In order for Turkish law to have a valid debt owed, the debt must have originated from one of the sources regulated by law. When these sources are taken into consideration, a debt can be born with a contract, a tortious act, an unjust enrichment or by law. When we take a tortious act to investigate these sources, a brief description is that “due to a debt arising from wrongful act, the person causing the loss is liable to indemnify the aggrieved party.” In this context, according to the Article 49 of the Turkish Code of Obligations (shortly; TCO), “Person, who causes damage and loss to another person by culpable and unlawful action, is obliged to compensate this damage or loss.” Acting on this provision, the elements of the tortious act is; the existence of harm, the existence of negligence, the fact that there is a causal relation and it is in the form of contradiction to law.
If we evaluate the functions of the tortious act, the first function is the ability to compensate the resulting loss and as a rule, no more compensation than damages. Another function is prevention. The aim here is to do something before the damage is done or to prevent damage. If we think that the main purpose of the Criminal Law is avoiding, at this point we can say that a relationship with the aim of Criminal Law has been established.
- Defect liability and Absolute liabilities with examples
There is a contradiction in the rules of general conduct in tortious act. Therefore, the state of being defective, that is, “defect liability” is essential. In order to be able to talk about the existence of defect liability, the above 4 conditions must be met. But in addition, it is stated in absolute obligations. We can make an assessment by dividing the cases of absolute liability into two as flexible reason liability and strict reason liability. In the case of flexible reason liability, the person will be able to recover from the responsibility by proving that the necessary care, which is accepted as a presumption, is shown. Examples of flexible reason liability are, the liability of employer in TCO66, the liability of the animal keeper in TCO67 and 68, the responsibility of the head of the house in Article 369 of the Turkish Civil Code and the temporary lose of the mental capacity in TCO59. On the other hand, in the case of strict reason liability, the liability of the building owner in TCO69 and the danger liability in TCO71 can be given as an example. In addition, absolute liability is also regulated in various codes. Examples of these codes are; Highway Traffic Law, Environmental Law, Biosafety System Law can be given. Parallel to all this, the manufacturer’s liability is also an absolute liability and has not been regulated in our current legislation and it should also be noted that assistance has been received from EU legislation.
- Compliance with laws
In some cases, the existence of a reason to abandon the contradiction to law is the question. In these cases, the contradiction to law disappeared and became in compliance with the law. If we look at these cases; the existence of a consent given before the tortious act, the use of an authority based on public law, the existence of a self-defence or a state of necessity formed in TBK64 (if both conditions are met), the existence of best public or private interest , or the use of force to protect a person’s right is not contrary to the law in all cases we can say that it is lawful.
- The statute of limitation
According to TCO72, the statute of limitation to demand compensation is expired after two years beginning with the time by which the damaged notices the loss and damages and the person liable for compensation and in any case after ten years beginning with the date of act. In other words, we can say that there is not a foreclosure, but a statute of limitation. Finally, if a tortious act is committed together, that is to say, in the event of a defect, joint liability is in question and the borrower has the claim of recourse within each other.