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Translated from Turkish by Tim Drayton

Section two of title one of division one of the 2011 Turkish Code of Obligations governing tort

This statute was closely modelled on the Swiss Code of Obligations.

THIS IS THE TRANSLATION OF THE TEXT OF LAW NO 6098 (TURKISH CODE OF OBLIGATIONS) AS IT STOOD ON 15.1.2021 (THIS SECTION HAD NOT YET BEEN AMENDED AS OF THAT DATE) AND DOES NOT INCORPORATE ANY SUBSEQUENT AMENDMENTS THAT MAY HAVE BEEN MADE.


Relationships of Obligation Arising out of Tort

A. Liability

I. In general

ARTICLE 49- A person who harms another through a blameworthy or unlawful act must compensate for such harm.

Even if there is no rule of law prohibiting the harmful act, one who intentionally harms another through an immoral act must also compensate for such harm.

II. Proving harm and fault

ARTICLE 50- The wronged party is burdened with proving the harm and the wrongdoer’s fault.

If the degree of the harm suffered cannot be fully proved, the judge shall make an equitable determination of the degree of the harm giving consideration to the normal course of events and the steps the wronged party took.

III. Damages

1. Determination

ARTICLE 51- The judge shall determine the extent and form of payment of damages with regard to the requirements of the situation and especially the degree of fault.

If damages are awarded in the form of periodic payments, the obligor must post security.

2. Reduction

ARTICLE 52- If the wronged party consented to the harmful act or caused or compounded the harm or exacerbated the position of the party liable for damages, the judge may reduce the damages or dispense with them entirely.

If a party liable for damages who caused harm due to minor fault will become impoverished on paying the damages and equity so demands, the judge may reduce the damages.

IV. Special circumstances

1. Death and bodily injury

a. Death

ARTICLE 53- In the case of death, the following in particular is the harm suffered:

1. Funeral expenses.

2. Where death is not immediate, costs of treatment and losses attributable to total or partial inability to work.

3. Losses incurred by those deprived of the deceased’s support.

b. Bodily harm

ARTICLE 54- Bodily harm is in particular the following:

1. Costs of treatment.

2. Loss of earnings.

3. Losses attributable to total or partial inability to work.

4. Losses attributable to impairment of economic prospects.

c. Determination

ARTICLE 55- Amounts in respect of loss of support and bodily harm are calculated in accordance with the provisions of this Statute and the principles of liability law. Social security payments that are not fully or partially recoverable and payments that do not serve to satisfy a debt are not taken into account in determining such losses and may not be deducted from losses or damages. The damages calculated may not be increased or decreased in quantitative terms out of equitable considerations.

The provisions of this Statute are also applied in claims and actions in respect of losses connected with the partial or full loss of bodily integrity or a person’s death caused by administrative acts and procedures of all kinds and other causes for which the administration is responsible.

d. Non-pecuniary damages

ARTICLE 56- If a person suffers harm to their bodily integrity, the judge may award the wronged party an appropriate amount in non-pecuniary damages in view of the particulars of the incident.

In the event of grievous bodily harm or death, an appropriate amount may be awarded in non-pecuniary damages to the victim or the deceased’s kith and kin.

2. Unfair competition

ARTICLE 57- A person who has fewer customers or is threatened with their loss due to the spreading of untrue news or the making of such notices or action contrary to the rules of good faith may apply for the ending of such conduct and, if fault is present, damages.

The provisions of the Turkish Commercial Code on unfair competition remain unprejudiced.

3. Harm to personality rights

ARTICLE 58- A person who suffers harm to their personality rights may apply for the awarding of an amount in non-pecuniary damages.

The judge may decide on an alternative redress, as opposed to awarding such damages, or append this to damages; in particular, he may pass a ruling condemning the attack and order publication of this ruling

4. Temporary loss of the capacity of discernment

ARTICLE 59- A person who temporarily loses their capacity of discernment is liable to compensate for the harm they cause at this time. However, if they prove that they were not at fault for the loss of the capacity of discernment, they escape liability.

V. Multiple grounds for liability

1. Conflicting grounds

ARTICLE 60- If a person’s liability can be based on multiple grounds, the judge, provided the wronged party does not wish otherwise or the law does not provide otherwise, shall rule in accordance with the grounds that afford the wronged party the best redress.

2. Joint and several liability

a. In the internal relationship

ARTICLE 61- If more than one person cause harm together or are liable on different grounds for the same harm, the provisions on joint and several liability are applied to them.

b. In the external relationship

ARTICLE 62- In apportioning damages among jointly and severally liable parties for the same harm, consideration is given to all situations and conditions, especially the magnitude of the fault that is attributable to each of them and the intensity of the risk they caused.

A person who pays more than the share of the damages apportioned to them has the right of recovery against the other jointly and severally liable parties and subrogates to the wronged party’s rights.

VI. Situations that negate unlawfulness

I. In general

ARTICLE 63- An act that is based on authorization granted by law and remains within the bounds of this authorization is not deemed unlawful even if it causes harm.

An act is not deemed unlawful, either, in the case of consent on the part of the wronged party, superior private or public benefit, the wrongdoer’s act constituting justified self-defence, the protection by a person of their right with their own force under circumstances where timely intervention by the official public bodies cannot be obtained or actions in cases of necessity.

2. Liability

ARTICLE 64- One acting in justified self-defence may not be held liable for the harm they cause to the assailant’s person or property.

The judge shall make an equitable determination of the liability of one who harms another person’s property to protect themselves or another from a clear or imminent danger to compensate for such damage.

A person who is obliged to protect their right with their own force may not be held liable for the harm they cause if under the situation and conditions the assistance of the law enforcement agencies cannot be summoned at that moment and there is no other way of preventing the right from undergoing loss or being rendered unexercisable to a significant degree.

B. Strict Liability

I. Liability on grounds of equity

ARTICLE 65- If equity so dictates, the judge may order full or partial damages in respect of harm a person who lacks the capacity of discernment causes.

II. Vicarious Liability

1. Employers’ liability

ARTICLE 66- An employer must compensate for the harm their employees cause to others while performing work assigned to them.

The employer is not liable if they prove that they exercised due diligence to prevent the harm from occurring in selecting employees, giving work-related instructions and conducting oversight and supervision.

One who employs staff at premises must compensate for harm caused due to those premises’ activities unless they prove that the working arrangement at such premises is conducive to preventing harm from arising.

The employer has the right to recover the damages they pay from the employee who caused the harm purely to the extent that such person is personally liable.

2. Liability of keepers of animals

a. Duty to compensate

ARTICLE 67- A person who undertakes to permanently or temporarily keep and supervise an animal must compensate for the harm the animal causes.

An animal keeper is not liable if they prove that they exercised due diligence to prevent such harm from occurring.

If the animal is startled by another or an animal owned by another, the animal keeper reserves the right to seek recovery from such persons.

b. Right of seizure

ARTICLE 68- If a person’s animal causes harm on another’s immovable property, the owner of the property may capture that animal and seize it until the harm is compensated for; or they may neutralize the animal by other means if the situation and circumstances so justify.

In such cases, the owner must immediately inform the animal’s owner and, if they do not know the owner, make the necessary efforts to trace them.

3. Building owners’ liability

a. Duty to compensate

ARTICLE 69- An owner of a building or other structure must compensate for harm that arises due to defects in its construction or inadequate maintenance.

Usufruct and habitation right holders are also jointly and severally liable along with the owner for harm that occurs due to inadequate maintenance of the building.

Liable parties reserve the right to seek recovery from other persons who are liable to them for such reasons.

b. Preventing risk of harm

ARTICLE 70- A person who is at risk of suffering harm from another’s building or other structure may request that right holders take the necessary measures to avert such risk.

The rules of public law on the protection of persons and property remain unprejudiced.

III. Enhanced strict liability and counterbalancing payment

ARTICLE 71- If harm occurs due to the activity of premises that pose a significant degree of risk, the owner of such premises along with the operator, if any, are jointly and severally liable.

If it is concluded that premises are prone to cause frequent and severe harm in view of their nature or the materials, tools and forces employed in activities even with the exercise of the full due diligence expected of a person with expertise in such affairs, these are deemed to be premises that pose a significant degree of risk. In particular, if stipulation is made in any statute for specific enhanced strict liability for premises that pose similar risks, such premises are also deemed to be premises that pose a significant degree of risk.

Specific liability provisions laid down for a particular risk remain unprejudiced.

Even if premises that pose a significant degree of risk have been licensed by the legal order for such activity, those who suffer harm may seek counterbalancing payment for harm caused by such premises’ activity.

C. Limitation period

I. Rule

ARTICLE 72- Claims for damages are barred after the lapse of two years as of the date on which the wronged party became aware of the harm and the party liable for damages and in all cases ten years as of the commission of the act. However, if the damages arise out of an act that warrants a penalty for which penal law stipulates a limitation period of longer duration, that limitation period is applied.

Where the tort gives rise to an obligation on the wronged party, the wronged party may escape performance even if the claim in tort has become time barred.

II. Claims for recovery

ARTICLE 73- Claims for recovery are barred after the lapse of two years as of the date of awareness of payment of the damages and the co-liable party and in all cases ten years as of the date on which damages are paid in full.

The person from whom damages are sought must notify co-liable parties of the situation. Otherwise, the limitation period starts to run on the date on which such notification could have been given as per the rules of objective good faith.

D. Trial

I. Relationship with penal law

ARTICLE 74- In deciding whether the wrongdoer was at fault and had the capacity of discernment, the judge is neither bound by the provisions of penal law on liability nor bound by an acquittal ordered by the penal judge.

Similarly, the penal judge’s assessment of fault and determination of harm is not binding on the civil judge.

Amendment of the damages award

ARTICLE 75- If the extent of bodily injury cannot be fully determined at the adjudication stage, the judge may reserve the right to amend the damages award within two years of finalization of the judgment.

III. Temporary payments

ARTICLE 76- If the wronged party submits compelling evidence in vindication of their claim and their economic circumstances also so justify, the judge may order the making of a temporary payment by the defendant to the wronged party on application.

The temporary payments the defendant makes are set off against the damages awarded; if damages are not awarded, the judge orders repayment of the temporary payments the claimant received along with statutory interest.

Archive of Turkish legal translations by Tim Drayton