Ercüment Erdem Assoc. Prof. H. Murat Develioğlu

The Liability Of More Than One Person For The Same Damage Pursuant To Turkish Code Of Obligations Numbered 6098

March 2015

Introduction

In the event that more than one person is liable for the same damage, the relationship between the injured party and the liable persons – referred to as the “exterior relationship,” – and the relationship between the liable persons – are regulated differently under the abrogated Code of Obligations (“aCO”) numbered 818 and Turkish Code of Obligations (“TCO”) numbered 6098. Below, the liability of more than one person will be dealt with and, then, the differences under the said two codes will be explained.

I- The Concept of Liability of More than One Person

The liability of more than one person primarily means the liability of more than one person on the grounds of general tort law, or multiple grounds for responsibility. In accordance with tort law provisions, neither mutual fault nor wrongful intention is required for the liability to arise. The examples regarding multiple grounds for responsibility are listed as follows:

  • General tort law liability and instances of objective liability may occur at the same time. The most typical example is an employer’s liability for damages caused by one of its employees pursuant to TCO Art. 66 (aCO Art. 55), and said employee’s liability pursuant to TCO Art. 49 (aCO Art. 41).
  • Objective liability of more than one person may be in question. For instance, in the case of damages caused by a window that falls onto a car due to a defect in the window’s frame while an employee of a cleaning company is cleaning the window, the cleaning company shall be liable in accordance with the provisions governing the employer’s liability (TCO Art. 66; aCO Art. 55), while the building owner shall be liable in accordance with the provisions governing the building owner’s liability (TCO Art. 69; aCO Art. 58).
  • Along with the liability arising from tort law, contractual liability may be in question. To further explain, in the event that (A) has an accident with a car rented from (B), and another driver (C), is also faulty in the occurrence of the car accident, (A) shall be liable towards (B) on contractual grounds, whereas (C) shall be liable pursuant to the provisions of the Highway Traffic Laws.

II- The Provisions of aCO Governing the Liability of More than One Person from the Same Damage

This issue was regulated under aCO Art(s). 51 and 52. The said provisions set forth two differing collective responsibilities, and a differentiation is made between “partial solidarity” and “absolute solidarity.”

Accordingly, commitment of a tortious act by more than one person –for instance, a robbery committed collectively by three people- was identified as absolute solidarity; whereas, the responsibility of more than one person – as explained, above– on multiple (different) legal grounds, is classified as partial solidarity. The practical consequences of this division were as follows;

  • In instances of absolute solidarity, interruption of prescription for one liable person meant the same for the others. In cases where the liable persons were in partial solidarity, this was not accepted. In other words, even though the prescription was interrupted for one of the liable persons, it was accepted to continue for others.
  • In absolute solidarity, one of the liable persons used to be the successor of the creditor insomuch as he/she fulfil his/her obligations towards the creditor, which is not possible in partial solidarity cases.
  • The responsible persons could not rely on legal grounds for reduction of compensation –i.e. instances of slight negligence– in absolute solidarity cases, while in partial solidarity cases, they might do so.

In addition to the abovementioned differentiation between absolute and partial solidarity, in the event that more than one person was liable for the same damage in accordance with the provisions regulating absolute solidarity, the TCO regulates recourse in a manner differently than aCO. Indeed, as per aCO Art. 50 –the same as how the TCO stipulates– the person who abetted, meaning the person who aided the wrongdoer after the unlawful act is committed, used to be liable only if he/she received a share of the profit, or if he/she caused the damage by this aid.

A hierarchical structure is created by the aCO regarding the recourse in partial solidarity cases: As a rule, it is accepted that the primary responsible party is the wrongdoer, followed by the person who is contractually liable, and ultimately, the person who is objectively liable.

III- The TCO Provisions Governing the Liability of More than One Person for the Same Damage

The TCO governs the liability of more than one person for the same damage in a manner that is very different manner from the aCO, the most important of which is the abrogation of the differentiation between absolute and partial solidarity –more precisely, being left to a solely theoretical dimension. Indeed, as per TCO Art(s). 61 and 62, the persons who mutually commit a tortious act and cause damage, then the persons who are liable on multiple legal grounds are made subject to the same provisions. Consequently;

  • This prescription is interrupted for all of the liable persons if interrupted for one of them, even though their liability stems from different legal grounds.
  • In accordance with the TCO, the succession of the liable person who fulfils his/her obligation for more than what fell to his/her share, his/her right of recourse to all of the severally responsible persons for the excess payment is accepted for the partial solidarity instances, as well –since absolute/partial solidarity differentiation is abolished–.
  • The TCO is ambiguous as to whether or not the responsible persons may rely on the reduction of the compensation clauses. However, it should be noted that, the draft TCO stipulated that the limit of responsibility for each of the liable persons was the compensation amount that they shall be obliged to pay, given that they were the only responsible. In other words, the provision in the draft TCO allowed them to rely on the reduction of compensation grounds for themselves. This provision was later removed from the draft, and the possibility that they may rely on reduction grounds for themselves became controversial.

The below-mentioned regulations are introduced concerning the liability of more than one person, apart from those which relate to the consequences of absolute/partial solidarity division:

  • The differentiation relating to the tasks of the collective wrongdoers is abolished, and the responsibility of those who aided and abetted is regulated in parallel with the others.
  • The hierarchical structure of the right to recourse concerning the liability of more than one person from the same damage is abrogated. It is accepted that the judge shall take into account all circumstances and conditions, in particular, the negligence of each of the liable persons, and the severity of the damages suffered while deciding on the distribution of liability.

Conclusion

Turkish Code of Obligations numbered 6098 introduced a brand new regime significantly different from the one accepted by the abrogated Code of Obligations numbered 818 concerning the liability of more than one person from the same damage, the most important of which being the abolishment of the absolute/partial solidarity division.