LIMITATION OF LIABILITIES UNDER TURKISH LAW

Turkish Code of Obligations (TCO) has broad influence over Turkish Law. Unlike the other law systems, TCO includes Tort Law and Contract Law at the same time. Therefore, the rules of TCO are mostly applicable to conflicts. Conflicts are disagreements between the parties of a contract. A contract is a written or verbal agreement that shows the intention of the parties. These intentions mostly impose liabilities to the sides. According to Turkish Code of Obligations (TCO), parties have to bear liabilities that were settled in a contract. If a side of a contract fails to fulfill an obligation that is settled, the other side can claim damages. Therefore, sometimes parties may want to limit their liabilities in a contract. These limitations require several conditions. In order to make valid limitations, parties have to conform to these conditions.

I.General Rules of Limitation

General rules are not regulated directly in TCO. However, we can understand the general rules by interpreting the article. TCO art. 115 states that the gross negligence of debtors cannot be limited with limitation agreements. With the argumentum a contrario, TCO implies that liabilities can be limited both with an article in a contract, or another agreement provides this. Doubtless, this interpretation leads us to 2 general rules. Firstly, there must be an agreement on a limitation. Secondly, the matter of negligence should be slight. Without these two conditions, limitation agreements cannot be made.

II.Exceptions of Limitation

In addition to general rules, there are also exceptions regulated in TCO art. 115, 116. Firstly, gross negligence cannot be limited as the first rule of the article. Moreover, TCO art. 115/2 explains that if there is a contract of service between the parties, limitation agreements are invalid. According to Kemal OĞUZMAN, this article is explained incorrectly. In Swedish Code of Obligations, which is the main source of TCO, this rule applies to the contracts between the employee and employer. The main reason for that is to prevent employers to cause any pressure on employees because employers can force employees to make them accept the limitation agreement with the authority. Thus, Oğuzman states that this article was regulated for contracts between the employee and employer. The final exception of limitation in TCO art. 115 is for the services which require specialization and allowance of competent authority. Limitation agreement for the situations regulated in TCO art. 115/2,3 is not possible, even if the negligence is a slight one. TCO art. 116 also includes an article about the exception of the limitation of liability. TCO art. 116 contains articles about liability for auxiliaries. According to TCO art. 116/2, liability for auxiliary can be limited fully or partially. Yet, TCO art. 116/3 emphasizes that liability for auxiliaries cannot be limited if the service provided requires specialization and allowance of competent authority.

III.Conclusion

To conclude, for a valid agreement about the limitation of liabilities there must 2 general rules which are the presence of an agreement and slight negligence. Moreover, the presence of the situations regarded as an exception makes the limitation agreement invalid. Thus, the matter of contract should not be any of them. These are the general rules of the limitation of liabilities. Certainly, these articles are not the only regulations about the limitation of liabilities. TCO also provides limitations in art. 214 and art. 221. Not only TCO but also the Turkish Commercial Code (TCC) includes regulations about the limitation of liabilities. However, these articles apply to specific situations. On the other hand, general rules (TCO art. 115, 116) are the fundamentals of limitation and apply for all of the conflicts about the limitation of liabilities.