,
which
has
the
most
limited
type
of
recovery
and
is
commensurately
inexpensive.
Most
buyers
on
the
other
hand
would
prefer
the
goods
to
be
insured
on
the
basis
of
a
"with
average",
"all
risks",
including
"war
risks"
policy.63
63
James
M.
Klotz,
Critical
Review
of
The
ICC
Model
International
Sale
Contract,
If the goods are not delivered for any reason whatsoever (including force
majeure) by (date) _______ the Buyer will be entitled to CANCEL THE CONTRACT
IMMEDIATELY BY NOTIFICATION TO THE SELLER
Seller��s liability for damages arising from lack of conformity of the goods
shall be:
�� limited to proven loss (including consequential loss, loss of profit, etc.) not
exceeding _____ % of the contract price; or:
�� as follows (specify):
64
ibid.
65
ibid.
_____________________________________________________________
(ART. 11.6)
The price abatement for retained non-conforming goods shall not exceed:
Any action for non-conformity of the goods (as defined in article 11.8) must be taken
by the Buyer not later than __________ from the date of arrival of the goods at
destination
(a) This sales contract is governed by the domestic law of __________ (country)
To be completed if parties wish to choose a law other than that of the seller for
questions not covered by CISG
(b) Any questions not covered by CISG will be governed by the law of
____________ (country)
The two solutions hereunder (arbitration or litigation before ordinary courts) are
alternatives: parties cannot choose both of them. If no choice is made, ICC
arbitration will apply, according to art. 14
�� ARBITRATION �� LITIGATION
(ordinary courts)
�� ICC (according to art. 14.1) In case of dispute the
courts of
Place of arbitration _________ _________________
(place)
�� Other ___________________ (specify) shall have jurisdiction.
It
is
important
to
indicate
whether
the
selected
jurisdiction
is
to
be
exclusive
or
not.
In
an
international
sale,
if
litigation
is
clearly
chosen
as
the
dispute
resolution
mechanism,
giving
jurisdiction
to
one
party's
local
court,
but
not
exclusive
jurisdiction,
may
not
fulfill
the
needs
of
the
parties.
A-16 OTHER
_______________________________
________________________________
The present contract of sale will be governed by these Specific Conditions (to the
extent that the relevant boxes have been completed) and by the ICC General
Conditions of Sale (Manufactured Goods Intended for Resale) which constitute part
B of this document.
SELLER BUYER
(signature) (signature)
___________________________ _________________________
__
place __________ date ________ place __________ date
________
B. General Conditions
Art. 1 GENERAL
1.1 These General Conditions are intended to be applied together with the Specific
Conditions (part A) of the International Sale Contract (Manufactured Goods Intended
for Resale), but they may also be incorporated on their own into any sale contract.
Where these General Conditions (Part B) are used independently of the said Specific
Conditions (Part A), any reference in Part B to Part A will be interpreted as a
reference to any relevant specific conditions agreed by the parties. In case of
contradiction between these General Conditions and any specific conditions agreed
upon between the parties, the specific conditions shall prevail.
1.2 Any questions relating to this Contract which are not expressly or implicitly settled
by the provisions contained in the Contract itself (i.e. these General Conditions and
any specific conditions agreed upon by the parties) shall be governed:
B. to the extent that such questions are not covered by CISG, by reference to the
law of the country where the Seller has his place of business.
1.3 Any reference made to trade terms (such as EXW, FCA, etc.) is deemed to be
made to the relevant term of Incoterms published by the International Chamber of
Commerce
2.1 It is agreed that any information relating to the goods and their use, such as
weights, dimensions, capacities, prices, colours and other data contained in
catalogues, prospectuses, circulars, advertisements, illustrations, price-lists of the
Seller, shall not take effect as terms of the Contract unless expressly referred to in
the Contract.
2.2 Unless otherwise agreed, the Buyer does not acquire any property rights in
software, drawings, etc. which may have been made available to him. The Seller also
remains the exclusive owner of any intellectual or industrial property rights relating to
the goods.
If the parties have agreed that the Buyer is entitled to inspect the goods before
shipment, the Seller must notify the Buyer within a reasonable time before the
shipment that the goods are ready for inspection at the agreed place.
ART. 4 PRICE
4.1 If no price has been agreed, the Seller’’s current list price at the time of the
conclusion of the Contract shall apply. In the absence of such a current list price, the
price generally charged for such goods at the time of the conclusion of the Contract
shall apply.
4.2 Unless otherwise agreed in writing, the price does not include VAT, and is not
subject to price adjustment.
4.3 The price indicated under A-2 (contract price) includes any costs which are at the
Seller’s charge according to this Contract. However, should the Seller bear any costs
which, according to this Contract, are for the Buyer’s account (e.g. for transportation
or insurance under EXW or FCA), such sums shall not be considered as having been
included in the price under A-2 and shall be reimbursed by the Buyer.
ART. 5 PAYMENT CONDITIONS
5.1 Unless otherwise agreed in writing, or implied from a prior course of dealing
between the parties, payment of the price and of any other sums due by the Buyer to
the Seller shall be on open account and time of payment shall be 30 days from the
date of invoice. The amounts due shall be transferred, unless otherwise agreed, by
teletransmission to the Seller’s bank in the Seller’s country for the account of the
Seller and the Buyer shall be deemed to have performed his payment obligations
when the respective sums due have been received by the Seller’s bank in
immediately available funds.
In
open
account,
payment
is
made
by
the
buyer
in
determined
time
after
the
seller
ships
the
goods.
“Purchase
on
open
account
means
that
the
buyer
agrees
to
pay
for
goods
ordered
within
a
designated
time
after
their
shipment.
Common
terms
are
30,
60,
or
90
days.
In
open
account,
parties
don’t
necessarily
need
to
use
banks
and
billing
can
be
done
by
the
seller
in
firsthand.
In
this
method,
conversely
to
cash
in
advance,
the
seller
takes
the
greatest
risk
and
he
is
totally
allocated
to
risk,
whereas
the
buyer
is
risk
free.
Payment
is
solely
based
on
the
buyer’s
creditworthiness
and
commitment
to
pay
5.2 If the parties have agreed on payment in advance, without further indication, it
will be assumed that such advance payment, unless otherwise agreed, refers to the
full price, and that the advance payment must be received by the Seller’s bank in
immediately available funds at least 30 days before the agreed date of delivery or the
earliest date within the agreed delivery period. If advance payment has been agreed
only for a part of the contract price, the payment conditions of the remaining amount
will be determined according to the rules set forth in this article.
Cash
in
advance
is
the
frequently
used
and
the
easiest
international
payment
method.
The
definition
and
procedure
of
cash
in
advance,
which
is
also
known
as
“Payment
in
Advance”,
is:
“The
buyer
simply
prepays
the
seller
prior
to
shipment
of
the
goods.
This
term
of
payment
requires
that
the
buyer
have
a
high
level
of
confidence
in
the
ability
and
willingness
of
the
seller
to
deliver
the
goods
as
ordered.
This
method
protects
sellers
and
sellers
undertake
no
risk.
On
the
other
hand,
in
cash
in
advance
risk
is
totally
carried
by
buyers.
5.3 If the parties have agreed on payment by documentary credit, then, unless
otherwise agreed, the Buyer must arrange for a documentary credit in favour of the
Seller to be issued by a reputable bank, subject to the Uniform Customs and Practice
for Documentary Credits published by the International Chamber of Commerce, and
to be notified at least 30 days before the agreed date of delivery or at least 30 days
before the earliest date within the agreed delivery period. Unless otherwise agreed,
the documentary credit shall be payable at sight and allow partial shipments and
transhipments.
In
form,
a
letter
of
credit
is
nothing
more
than
a
letter
from
a
financial
institution
promising
to
pay
a
stated
sum
of
money
upon
the
receipt
of
specified
documents.
The
basic
concept
is
that
the
prospective
payor
goes
to
a
bank
and
asks
it
to
issue
a
letter
of
credit
to
the
prospective
payee.
The
L/C
is
a
guarantee,
given
by
the
buyer's
bank,
that
they
will
pay
for
the
goods
exported,
provided
that
the
exporter
can
provide
a
given
set
of
documents
in
accordance
with
clauses
specified
in
the
L/C
and
in
a
timely
manner.
In
letter
of
credit
risk
is
evenly
shared
and
carried
by
the
seller
and
the
buyer.
5.4 If the parties have agreed on payment by documentary collection, then, unless
otherwise agreed, documents will be tendered against payment (D/P) and the tender
will in any case be subject to the Uniform Rules for Collections published by the
International Chamber of Commerce.
A documentary collection is an order by the seller to his bank to collect payment from the buyer in
exchange for the transfer of documents that enable the holder to take possession of the goods A set of
documents containing a Bill of Lading would normally allow the holder to take possession of the
goods. Bill of exchange is a negotiable instrument that orders payor to make the deficient mount of
payment to payee. On the other hand, A bill of lading is a document issued by a carrier to a shipper,
signed by the captain, agent, or owner of a vessel, furnishing written evidence regarding receipt of the
goods (cargo), the conditions on which transportation is made (contract of carriage), and the
engagement to deliver goods at the prescribed port of destination to the lawful holder of the bill of
lading. Under D/P terms, the seller, through a bank acting as an agent, is able to retain control of the
goods until the buyer pays.
5.5 To the extent that the parties have agreed that payment is to be backed by a
bank guarantee, the Buyer is to provide, at least 30 days before the agreed date of
delivery or at least 30 days before the earliest date within the agreed delivery period,
a first demand bank guarantee subject to the Uniform Rules for Demand Guarantees
published by the International Chamber of Commerce, or a standby letter of credit
subject either to such Rules or to the Uniform Customs and Practice for
Documentary Credits published by the International Chamber of Commerce, in either
case issued by a reputable bank.
6.1 If a party does not pay a sum of money when it falls due the other party is entitled
to interest upon that sum from the time when payment is due to the time of payment.
6.2 Unless otherwise agreed, the rate of interest shall be 2% above the average
bank short-term lending rate to prime borrowers prevailing for the currency of
payment at the place of payment, or where no such rate exists at that place, then the
same rate in the State of the currency of payment. In the absence of such a rate at
either place the rate of interest shall be the appropriate rate fixed by the law of the
State of the currency of payment.
If the parties have validly agreed on retention of title, the goods shall remain the
property of the Seller until the complete payment of the price, or as otherwise
agreed.
ART. 9 DOCUMENTS
Unless otherwise agreed, the Seller must provide the documents (if any) indicated in
the applicable Incoterm or, if no Incoterm is applicable, according to any previous
course of dealing.
10.1 When there is delay in delivery of any goods, the Buyer is entitled to claim
liquidated damages equal to 0.5% or such other percentage as may be agreed of the
price of those goods for each complete week of delay, provided the Buyer notifies the
Seller of the delay. Where the Buyer so notifies the Seller within 15 days from the
agreed date of delivery, damages will run from the agreed date of delivery or from
the last day within the agreed period of delivery. Where the Buyer so notifies the
Seller after 15 days of the agreed date of delivery, damages will run from the date of
the notice. Liquidated damages for delay shall not exceed 5% of the price of the
delayed goods or such other maximum amount as may be agreed.
The
subject
of
direct,
indirect,
special
and
consequential
damages
is
ambiguous.
Such
damages,
at
least
to
certain
extent,
are
of
the
kind
that
the
seller
would
ordinarily
prefer
to
contract
out
of.
Below
are
some
sample
clauses
to
this
effect
:
“In no event shall the Seller be responsible for any direct, indirect, special or
consequential damages, including loss of anticipated profits, loss of time or any
other losses incurred by the Buyer in connection with the purchase, installation
or operation or failure of the goods."
10.2 If the parties have agreed upon a cancellation date in Box A-9, the Buyer may
terminate the Contract by notification to the Seller as regards goods which have not
been delivered by such cancellation date for any reason whatsoever (including a
force majeure event).
10.3 When article 10.2 does not apply and the Seller has not delivered the goods by
the date on which the Buyer has become entitled to the maximum amount of
liquidated damages under article 10.1, the Buyer may give notice in writing to
terminate the Contract as regards such goods, if they have not been delivered to the
Buyer within 5 days of receipt of such notice by the Seller.
If
the
parties
have
not
agreed
to
a
"drop
dead"
date,
the
buyer
can
terminate
the
agreement
after
the
expiration
of
a
10
week
period
-‐-‐
a
very
long
period
of
time.
A
two
and
a
half
month
delay
in
delivery
of
manufactured
goods
for
resale
is
a
very
long
delay
-‐-‐
much
longer
than
a
buyer
would
ordinarily
agree
to.66
10.4 In case of termination of the Contract under article 10.2 or 10.3 then in addition
to any amount paid or payable under article 10.1, the Buyer is entitled to claim
damages for any additional loss not exceeding 10% of the price of the non-delivered
goods.
10.5 The remedies under this article are exclusive of any other remedy for delay in
delivery or non-delivery.
11.1 The Buyer shall examine the goods as soon as possible after their arrival at
destination and shall notify the Seller in writing of any lack of conformity of the goods
within 15 days from the date when the Buyer discovers or ought to have discovered
the lack of conformity. In any case the Buyer shall have no remedy for lack of
conformity if he fails to notify the Seller thereof within 12 months from the date of
arrival of the goods at the agreed destination.
The
wording
does
not
match
the
language
of
the
CISG
Article
39/167
which
requires
the
buyer
to
notify
the
seller
of
the
"nature
of
the
non-‐conformity".
Therefore
it
would
be
for
sake
of
clarity
to
draft
the
clause
so
as
to
make
the
notification
including
necessary
details.
In
2006
a
German
Court
ruled
that
"1. If the buyer accepts the goods without immediate notice he has to prove
their lack of conformity regardless of whether the time span of Art. 39 has
already elapsed. When taking over the goods under FOB terms that point in
time is decisive.
66
ibid.
67 CISG, Article 39(1): The buyer loses the right to rely on a lack of conformity of
the
goods
if
he
does
not
give
notice
to
the
seller
specifying
the
nature
of
the
lack
of
conformity
within
a
reasonable
time
after
he
has
discovered
it
or
ought
to
have
discovered
it.
"2. The buyer may retain the right to rely on the lack of conformity only by
giving a notice which identifies the non-conformity and shows intention to
object in accordance with Art. 39(1) CISG. In this respect, it is insufficient
if the unconformity is only mentioned incidentally amongst other such
notices and it is stated therein that this specific unconformity is no longer of
importance."
GERMANY: Oberlandesgericht Karlsruhe 8 February 200668
11.2 Goods will be deemed to conform to the Contract despite minor discrepancies
which are usual in the particular trade or through course of dealing between the
parties but the Buyer will be entitled to any abatement of the price usual in the trade
or through course of dealing for such discrepancies.
11.3 Where goods are non-conforming (and provided the Buyer, having given notice
of the lack of conformity in compliance with article 11.1, does not elect in the notice
to retain them), the Seller shall at his option:
(a) replace the goods with conforming goods, without any additional expense to the
Buyer, or
(b) repair the goods, without any additional expense to the Buyer, or
(c) reimburse to the Buyer the price paid for the non-conforming goods and
thereby terminate the Contract as regards those goods.
The Buyer will be entitled to liquidated damages as quantified under article 10.1 for
each complete week of delay between the date of notification of the non-conformity
according to article 11.1 and the supply of substitute goods under article 11.3(a) or
repair under article 11.3(b) above. Such damages may be accumulated with
damages (if any) payable under article 10.1, but can in no case exceed in the
aggregate 5% of the price of those goods.
The
Model
Contract
does
not
set
a
time
limit
identify
for
the
Buyer
to
elect
the
optional
remedies.
However
since
the
liquidated
damages
are
limited
to
%5
of
the
price,
buyer
has
a
small
monetary
incentive
to
delay
making
its
"election".
11.4 If the Seller has failed to perform his duties under article 11.3 by the date on
which the Buyer becomes entitled to the maximum amount of liquidated damages
according to that article, the Buyer may give notice in writing to terminate the
Contract as regards the non-conforming goods unless the supply of replacement
goods or the repair is effected within 5 days of receipt of such notice by the Seller.
Article
B-‐11.4,
the
buyer
has
to
notify
the
seller
at
the
expiry
of
this
10
week
period
of
its
intention
to
terminate
the
agreement,
in
which
case
the
seller
gets
68
http://cisgw3.law.pace.edu/cases/060208g1.html
an
additional
five
days
to
perform.
These
provisions
are
not
typical
of
non-‐
conformity
provisions
that
get
negotiated
in
the
real-‐life
international
sale
of
manufactured
goods.
11.5 Where the Contract is terminated under article 11.3(c) or article 11.4, then in
addition to any amount paid or payable under article 11.3 as reimbursement of the
price and damages for any delay, the Buyer is entitled to damages for any additional
loss not exceeding 10% of the price of the non-conforming goods.
11.6 Where the Buyer elects to retain non-conforming goods, he shall be entitled to a
sum equal to the difference between the value of the goods at the agreed place of
destination if they had conformed with the Contract and their value at the same place
as delivered, such sum not to exceed 15% of the price of those goods.
11.7 Unless otherwise agreed in writing, the remedies under this article 11 are
exclusive of any other remedy for non-conformity.
11.8 Unless otherwise agreed in writing, no action for lack of conformity can be taken
by the Buyer, whether before judicial or arbitral tribunals, after 2 years from the date
of arrival of the goods. It is expressly agreed that after the expiry of such term, the
Buyer will not plead non-conformity of the goods, or make a counter-claim thereon, in
defence to any action taken by the Seller against the Buyer for non-performance of
this Contract.
12.1 The Buyer shall promptly inform the Seller of any claim made against the Buyer
by his customers or third parties concerning the goods delivered or intellectual
property rights related thereto.
12.2 The Seller will promptly inform the Buyer of any claim which may involve the
product liability of the Buyer.
It
will
not
be
surprising
that
sellers
would
limit
this
obligation
significantly.
ART. 13 FORCE MAJEURE
13.1 A party is not liable for a failure to perform any of his obligations in so far as he
proves:
(a) that the failure was due to an impediment beyond his control, and
(b) that he could not reasonably be expected to have taken into account the
impediment and its effects upon his ability to perform at the time of the
conclusion of the Contract, and
(c) that he could not reasonably have avoided or overcome it or its effects.
13.2 A party seeking relief shall, as soon as practicable after the impediment and its
effects upon his ability to perform become known to him, give notice to the other
party of such impediment and its effects on his ability to perform. Notice shall also be
given when the ground of relief ceases.
Failure to give either notice makes the party thus failing liable in damages for loss
which otherwise could have been avoided.
13.3 Without prejudice to article 10.2, a ground of relief under this clause relieves the
party failing to perform from liability in damages, from penalties and other contractual
sanctions, except from the duty to pay interest on money owing as long as and to the
extent that the ground subsists.
13.4 If the grounds of relief subsist for more than six months, either party shall be
entitled to terminate the Contract with notice.
Sample Clauses
“A party is not liable for failure to perform the party's obligations if such
failure is as a result of Acts of God (including fire, flood, earthquake, storm,
hurricane or other natural disaster), war, invasion, act of foreign enemies,
hostilities (regardless of whether war is declared), civil war, rebellion,
revolution, insurrection, military or usurped power or confiscation, terrorist
activities, nationalisation, government sanction, blockage, embargo, labor
dispute, strike, lockout or interruption or failure of electricity or telephone
service. No party is entitled to terminate this Agreement under Clause 19
(Termination) in such circumstances.
“If a party asserts Force Majeure as an excuse for failure to perform the party's
obligation, then the nonperforming party must prove that the party took
reasonable steps to minimize delay or damages caused by foreseeable events,
that the party substantially fulfilled all non-excused obligations, and that the
other party was timely notified of the likelihood or actual occurrence of an
event described in Clause 18 (Force Majeure).” OR
“The obligations of each of the Parties hereunder, other than the obligation to
make payments of money, shall be suspended during a period of Force
Majeure and the term of the relevant period or phase of this Agreement shall
be extended for a time equivalent to the period of Force Majeure situation. In
the event of Force Majeure the Party affected thereby shall give notice thereof
to the other Party as soon as reasonably practical stating the starting date and
the extent of such suspension of obligations and the cause thereof. A Party
whose obligations have been suspended as aforesaid shall resume the
performance of such obligations as soon as reasonably practical after the
removal of the Force Majeure and shall notify the other Party accordingly.”
I.
Genel
olarak
MADDE
136-‐
Borcun
ifası
borçlunun
sorumlu
tutulamayacağı
sebeplerle
imkânsızlaşırsa,
borç
sona
erer.
Karşılıklı
borç
yükleyen
sözleşmelerde
imkânsızlık
sebebiyle
borçtan
kurtulan
borçlu,
karşı
taraftan
almış
olduğu
edimi
sebepsiz
zenginleşme
hükümleri
uyarınca
geri
vermekle
yükümlü
olup,
henüz
kendisine
ifa
edilmemiş
olan
edimi
isteme
hakkını
kaybeder.
Kanun
veya
sözleşmeyle
borcun
ifasından
önce
doğan
hasarın
alacaklıya
yükletilmiş
olduğu
durumlar,
bu
hükmün
dışındadır.
Borçlu
ifanın
imkânsızlaştığını
alacaklıya
gecikmeksizin
bildirmez
ve
zararın
artmaması
için
gerekli
önlemleri
almazsa,
bundan
doğan
zararları
gidermekle
yükümlüdür.
Hardship
clause
is
a
clause
in
a
contract
that
is
intended
to
cover
cases
in
which
unforeseen
events
occur
that
fundamentally
alter
the
equilibrium
of
a
contract
resulting
in
an
excessive
burden
being
placed
on
one
of
the
parties
involved.
(also
called
Changes
in
circumstances,
unforeseen
events,
termination
clause,
exoneration
clause.)
Sample Clauses
14.1 Unless otherwise agreed in writing, all disputes arising in connection with the
present Contract shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said Rules.
14.2 An arbitration clause does not prevent any party from requesting interim or
conservatory measures from the courts.
1)
F orm
o f
n otification
Model
Contract
refers
to
“notification”
in
various
articles,
however
the
there
is
no
clarity
with
regard
to
the
form
of
the
notice.
In
commercial
transactions
it
is
not
rare
that
parties
allege
not
to
have
received
notification
properly,
in
particularly,
where
notice
is
of
serious
legal
consequence.
Therefore
most
of
the
times
sales
contracts
provide
detailed
provisions
as
to
how
to
serve
the
notification.
Article
27,
the
sender
may
rely
on
notice
if
the
notice
is
given
by
"means
appropriate
in
the
circumstances,
even
though
there
is
a
delay
or
error
in
the
transmission
of
the
communication".
For
example,
a
fax
which
is
sent
but
is
not
received.
A
well-‐drafted
notice
clause
will
avoid
this
problem.70
Every notice to be given under this Agreement (Contract) shall be in writing
and either delivered by hand or sent by facsimile or by registered
[post/airmail]. The address of each party for the service of notices shall be as
set out in this Agreement (Contract) (unless or until that address is changed by
notice given under this clause).
A written notice shall be delivered by hand or sent by pre-paid first class post
or registered post. A correctly addressed notice sent by pre-paid first class post
shall be deemed to have been delivered at the time at which it would have
been delivered in the normal course of the post.
2)
O ther
70
James
M.
Klotz
There
are
numerous
other
clauses
missing
from
the
Model
Contract.
These
include
for
example
acceptance
by
facsimile,
assignment,
"entire
agreement",
reference
to
agents?
fees,
intellectual
property
provisions,
and
the
myriad
of
specifics
to
the
various
existing
clauses
which
relate
to
the
subject
goods,
which,
although
not
vital,
will
greatly
improve
the
likelihood
of
each
party's
understanding
of
its
rights
and
obligations.71
71
ibid.