Hukuk Fakültesi Koleksiyonu
Permanent URI for this collectionhttps://hdl.handle.net/20.500.11779/1935
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Article The Impact of Force Majeure on Contracts for the International Sale of Commercial Goods Under Art. 79 of the CISG(Istanbul Universtiy Press, 2025) Başoğlu, Başak; Kapancı, Kadir Berk; Kapancı, Kadir BerkThe United Nations Convention on Contracts for the International Sale of Goods (CISG) aims to harmonise inter0 national trade law by providing unified rules for sales contracts across its 970member countries, as of April 2025. Despite its wide adoption, the CISG’s approach to non0performance and liability differs markedly from domestic legal systems, particularly those based on civil law traditions. The CISG provides that the debtor failing to perform their obligations must compensate for the loss, unless exempted under Article 79, which introduces the concept of “impediment beyond the debtor’s control” as a basis for exemption. For this exemption to apply, the impediment must be unforeseeable, unavoidable, and the direct cause of the failure to perform. However, these criteria make its application rare in practice, while its requirements have been satisfied in only a limited number of cases. This study examines Article 79 CISG in detail, exploring its stringent criteria and the challenges it presents in practice. Furthermore, the paper will assess Article 79’s effectiveness in addressing force majeure and hardship scenarios, despite the absence of explicit references to these concepts within the CISG text.Book Part The rights of the child in Turkey(Springer, 2022) Başoğlu, Başak; Kapancı, Kadir BerkChildren are the core element and the future of a society. However, they are also relatively weak and thus need to be specially protected. Turkish private law, in line with the United Nations Convention on the Rights of the Child, provides a variety of rights to children. The basic rights of the children are regulated under the Turkish Civil Code of 2002. Furthermore, the Turkish Labor Code of 2003, Turkish Penal Code of 2005, Turkish Criminal Procedural Code of 2005, Child Protection Code of 2005 and the Law on the Protection of the Family and the Prevention of Violence Against Women of 2013 also provide special rights and protective measures for children. Accordingly, this paper aims to present an overview of children’s basic rights and the protection mechanisms for children under Turkish Civil Code.Conference Object A bridge “Maybe” too far: Granting legal personality to animals?(University of Antwerp, 2021) Başoğlu, Başak; Kapancı, Kadir BerkTurkish legal system, like all other legal systems is developed by persons and thus, the >main distinction is made between persons and objects (persona and res). According to thistraditional distinction, animals which are not humans but being “other” species in our World,have mostly been considered as objects and thus subject to personal property. In these personorientedlegal systems, including the Turkish one, even the rules relating to animals essentiallyaims to protect the owner of the animals, but not the animals themselves.However, today this paradigm is slowly challenged as “right to life” (to some extent) isgranted to animals under many legal systems (for instance under the Turkish Law on Protectionof Animals dated 24 June 2004). Nevertheless, the boundaries of this right are the interests ofthe people. Unfortunately, the concepts of animal dignity and right to life do not provide enoughprotection to animals. But what could be the solution to better protect the animals? Grantinglegal personality to the animals? Perhaps it is a bridge too far…Throughout the history, personality have been granted to different objects if it isbeneficial and feasible to do so. Accordingly, this paper firstly aims to evaluate whether it isbeneficial and feasible to grant legal personality -partially or as a whole- to the animals. Underthis first sub-title we will discuss as well whether granting to each and every animal a separatepersonality or a sole conceptual one to the entire nature including the animals. Secondly ourwork further targets to reconsider the traditional distinction of persons and things to provide amore specific legal status for animals. Perhaps such a reconsideration could enable us to solveanother controversial issue of our contemporary world: that is the legal status of “strong”artificial intelligence. Moreover, our discussions will comprise the analyse of the legal statusof the “ancient roman law’s slave”, considered as an object though a human being, benefitingfrom different types of legal protection at different levels, at different times. Across the saidcomparisons, at the end, we would like to reach a robust conclusion.Conference Object General Risk Liability Under the Turkish Code of Obligations and Its Implications in Insurance Law: Is It a "frankenstein's Monster"?(Koç Üniversitesi, 2021) Kapancı, Kadir Berk; Başoğlu, BaşakRisk liability is the strongest of all types of non-contractual liabilities. It is a strict liabilitywhere demonstrating that there is no causality is the only way to be exempted. Therefore, risk liabilitycan never be considered without insurance. This type of liability is usually regulated for specific typesof risks. So, there is always a typical risk defined for a particular operational activity which may causeunavoidable frequent or severe damage, regardless of how much due care is taken.In 2012, Turkish Code of Obligations has introduced a new general clause on risk liabilitywhich is applicable to all kinds of dangerous activities without defining the specific type of risk (art.71). According to this provision, liability could be established if it is demonstrated that an activity ofan enterprise causes an inevitable and significant danger. The said provision is stipulated as follows:“When damage occurs from the activity of an enterprise presenting a significantrisk, the owner of such enterprise and, if any, the operator are severally liable for suchdamage.Considering the nature of the enterprise or materials, tools or powers used in theactivity, if one concludes that an enterprise is likely to cause frequent or severe damageeven if all due care expected from a specialist in such activities is exercised, suchenterprise is deemed to present a significant risk. Particularly, if a special risk liabilityis envisaged in any other law for enterprises presenting the similar risks, such anenterprise is also considered to present a significant risk.Special provisions governing liability for a specific risk are reserved.Even if such activity of an enterprise presenting a significant risk is permitted bythe legal order, those who are injured may claim to balance out the damage caused bythe activity of such enterprise at an appropriate price.”This clause was originally inspired from the article 50 of the Swiss Draft Project for theReform and Unification of Tort Law (Widmer-Wessner Draft Project) but ended up as the“Frankenstein’s monster” as it has not considered this Draft Project in its entirety. At the end, thisprovision has widened the liability of owners and operators of enterprises which presents a significantrisk. But to what extend?The highly debated answer to this question is of utmost importance to set the boundaries ofinsurance. In order to answer this question, one must firstly evaluate the criteria used for assessingthe risk and also the meaning of its vague final paragraph. Accordingly, this paper aims to understandthe rationale for this provision, to evaluate the legal debates regarding the conditions and scope ofliability under this provision and its implications on both tort law and insurance law. Furthermore,this paper intends to discuss the possible role of a general risk clause in our times of climate crisis.So, in a nutshell, the ultimate question of this paper is whether this provision is the “Frankenstein’smonster” or a gateway for climate liability?Conference Object Property Transfers as Security(2016) Kapancı, Kadir Berk; Başoğlu, BaşakUnder Turkish law, property transfer is a common type of security used an alternative to collaterals. Accordingly, reservation of title and fiduciary transfer are two types of mechanisms to use property transfer as a security. Reservation of title is a security mechanism only for the movables and codified in articles 764-765 of the Turkish Civil Code. Accordingly, transferor and transferee may agree on a reservation of title, so that the ownership of the movable shall remain with the transferor until the transferee fulfills his obligations. Agreements for reservation of title may be made either with conditions precedent or conditions subsequent. Both are subject to special form requirements. Fiduciary transfer is a security mechanism for both movables and immovables in order to guarantee a monetary debt. It is not regulated under the law, but developed in Turkish practice upon the influence of Swiss law. Accordingly, transferor and fiduciary may agree on the transfer of the assets to the fiduciary while usually the possession of the assets remain with the transferor until the transferor fulfills his obligations. Agreements for fiduciary transfer are subject to conditions subsequent.The aim of this paper is to analyze the necessities and the advantages for and the risks of invoking such mechanisms in comparison to collaterals. Furthermore, this paper aims to compare these mechanisms with their equivalents in Swiss, German and French laws and especially compare fiduciary transfers with trusts in common law.Conference Object Close Link Between the Right To Specific Performance and Penalty Clauses: a Comparative Approach(2017) Kapancı, Kadir Berk; Başoğlu, BaşakIn a contractual relationship, the debtor is liable for a full and due performance. Furthermore, the parties can also agree on a penalty clause to be performed, in case where the obligation is not diligently performed. Penalty clauses are side-agreements enlarging the scope of liability of the debtor by establishing a penalty to be paid in case of breach of contract. These clauses, thus guarantee the performance by creating pressure on the debtor. These penalties are awarded even if there is no damage. On the other hand, penalty clauses are to be separated from liquidated damages clauses which are also side-agreements aiming to estimate damages in case of a possible breach of contract. In other words, such clauses simply aim to measure damages that are hard to prove once incurred. Liquidated damages clauses can easily be enforced by the courts in both civil and common law countries. However, this is not the case for penalty clauses.