The passing of the damage at work contracts

At work contracts, it could be considered that work owner and the parties will be satisfied if the work is fullfilled as the contract regulates and the price is paid. On the other hand in case that the circumstances occur in a way of the contracts which are not completed properly in valid work contracts, the legislator regules some general and optional rules in behalf of protection of parties. At this sense, it will be faced with non-performance, unproperly performance and impossibility. In cases of non-performance and unproperly performance, and if the work can stil be performed, specific performance and damages erising from that delay could be claimable rely on the general regulations of The Turkish Obligation Code. Besides, default interest in terms of pecuniary debt and also in synallagmatic contracts other demands arising the default with notice, could be claimed. These demands are avoidance of contract with compensation of negative damage and renunciation of fulfillment with compensation of positive damage. The future the contract and the requests that might be put forth by the parties need to be discussed when it is impossible to perform the contract or in other words when the impossibility has occured. Impossibility of performance could be examined in two parts as initial impossibility of performance and latter impossibility of performance. The initial impossibility of performance had been regulated in the Article 27 of the Turkish Code of Obligations and it had been stated that the contracts which are against the imperative provisions of the code, moral values, public order, personal rights or the contracts that has impossibility on the subject would be void. The initial impossibility of performance shall be divided as objective initial impossibility of performance and subjective initial impossibility of performance. Accordingly, it is obvious that the contract will be void if the contract is objectively impossible from the beginning. None the less, subjective initial impossibility would occur if performing the contract is possible for the third party while the debtor not able to perform it, in this case contract would be accepted as if it is valid and the debtor who is not able to perform the contract would be responsible to compensate the positive damage. As to latter impossibility of performance, that is the second type of impossibility of performance and vital part of our thesis subject, in a valid contract, obligor is not able to perform on the ground of subjective or objective reasons. According to the Turkish Code of Obligation Article 136, an obligation is deemed extinguished where its performance is made impossible by circumstances not attributable to the obligor. There is a question about Article 136 whether this article applies to objective or subjective latter impossibility of performance either both of them. As a consequence of impossibility of performance, in a bilateral contract, the obligor thus released is liable for the consideration already received pursuant to the provisions on unjust enrichment and loses his counter-claim to the extent it has not yet been satisfied. This provision, that constitutes the second paragraph of Article 136, specifically have an importance for latter impossibility of performance in the contracts of construction. As to the last phrase of second paragraph of Article 136, xviii works. According that fact, movable works and literary works will be delivered if only the tenure and ownership of the work is transfered to the work owner.Submitted that, the work with dependent propert such as wall painting and repair of broken glass, can not be delivered. The reason of that fact relies on the consequences of the nature of that work which already has born in the work owner's legal area. The delivery of immovable works will be connected with the fact that the land, that the work which is created on, is whether belongs to the contractor or the work owner. According to this fact, the delivery of the work which is created on the land belongs to the work owner will become by registration on behalf of the work owner's benefit. The point here is, even the creating is completed, if the passing of the ownership has not occured, the delivery would not be completed at all. In position,the immovable property, where the work was carried out in work owner's legal area, it shall be deemed that delivery will be completed by the express or implict notify. The fact of unpredictable event is defined the event which causes infringement of debt because of an inevitable reason and can't take upon to employer or contracter. In Article 483 of the Turkish Obligation Code, it includes not only unpredictable event in its technical meaning but also the concept of force majeure. In case work owner fails into the default in the receiving of work, it is a contraversial issue in doctrine that if the default of creditor's or the default of debtor's is occured. In common, because of there is no obligation regulated by law, if work owner fail into default in the receiving of the work, it won't be a default of debtor but default of creditor. It's the common reput but in doctrine there is different opinions that criticizes the acceptance of creditor's default as absolute. After these explanations, pursuant to Turkish Code of Obligations Article 483 paragraph 1, contractor shall be stands all damages of performance and counter performance which rises from contingency . Exception of this situation in other words possibility of work owner's responsibility from performance and counter performance only will be possible if the work owner failsinto the default of creditor. In case Article 483 paragraph 1 sentence 2, in occasion which mentioned in first paragraph, it is aimed to come up with a solution to the which party will be responsible in case of damage to the material. Accordingly, the party who brings essential material for the completion of the work shall be responsible damage occurred in unpredictable event. In some situations, damage indemnity is standed by work owner. This is regulated in second paragraph of 483. Article. Accordingly,as a exception of the first paragraph, if the work gets destroyed, because of the kit or the land of the work owner, because ot the material that is given by the work owner, because of the direction of the work owner, work owner will stand of the damage, if the contractow has not notified on time. Therefore, the employer will pay the positive damage of the contractor. But, in this situation, the contractor's right that can be claimed is not the price which is implied at the contract, It is the worth which is creatied by contractor and the debits which are not included by this worth. If the employer has a fault, it is also can be claimed that contractor can demand the positive damages. To announcing of contractor timely can be explain in aspect of good faith.xix Article 485 of the Law of Obligation analyses the fact of the damage in respect to the impossibility of performing contractual obligation due to behaviour of a work owner. Therefore, as a rule, work owner shall stand the damage. But, in this situation, the contractor's right that can be the worth which is creatied by contractor and the debits which are not included by this worth according to the Article 485 of The Turkish Obligation Code. Under the light of this provision fault of the work owner is not being considered. In other words employer will be obliged to compensate damages of contractor in the event of his default. As a result of Article 485, it is accepted that the agreement will be terminated proactively. However doctrine widely discusses whether the agreement will be terminated automatically or it will be terminated by employer itself or his legal inheritor. The discussion about Article 483 and 485 of the Turkish Obligation Code will be the subject when the work is destroyed because of unpredictable event arising at the work owner's legal area but also caused the impossibility to create the work. In this case, the first opinion of doctrine, 485. Code of Obligation is absorbing the effect of the 483 Code Of Obligation. The second opinion is, the code of obligation 485 is different from the code of obligation 483, the code of obligation 483. will be applied when the destroy of the work has occured and also the impossibility. Finally, According to the Article 486 ofthe Turkish Obligation Code if there is a work that the contractor is obliged to fulfill by personal performance, the contract terminates in case of the Contractors death or the loss of the ability. In this case If the work owner can use the part of the work completed, shall accept the work and pay the price. According to the article 83 of the Turkish Obligation Code that regulates that the parties has no liability of performing personally unles the circumstances are required, the Contractor has the obligation to perform personally at the works contract. However, if the contractor is a legal entity whether to apply the article 486 of Turkish Obligation Code or not is important. Doctrine agree that if a work contractsigned relying on one of the partners of the legal entity and then the partner dies or is separated from the partnership, the article 486 ofturkish code of obligation is stil applied.But another view in Doctrine assert that the article 486 does not apply absolutely in that situation described above. Key Words :Work Contracts, Contractor, Work Owner, Turkish Obligation Code, Non-performance, İmpossibility