Non-Liability Agreements According To The Provisions Of Code Of Obligations

July 2012 Süleyman Sevinç
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General

Waiver or release of liability with party agreements can take different forms in practice. The most common form is the intention to waive of liability for the injury or loss sustained by own fault. Fault types are classified as intentional tort, gross negligence and slight negligence in our law system. Lawmaker has restricted the non-liability agreements in the Code of Obligations in Articles 99 and 100 No. 6098 (in Articles 115 and 116 of the Code of Obligations (TCO) No. 6098 which shall come into force on 01.07.2012) based on degrees of fault.

Articles 99 and 100 of the Code of Obligations are as follows:

“Article 99
Every condition that shall hold the debtor exempt from liability in the event of fallacy or gross negligence shall be non-applicable.
In the event of slight negligence, if the creditor is under the service of the debtor when the agreement indicating that the debtor shall not be liable for slight negligence is made or if the liability is due to an action that is subject to concession issued by the state, the judge may consider said condition non-applicable based on his discretion.”
“Article 100
Person, assigning fulfilment of a debt or use of a right extending from a debt to persons who live with him or work under his management in conformity with the laws, shall be responsible for the losses caused by said persons during performance of the works.
Liability extending from the actions of said persons may be excluded completely or partially with an agreement to be made between the parties previously.
If the creditor is under the service of the debtor or if the liability is due to performance of an action realized with a concession provided by the government, the debtor can only hold himself free of liabilities extending from slight negligence.”

Provisions of Article 115 and 116 of the TCO are as follows:

NON-LIABILITY AGREEMENT
"Article 115
A previously made agreement to the effect that the debtor shall not be responsible for gross negligence shall be strictly null and void.
All kinds of agreements made previously indicating that the debtor shall not be responsible for any debts that extending from the service contract signed between the debtor and creditor shall be strictly null and void.
If a service, profession or craft requiring expertise can only be provided with the concession provided by the laws or authorized departments, previous agreements indicating that the debtor shall not be responsible for slight negligence shall be strictly null and void.”
“LIABILITY FOR ACTIONS OF ASSISTING PERSONS
Article 116
Even if the debtor has assigned the fulfilment of the debt or the use of the right extending from the debt relationship to a person who lives with him or his assistants like his employees, the debtor shall be responsible for compensating the losses given to the other party during execution of the work by them.
Responsibility extending from the actions of the assisting persons may be excluded completely or partially with a previously signed agreement.
If a service, profession or craft requiring expertise can only be provided with the concession provided by the laws or authorized departments, previous agreements indicating that the debtor shall not be responsible for slight negligence shall be strictly null and void.”

In addition to these, certain contract provisions that are included into the agreements and that are considered as not being related with fault and moreover, all kinds of agreements that weaken the legal status of the creditor may be considered as a non-liability agreement as per the imperative order of Articles 99 and 100 of the Code of Obligations.

Exemption from liability refers to waive of the liability completely with a party agreement. It is claimed in the doctrine that complete waive of the liability is not possible pursuant to Article 99 of the Code of Obligations. Moreover, it is stated that within the framework of this provision that a non-liability agreement covering intentional tort and gross negligence is strictly null and void and that it is irrelevant to say that the liability is waived completely with non-liability agreements covering slight negligence. However, provisions of 100/2 of Code of Obligations are omitted here. Pursuant to this provision, responsibility of the debtor may be discharged completely from the losses that may be caused by the assisting persons.

Although complete waiver of the liability resulting from actions of the assisting persons can be possible in principle, the debtor cannot sign a non-liability agreement related with losses that are caused by him in terms intentional tort and gross negligence. Thus, when only the agreement related with the assisting persons are taken into consideration it can be said that the liability is waived in terms of the debtor but when the non-liability agreement covering losses resulting from the debtor’s own actions is taken into consideration, it can be said that the liability is only subjected to limitation.

In the event of an agreement being made for limitation of liability, the issues of limitations in terms of subject, assets value, amount, and time shall emerge.

Non-liability statements, which are unilateral expressions of will provided for everyone, shall not be considered as non-liability agreements as these do not contain a will agreement in principle. If the creditor is given the chance to see the non-liability statement and understand its contents and the contract relationship is established afterwards, it can be assumed that the creditor has accepted said non-liability statement. However, said consequence shall require that the creditor is subject to the conditions to see the non-liability statement with a care that is expected from everyone. Otherwise, the creditor is not liable for searching and finding said records and cannot be expected to read the records that are not written in a way that can be read and understood by everyone. Said kinds of records may be taken into consideration as a cause of reduction in the determination of the compensation under the liability of unjust action. The action of the addressee, who has been warned as a result of a unilateral expression of will, failing to pay attention to this warning and suffering a loss as a result of said action, may be considered as a concurrent negligence.

Limits of Non-liability Agreements

Article 19 of the Code of Obligations indicates that the subject of the contract may be determined freely within the limits set by the laws; however, it is stated that these shall be applicable on the condition that these are not in breach with the laws, ethics, public order and personal rights.

It is stated in Article 27 of the TCO that the agreements that are in breach with the imperative provisions of the law, ethics, public order, personal rights and agreements with an impossible subject are strictly null and void.

Article 99 and 100 of the Code of Obligations (articles 115 and 116 of the TCO) come to mind when we speak of imperative provisions in our law regarding non-liability agreements. Pursuant to the main principle imposed by Article 99 of the Code of Obligations (115 of TCO), waive of the liability resulting from intentional tort or gross omission of the debtor (gross negligence with the term in Article 115 of TCO) shall be in breach with the law. Pursuant to Article 99, even if the responsibility resulting from slight negligence is waived, if the debtor is performing actions with a concession provided by the state or if the creditor is under the service of the debtor, the non-liability agreement may be considered null and void based on the discretion of the judge. However, even if the debtor has ensured that all kinds of liability due to fault of his assistants are accepted by the creditor, the debtor can only exclude the liability due to slight negligence if the liabilities are due to an action that is performed with a concession provided by the state or if the creditor is in the service of the debtor, pursuant to Article 100 of the Code of Obligations. Evaluation of article 115 and 116 of the TCO jointly shall require reaching of different conclusion that covers the exemptions in Articles 99 and 100 of the Code of Obligations partially. Accordingly, if the liability is due to performance of activities that require expertise or if it is due to fulfilment of debt resulting from a service contract between the creditor and the debtor, all existing non-liability agreements shall be strictly null and void.

As stipulated under 99/2 of the Code of Obligations, if the liability extends from execution of a profession that is realized subject to concession granted by the government, the judge shall be entitled to render the previously signed non-liability agreements null and void with regards to slight negligence related with said concession activity. Pursuant to Article 100/3 of the Code of Obligations, if the subject of non-liability agreement that waives the liability of the debtor extending from the actions of others is specific to performanceof a profession that is subject to a concession granted by the government, the liability may be waived only for slight negligence. It is apparent that the definition of the craft/business subject to concession shall cover the subject situation in addition to activities provided by entrepreneurs under the concession agreements signed with the Administration.

The principle of losses resulting from activities performed under a concession granted by the state not being made a subject of non-liability agreements, as one of the restrictions in articles 99 and 100 of the Code of Obligations in terms of freedom of contract has been subjected to substantial changes with the TCO No. 6098. With said change, the sanction which was subject to the discretion of the judge in Article 99 of the Code of Obligations has been removed and the freedom of contract for non-liability in the event of slight negligence granted to the debtor in Article 100 of the Code of Obligations has been abrogated in terms of content.

Thus, the limitation of liability for the losses extending from the actions of the debtors performing said kinds of actions is no longer possible with the new law notwithstanding that the actions are performed directly or through assistants. Said kinds of non-liability agreements shall be strictly null and void for both gross negligence and slight negligence.

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