Defect in the work contract

Defect in work contracts is defined in our article titled What is a Work Contract?. Here, the conditions of the contractor's liability for defects in work contracts will be examined.

DEFAMATORY PROVISIONS OF WORK CONTRACT

CONDITIONS:

1-The work must be completed and delivered.

The contractor must complete the work and deliver it to the owner. Delivery is one of the contractor's main obligations.

PROOF OF DELIVERY IN WORK CONTRACT

In the work contract, delivery means that the contractor completes the work and puts it under the actual control of the employer.

According to the expressions of Article 190 of the HMK, "The burden of proof belongs to the party who derives rights in his favor from the legal consequence attributed to the alleged fact, unless there is a special regulation in the law." In work contracts, the fact that the work has been delivered must be proven by the contractor. Since delivery is a material fact, the fact of delivery can be proven with all kinds of evidence.

If the employer refuses to take delivery of the work, the contractor will have to prove that the employer is in default.

Parties may add clauses to the contract regarding the delivery of the work. If there is a provision in the contract regarding delivery, the fact of delivery must be proven according to the contract.

Just issuing an invoice does not prove the fact of delivery. If the invoice is recorded in the commercial book, the dispute is resolved in accordance with the provisions of the commercial books as evidence.

"According to the scope of the file and the statements of the parties, it is undisputed that a work contract relationship was established between the parties, as accepted by the court. The plaintiff started enforcement proceedings based on the invoices issued in 2012. The authorized representatives of the defendant cooperative stated in their sworn statements during the trial that the plaintiff made some kitchen cabinets belonging to the cooperative, but did not deliver the products subject to the invoice. In this case, it is understood that a verbal work contract relationship was established between the parties in 2012. This was established verbally between the parties. The contract is in the nature of a work contract regulated in Articles 470 et al of the Turkish Code of Obligations No. 6098, and it is clear that the dispute must be resolved in accordance with these provisions. In general, the contractor's mere creation of the work does not mean that he has fulfilled his primary performance obligation. The contractor will create the work he has undertaken and deliver the work he has created to the employer in accordance with the procedure and the law and the provisions of the contract. In other words, the contractor has to prove that he delivered the work to the employer in accordance with the contract. In order to prove his defense, the plaintiff contractor is obliged to prove that he delivered the work to the employer within the time limit. In work contracts, delivery is defined as the contractor's actual possession of the completed work with the intention of fulfilling the contract. The burden of proving delivery is on the plaintiff contractor according to the defense in the concrete case. In the case of proof, the parties can stipulate in the contract regarding the evidence with which the proof will be made and they can make an evidentiary contract regarding delivery. If there is no such evidentiary contract, the contractor can prove the fact that he delivered the work he created, as a rule, with all kinds of evidence, even with witnesses, since delivery is not a legal transaction, but a legal act.As for the concrete incident in the light of these explanations; Since there is no written contract in the contractual relationship established between the parties and no provision regarding the proof of delivery as an evidence contract regarding the delivery in this contract, the plaintiff contractor will be able to prove the fact of delivery with all kinds of evidence. While the plaintiff's attorney has relied on witness evidence in his petition, the plaintiff's witnesses must be heard regarding the fact of delivery in a proper manner. It is understood that the plaintiff party also relies on discovery and expert examination evidence in their petitions at the stages, and when necessary, on-site discovery and expert examination must be carried out and the issue of whether delivery has been made by taking into account other evidence must be determined without any hesitation. In case the delivery is proven, since there is no agreement on the price between the parties, the manufactured products must be subject to TBK No. 6098. According to Article 481, the decision should be made based on the deduction and result of the payments to be proven and calculated according to the market prices in the year in which it was made. However, it was not correct to reject the case on the grounds that the debt was renewed by going beyond the defense, despite the incomplete examination and the fact that the work in question in the file numbered 2016/248 of the Konya 2nd Commercial Court of First Instance was related to another contract, even in the affidavits of the defendant cooperative officials, and the decision had to be reversed for these reasons. SUPREME COURT 15TH CIVIL DEPARTMENT K. 2019/2767

2-The delivered work must be defective.

The faults in the work are arranged in two types: hidden and open faults.

A-Obvious defects:

Article 474 of the Turkish Code of Obligations provides that "After the delivery of the work, the owner is obliged to review the work as soon as possible in the ordinary course of business and, if there are defects, to notify the contractor within a reasonable period of time." What is meant by the article is obvious defects. Defects that can be noticed through proper inspection are considered obvious defects. If there is a clear defect in the work, the owner must notify the contractor within a reasonable time. If the notification obligation is not exercised within a reasonable time, the owner will be deemed to have accepted the work.

B-Hidden shame:

Defects that cannot be noticed during a proper review are defined as hidden defects. Article 477 of the Turkish Code of Obligations determines the hidden defect and the notification period with the following words: "If the defect in the work is revealed later, the owner must notify the contractor without delay; if he does not, he is deemed to have accepted the work.".

3-The defect must not be caused by the owner of the business.

"If the defect of the work arises from the instruction given by the owner, despite the contractor's express warning, or if it can be attributed to the owner for any reason, the owner cannot exercise his rights arising from the defect of the work." TBK 476

In work contracts, the contractor is not dependent on the owner. In a decision dated 2016, the 15th Civil Chamber of the Supreme Court of Appeals stated that "in order for the contractor to be competent in the work and to be entitled to the price, it is mandatory that he completes and delivers the work in accordance with the rules and techniques of science and art and the purpose expected by the employer. In case of production in violation of the contract and its annexes, as well as the project and technical drawings, and even if the production has been requested by the owner, if the contractor has not fulfilled his general notification obligation towards the owner, the contractor cannot be saved from the consequences. In response to the fulfillment of the general notification obligation, which means informing the employer that the work cannot be completed in accordance with the rules and techniques of science and art and the purpose expected by the employer if the instructions of the employer are fulfilled, if the employer clearly insists on his instructions, the contractor will not be liable. The fact that the employer did not respond to the warning cannot be considered as an implicit instruction to continue the work.'' He explained what the purpose of the article was with his statements.

As can be understood from the relevant article and decision, the fact that the employer requests a production contrary to the contract and the project and the contractor produces work in line with the request of the employer is not sufficient to avoid liability arising from defects. The contractor also has a notification responsibility. This responsibility is covered by TBK 472/3. It arises from matter. Relevant article ''During the creation of the work, 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.'' .

4-The employer must fulfill his inspection and notification obligations.

EXAMINATION AND NOTIFICATION OBLIGATION OF THE BUSINESS OWNER:

The employer's inspection obligation is regulated in TCO Articles 474 and 477.

TBK 474: ''After the delivery of the work, the owner is obliged to review the work as soon as possible in the ordinary course of business and, if there are defects, to notify the contractor within a reasonable period of time.''

What is meant by the article is obvious defects. Defects that can be detected through proper inspection are considered obvious defects. If there is a clear defect in the work, the owner must notify the contractor within a reasonable time. If the notification obligation is not exercised within a reasonable time, the owner will be deemed to have accepted the work.

TBK 477: "If the defect in the work is revealed later, the owner must notify the contractor without delay; if he does not, he is deemed to have accepted the work."

This article regulates hidden defects. Defects that cannot be noticed during a proper inspection are defined as hidden defects. If a hidden defect is discovered, the employer must notify the contractor without delay. Otherwise, he will be deemed to have accepted the job.

There is no regulation in the TBK regarding the form of defect notification. A defect report can also be made verbally. However, doing so through a notary or registered letter will make it easier to prove. The defect can be proven with any kind of evidence.

The 15th Civil Chamber of the Supreme Court of Appeals No. 2016/2603 ''First of all, it should be emphasized that Article 470 et seq. of the Code No. 6098, which was in force on the date of the agreement between the parties. There is a work contract relationship regulated in the articles, the employer's obligation is to pay the price of the work (TBK Article 4799/1.), and the contractor's obligation is to perform the work in accordance with the purpose of the employer, taking into account his justified interests, with loyalty and care (TBK Article 4711/1.). In accordance with Article 4744 of the Turkish Code of Obligations, which regulates the liability of the contractor due to defects, the employer is obliged to review the work as soon as possible in terms of open defects and, if there are defects, to report them to the contractor within an appropriate period of time, and in case of hidden defects, in accordance with Article 477/last, to report the situation to the contractor without delay. If the defect is not reported, the work is deemed to have been accepted. However, it is not possible for the court to observe ex officio whether the notice of defect was made in due time or not. In other words, the court does not consider whether a defect notice has been made or not, and the contractor must put forward this issue as a defence. The decisions of both our Department and the General Assembly of the Supreme Court of Appeals are in this direction. In addition, there is no need to report defects in terms of deficiencies, and it is possible to make a request for deficiencies within the statute of limitations. Since the court did not make a notice of defect in time, it is not right not to delve into the merits of the case. On the other hand, it is accepted in the practices of our Department that the existence of a defect notice in work contracts can be made with all kinds of evidence. In fact, since the plaintiff party notified the defendant by e-mail on 23.05.2014 within the appropriate period in accordance with Article 474 of the Code, starting from 17.05.2014, when he received the container, it should be accepted that the notice was made on time. The (2) day notice period in Article 21/1-c of the TCC has no application in work contracts. In this case, the action to be taken by the court is; The work should be examined by obtaining a report from an expert expert, the nature of the defects, if any, should be evaluated in accordance with the provisions of Article 474 of the TCO, the provisions of Article 475 of the TCO, which regulates the optional rights of the business owner, should be observed, whether the work should be rejected or not, if the work does not need to be rejected based on the nature of the defect, the price reduction and damages arising from the defect, if any, should be determined and a decision should be made based on the result.It was not right to make a decision based on incomplete examination and insufficient expert report, and it was deemed appropriate to reverse the decision.'' The decision has been added as an example to reinforce our explanations.

5-The work must not have been accepted.

Delivery and acceptance of the work are different concepts. The regulation in Article 477 of the TBK is related to the acceptance of the work. Acceptance may be made by consent or by negligence. The owner can openly accept defective work. In addition, if he does not comply with the inspection and notice periods, he is deemed to have accepted the work due to his negligence and cannot benefit from the defect provisions. Article ''If the defect in the work is revealed later, the employer must notify the contractor of the situation without delay; If he does not notify, he is deemed to have accepted the work.'' expressions indicate hidden defects. Again, even after the hidden defect is discovered, the owner may accept the work or may be deemed to have accepted it negligently by not complying with the notice periods.

Article 477: "After the express or implied acceptance of the work, the contractor is relieved of all liability; however, his liability continues for defects that are deliberately hidden by him and cannot be noticed during proper review.

If the owner neglects to review and notify, he/she is deemed to have accepted the work.

If the defect in the work is revealed later, the owner must notify the contractor of the situation without delay; If he does not, he is deemed to have accepted the work."

OPTIONAL RIGHTS OF THE BUSINESS OWNER

We have explained above the conditions required for the contractor to be liable to the owner for defects. If the above conditions are met, the business owner will be able to use some optional rights according to Article 474 of the Turkish Code of Obligations. These rights are in the law;

TBK 474. In cases where the contractor is responsible for the defect in the work, the owner can use one of the following optional rights:

1. Cancellation of the contract if the work is defective to the extent that the employer cannot use it or cannot be forced to accept it due to equity, or if it is equally contrary to the provisions of the contract.

2. Do not keep the work and ask for a discount in proportion to the defect.

3. Requesting the work to be repaired free of charge, with all expenses borne by the contractor, unless it requires an excessive expense.

The owner reserves the right to demand compensation in accordance with general provisions. If the work has been built on the owner's real estate and its dismantling and removal will cause excessive damage, the owner cannot exercise his right to withdraw from the contract.

It is organized as follows. In cases where the conditions are met, the business owner will be able to use one of the above optional rights.

STATEMENT OF DEFECTIVE PERFORMANCE IN WORK CONTRACT

TBK 478 "If the contractor has created a defective work, the lawsuits to be filed for this reason become statute-barred, starting from the delivery date, after two years for works other than immovable structures; five years for immovable structures; and if the contractor has a serious fault, twenty years regardless of the nature of the defective work."