Author: Tuna Çolgar
Introduction
Although the general principle in the law of contracts is freedom of contract or, in other words, freedom of will, the parties’ wills are not completely free in the case of exemption agreements. The validity of these agreements is limited by the mandatory provisions of the Turkish Code of Obligations (“TCO”).
In order to clarify the validity and the extent of exemption agreements, the concept of liability must first be analyzed and correctly defined.
The term “Law of Liability” is used to refer to both liability arising from breach of contract and to all cases of extra-contractual liability. In other words, liability may arise from breach of obligation as well as from breach of general rules of conduct. Although it is possible for a breach of obligation to constitute a tort, the conditions for the occurrence of contractual liability and tort liability and the consequences attached to these types of liability are different from each other.
What is Liability and Debt?
Pursuant to Article 49 of the TCO, a person who causes damage to another person through fault and unlawful acts is obliged to compensate for this damage. Scholars define unlawfulness as engaging in an act prohibited by the legal order in order to protect the damaged interest. As can be understood from the provision, in order for a party to be liable for a tort, (i) the act committed must be unlawful, (ii) the person committing the act must be at fault, (iii) a damage must occur, and (iv) there must be a causal link between the tortious act and the damage. Although the general rule in tort liability is that the person committing the act must be at fault, the TCO recognizes the existence of strict liability.
According to Article 112 of the TCO, which regulates contractual liability, if an obligation is not fulfilled at all or as required, the obligor must compensate the creditor for the damage arising therefrom, unless they prove that no fault can be attributed to them. In cases of liability for non-performance of an obligation, the obligor must prove the absence of fault. Liability within the meaning of Article 112 of the TCO refers to the obligation to compensate for a loss, since it arises from a breach of obligation.
This study will focus on the limitations imposed on the limitation or exclusion of liability arising from the breach of contractual obligations.
