The requirement of employing personnel as a condition for organizational liability (TCO art.66/III)

For the first time in the Turkish legislation, organizational liability was regulated with the provision of Article 66/III of the Turkish Code of Obligations ("TCO") numbered 6098. However, the fact that it was regulated under the title of "liability of the employer" and the wording of the provision brought discussions about "organizational liability". Organizational liability, which is an ordinary causal liability from the absolute liability situations, includes the compensation by the operator for the damages caused by the objective organizational deficiencies in the enterprises. It can be said that the provision is a general liability regulation for the damages incurred within the scope of the operational activity. The regulations in the comparative law, which are the source of this provision and having the same purpose and function (VE-OR art. 49a, OR 2020 Art. 59, PETL Art. 4: 202) should also be taken into consideration when evaluating the provision. Organizational liability is based on the presumption of lack of organization and is of ordinary causal (care) liability, allowing the operator to submit evidence of salvation. Article 66/III of the TCO indirectly imposes on the operator a duty of care for the organization. In order to avoid liability, the operator must prove that he has established an organizational order that is objectively suitable to prevent the damages caused by the enterprise activity. In general, each element of the enterprise is included the organization and carries the potential to cause a loss due to enterprise activity. Damages caused by any enterprise element such as the employees, the operator himself, the assets constituting the material elements of the enterprise, the products or services within the enterprise activity is included in the scope of organizational liability. Article 66/III of the TCO requires condition of employment in the enterprise for organizational liability. This condition is not only incompatible with the purpose of regulating the provision, but also prevents solutions for the problems arising in the context of change in the digitalized world within the framework of organizational liability.