What is a work contract?
Article 470 of the Turkish Code of Obligations defines work contracts as contracts in which the contractor undertakes to produce a work and the employer undertakes to pay a price in return.
As understood from its legal definition, the contractor is the person or organization who undertakes to manufacture and deliver the thing that is the subject of the work contract. The owner is the person or organization under the obligation to pay for and receive the work that is the subject of the contract.
FORM OF WORK CONTRACT
The work contract is not subject to formality. It can also be done orally. However, for ease of proof, it is recommended that the work contract be established in writing.
ELEMENTS OF THE WORK CONTRACT
According to the above legal definition, the elements of a work contract are production of work, fee, agreement between the parties and the form of the contract. What is important in a work contract is the creation of a work. A work contract differs from being a work contract in terms of results. The work does not necessarily have to be something material. Contracts made for situations such as writing a book, an aesthetic operation, or the production of a painting should also be considered as work contracts.
DIFFERENCES BETWEEN AN EMPLOYMENT CONTRACT AND A WORK CONTRACT
Service contract is stated in Article 393 of the Turkish Code of Obligations; It is defined as "A service contract is a contract in which the worker undertakes to work dependent on the employer for a certain or indefinite period of time and the employer undertakes to pay him a wage according to the time or work done." Based on this definition, it is possible to list the differences between service contract and work contract as follows;
1-Service contracts are contracts in which the worker works dependent on the employer. However, there is independence in the work contract. In the work contract, the employer cannot supervise or supervise the contractor. In the service contract, control and supervision are essential.
2-Since the contractor works independently in the work contract, the employer cannot be held responsible for any damages caused by the contractor to third parties. In the service contract, the employer has strict liability in this case. In a decision of the 15th Civil Chamber of the Supreme Court of Appeals, it is not a matter of dispute that the brush used by the plaintiff, who was doing the painting and whitewashing of the defendant's house on the day of the incident, suffered limb loss as a result of contact with the energy transmission line passing close to the balcony. He concretized this issue by using the expressions "The owner, who is a party to the work contract, cannot be held responsible...".
3-In service contracts, the employer is obliged to take all kinds of precautions to prevent the employee from suffering any harm. However, there is no element of legal dependency in work contracts. Therefore, if the contractor's worker is harmed due to work, the employer cannot be held responsible for this damage.
4-In terms of economic risk criteria, the employer is responsible in service contracts, but the contractor is responsible in work contracts.
The differences listed above are criteria that can be used to distinguish two contracts from each other. In addition, if the work undertaken is carried out under the control and supervision of the employer, the owner will be responsible together with the contractor in the cases listed above.
DISPUTES ARISING FROM MIXED CONTRACTS
In some cases, a mixed contract may be encountered, resulting from the intertwining of a work contract with another contract. In such a case, the opinion of the Supreme Court is to implement the provisions to which each contract is bound. As a matter of fact, in a decision dated 2015 of the Supreme Court HGK, in terms of an exceptional contract"…After determining the nature of the contract between the parties, the issue of which court the dispute should be heard should be evaluated according to the legal legislation that should be applied as of the date of the case and the contract..."
".. As for the concrete incident, the "World House Wedding Hall Contract" between the plaintiffs and the defendant is a mixed contract that includes service and work contracts, and since the photographing is considered a work contract, and the dispute between the parties arises from the failure to deliver the photographs, it is related to the work contract, and since disputes regarding the work contract are not within the scope of the repealed Law No. 4077, which should be applied as of the date of the case and contract, the court in charge of the dispute between the parties is the general courts..." He used it.
RESPONSIBILITY OF THE CONTRACTOR IN THE WORK CONTRACT
1- OBLIGATION OF CARE AND LOYALTY:
In the work contract, the contractor has two primary obligations: creating the work and delivering it. Apart from these, the contractor also has a duty of care and some side obligations.
ARTICLE 471-The Contractor must perform the actions he undertakes with loyalty and care, taking into account the justified interests of the employer.
In determining the contractor's liability arising from the duty of care, his behavior in accordance with the professional and technical rules that a prudent contractor undertaking works in a similar field should demonstrate is taken as basis.
The Contractor is obliged to carry out the work to be created directly or to have it done under his own management. However, if the personal characteristics of the contractor are not important in the creation of the work, he can have the work done by someone else. Unless there is a custom or agreement to the contrary, the contractor must provide the tools and equipment to be used to create the work.
The contractor's duty of care and loyalty is regulated in the relevant article. This debt, as emphasized in one of the decisions of the Supreme Court;
''Compliance with the provisions of the contract is required by the rule of "pact keeping", which is the basic principle in law. In the work contract, the contractor is obliged to carry out the work undertaken with loyalty and care in accordance with the trust placed in him, and to avoid any behavior that would harm the owner. The employer is also obliged to perform the duties assigned to him by his contract in a timely manner in order to complete the work. The parties must fulfill their obligations within objective rules of good faith.
Due to the nature of the work contract, the contractor is deemed to have guaranteed the result. A work will be created as a result of the work contract. The responsibility of the contractor arising from the duty of care will be based on the professional and technical rules that a prudent contractor undertaking works in similar areas should follow. As a matter of fact, in a decision given by the 15th Civil Chamber of the Supreme Court of Appeals in 2018;
''The case concerns the request for the collection of material and moral compensation arising from aesthetic intervention in the nature of a work contract. Considering all the documents, information and reports, the defendant doctor and hospital are at fault in the action taken against the defendant and the expected result was not met. Even if the expert report mentions that some results are complications, it is imperative that complication management be done correctly.
In the incident, the plaintiff was given an aesthetic guarantee, but it was not fully fulfilled, and the defendants did not make a defense that severed the causal link, nor could they prove the plaintiff's fault. By accepting that the defendants are responsible, the court should have the plaintiff's requests for pecuniary compensation clarified, evidence collected, research and examination in terms of pecuniary and non-pecuniary damages be made, and a decision should be made.'' will concretize the issue.
2- CONTRACTOR'S OBLIGATION FOR PERSONAL PERFORMANCE
According to the Turkish Code of Obligations, as a rule, the debtor is not obliged to fulfill his obligation personally. The contract for work is based on this general rule"The contractor is obliged to do the work to be created directly himself or to have it done under his own management. However, if the personal characteristics of the contractor are not important in the creation of the work, he can have the work done by someone else." He brought exceptions in some cases with his statements.
According to the article, the contractor must carry out the work himself. However, if the work to be done does not require personal skills, the contractor may have the work done by someone else. To explain the issue with an example, since the personal skills of the contractor are important in drawing a picture, such a job cannot be outsourced to someone else. However, in the construction of a building, the contractor must paint, whitewash, etc. can have the work done by someone else.
3- CONTRACTOR'S OBLIGATIONS IN TERMS OF MATERIALS
TBK ARTICLE 472 - "If the material is provided by the contractor, the contractor is responsible to the owner, like the seller, due to the defectiveness of this material.
If the materials are provided by the owner, the contractor is obliged to use them with due care and to return the account and the surplus."
While the work is being created, if it turns out that the material provided by the employer or the place he showed for the work to be produced is defective, or if any other situation arises that would jeopardize the production of the work as required or on time, the contractor must immediately notify the employer of this situation; If he does not notify, he will be responsible for the consequences that may arise from this.
''The work is a result achieved by the contractor with labor requiring artistry and skill. In work contracts; The contractor, due to his duty of loyalty and care, is obliged to produce the work for the benefit of the owner and without causing any harm to him. The Contractor's general notification obligation arises from this obligation. In other words, the contractor is obliged to immediately notify the employer of any situation that jeopardizes the proper and timely performance of the contract (TBK 472). This duty of warning should not be expressed in a narrow framework. Because this obligation will show itself and its consequences on the employer as events occur and are violated during and after the performance phase, the contractor who does not fulfill his warning obligation is responsible for the damage of the employer in accordance with Article 112 of the Code of Obligations. Pursuant to this article, if the debt is not fulfilled at all or as required, the debtor is obliged to compensate the creditor for the damage arising from this, unless he proves that no fault can be attributed to him.
With the scope of the file and the witness statements heard, it is understood that the defendants warned the business owner that it was not appropriate to build a wall with uneven stones from the plaintiff's field where the retaining wall would be built, and that the general notification obligation was fulfilled in terms of the stones used in this way; In the expert report, considering the ground and slope condition of the land where the greenhouse is built, 12 m. Since it is stated that the construction of a high stone wall is not suitable for the technique and causes destruction, and it has not been proven that the defendant contractors have fulfilled their obligation to notify about the negative effects that the slope and wall height may cause, the court should have concluded the case by obtaining an additional report from the technical expert and a reasoned and auditable additional report on the defects and the amount of damage to be caused to the owner and the contractor in causing the damage. However, it was not right to reject the case completely due to incomplete examination and research, and the verdict was reversed for these reasons. It was necessary.'' 15th Civil Chamber of the Supreme Court of Appeals 2016/129
4-DEBT FOR STARTING AND EXECUTING BUSINESS
BREAKING OUT OF CONTRACT
The contractor is responsible for starting and executing the work on time. If the employer does not fulfill this obligation without the fault of the employer, the employer may withdraw from the contract. Withdrawal from the contract means the termination of the contractual relationship between the parties with retroactive effect. In accordance with Article 473 of the TCO, in order for the employer to request early termination due to the contractor not starting the work on time, it must be clearly understood that the contractor will not be able to complete the work on time, according to all estimates, due to the delay. Each concrete case will be evaluated on its own merits and a detailed examination is required to determine whether the conditions are met or not.
TBK Article 473: If it is clearly understood that the contractor will not be able to complete the work at the agreed time, based on all estimates, due to the contractor not starting the work on time or delaying the work contrary to the provisions of the contract, or a delay caused by a reason that cannot be attributed to the owner, the owner may withdraw from the contract without having to wait for the day determined for delivery.
If it is clear that the work will be produced defective or in violation of the contract due to the contractor's fault during its creation, the employer shall instruct the contractor to rectify the defect or contradiction within a reasonable period of time to prevent this; Otherwise, he may warn that the repair or continuation of work will be given to a third party, at his own expense and damage.
5- CONTRACTOR'S LIABILITY FOR DEFECTIVE CAUSES IN WORK CONTRACTS
Defect in the work contract is defined as the absence of certain qualities that should be present in the work or the presence of some defects that should not be present, according to the purpose expected by the employer in the contract. Incomplete performance means that the work is not fully created. Although these two situations are different from each other, the provisions applied will be different. For this reason, defective performance should not be confused with incomplete performance. As a matter of fact, in a decision of the Supreme Court, ''Incomplete work is the work that is not fully done although it was decided to be done according to the contract and its annexes. Defective work is a work that does not have the qualifications agreed upon in the work contract or some indispensable qualifications. In other words, a defect is the absence of qualities that should normally be present in a good or work according to the provisions of the contract or law, or the presence of defects that should not be present."He defined the difference between defective work and defective work with his expressions.
You can access the conditions of liability due to defect in our article titled Defect in Work Contract
WORK CONTRACT DEBTS OF THE CLIENT
The most basic obligation of the business owner is the obligation to pay the price. According to Article 479, the employer's obligation to pay the price becomes due at the time of delivery of the work. If it is decided to deliver the work in parts and the price is determined according to the parts, the price of each part becomes due at the time of its delivery. If the price is not paid even though it is due, the business owner may be in default and have to pay compensation.
You can review our relevant article for the types of price in work contracts.
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