Recovery of damages in respect of a third party's loss

In cases where the person who suffered damage as a result of a breach of obligation or tort and the person who can claim compensation are different from each other, the problem of recovery of damages in respect of a third party's loss comes to the fore. This situation is described by the concept of a shift of loss. The injured person cannot claim compensation because he/she is not a party to the breached contract or, in the case of a tort, he/she is not the owner of the right the violation of which is legally sanctioned with compensation. The party to the contract or the owner of the violated right, on the other hand, cannot be compensated since he/she has not suffered any damage. However, the purpose of the legal principles that lead to this situation where no one can claim compensation is not to lead to such a result. In some exceptional cases, this problem can be solved by accepting a contract for the benefit of a third party by filling the contractual gap based on the hypothetical intent of the parties. Otherwise, there is an implicit gap in the law. In this study, this legal gap is filled by applying TCO 509 I by analogy, and the third party who suffered damage is provided with a compensation claim that can be asserted directly against the damaging party. Since this provision provides for a legal assignment, it is possible to benefit from the provisions on assignment of receivables by analogy in resolving some special issues that may arise (such as the defenses that the parties may assert against each other). When the concrete examples of shift of loss are specifically analyzed, it is seen that the theory developed in this study can fill an important gap in Turkish law.