Hukuk Fakültesi Koleksiyonu

Permanent URI for this collectionhttps://hdl.handle.net/20.500.11779/1935

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Institution Author: search.filters.institutionAuthor.Başoğlu, BaşakLanguage: search.filters.language.en

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Now showing 1 - 5 of 5
  • 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 Berk
    The 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 Berk
    Children 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 Berk
    Turkish 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
    Property Transfers as Security
    (2016) Kapancı, Kadir Berk; Başoğlu, Başak
    Under 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, Başak
    In 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.