If there is no written contract between the parties, but there is an unwritten work contract with email correspondence and price offers of the Parties,
CONTRACTOR’S OBLIGATIONS IN WORK CONTRACTS and CONDITIONS OF LIABILITY FOR DEFECT
The most typical element of the work contract, as defined in Article 470 of the TCO, is the “creation of a work” as emphasized in the law. The work is the result of the contractor’s art and skill. Thus, the contractor creates something, repairs or modifies something that has already been created or creates something intellectual. In creating the work, the contractor also undertakes an activity towards the owner.
For a work contract to be established, it is necessary to create a work and to deliver the work after its creation. The delivery of the work is a mandatory element of the contract. In the sales contract, the seller transfers/delivers an existing thing that is usually created by someone else, whereas in the contract of work, the contractor undertakes to create and deliver something that does not exist at the time of the establishment of the contract by adding his labour or to make changes and repairs on an existing thing. In the contract of work, the predominant obligation is to create a work and to expend labour while creating the work subject to performance. In the sales contract, the thing sold, i.e. the material, is at the forefront. The Court of Cassation also accepts the existence of a contract of work in cases where the labour element is at the forefront, and the existence of a contract of sale in cases where the delivery of goods is superior.
Obligations of the Contractor
Obligation to Create the Work (Manufacturing)
With the conclusion of the work contract, the contractor is under the obligation to manufacture. In other words, he must produce the work following the contract and its annexes, the rules of science and art, the expectations of the owner and the legal regulations that must be complied with. Otherwise, the contractor shall not fulfil the work by the contract and shall not be entitled to the price in the contract.
Duty of Care and Loyalty
Article 471/1 of the TCO stipulates that the contractor is obliged to fulfil the obligations undertaken with loyalty and diligence, observing the rightful interests of the owner. In the second paragraph of the same article, it is stated how the contractor’s liability arising from the duty of care shall be determined. Accordingly, it is stated that the behaviour by the professional and technical rules that a prudent contractor undertaking works in a similar field should show will be taken as a basis.
The duty of care is, to make a careful effort like a prudent merchant and a competent contractor while creating and delivering the work. Failure to complete the work in due time, defective and incomplete performance, and failure to remedy defects within the warranty period are behaviours contrary to the duty of care.
The duty of loyalty means doing what is in the best interest of the business owner and refraining from doing what is to his detriment.
Obligation to Perform the Work by Himself or Under His Management
The contractor shall be obliged to perform the work directly himself or to have it performed under his management. However, if the personal characteristics of the contractor are not important in the creation of the work, he may also outsource the work to others.
Obligation to Provide Tools and Equipment
Aksine âdet veya anlaşma olmadıkça yüklenici, eserin meydana getirilmesi için kullanılacak olan araç-gereçleri kendisi sağlamak zorundadır (TBK m. 471/son).
Material Obligations
Materials are the substances remaining in the work that are used in the creation of the work and the construction of the work. Since they remain in the body of the work, they become an integral part.
Article 472 of the TCO regulates the material. According to this article
If the material is provided by the contractor, the contractor shall be liable to the owner for the defective material in the same way as the seller.
There is no special provision in this article regarding the quality of the material to be used, other than not being defective. In this regard, Article 86 of the TCO, which is in the general provisions, should be consulted. Accordingly, unless otherwise agreed in the contract, the contractor has the right to choose the quality of the material to be used. However, the material to be selected cannot be lower than the average quality. In the event of a dispute between the parties regarding the quality of the material used, the contractor’s use of the average material should be taken into consideration.
Duty to Warn (General Duty to Warn)
The general notice obligation is regulated under Article 472/3 of the TCO. Accordingly, if, during the performance of the work, it is discovered that the material provided by the owner or the place indicated by the owner for the performance of the work is defective, or if any other situation arises that may jeopardize the proper or timely performance of the work, the contractor is obliged to immediately notify the owner of the work; if he fails to do so, he shall be liable for the consequences arising therefrom.
The general notice obligation is a requirement of the contractor’s duty of loyalty. The contractor’s duty of notice may arise as a result of the fact that the materials provided by the owner, the delivered work area, and the land shown by the owner are not suitable for the creation of the work or the proper performance of the work, or as a result of the instructions of the owner. For the contractor to be released from liability in such cases, he must have fulfilled his duty to warn the owner. Otherwise, the contractor shall be liable for the damages arising under Article 112 of the TCO.
If the owner of the work instructs the contractor to continue the work, to perform the work using the materials he has provided, and to perform the work in the place and land he has shown, although the contractor has notified and warned that the materials, land and the place shown for the construction of the work are defective and not suitable for the construction of the work by science and technique, the contractor shall not be liable for the damages arising from the defective materials in the work, the defective land and the defective place where the work will be performed. In other words, the contractor cannot be held liable if the owner insists on his/her instructions, despite the fulfilment of the general notice obligation, which means the notification to the owner that the work cannot be completed following the rules of science and art and technique and the purpose expected by the owner. In this case, the burden of proof belongs to the contractor.
For this reason, the contractor who constructs the work contrary to the approved project and zoning without warning to the owner cannot be entitled to the work price. He is also responsible for the resulting damage. Although the contractor may ask for the work price for the legalization of the construction; in case of failure to do so, the owner may ask for the elimination of the project and zoning violation, including demolition.
For the contractor to be deemed to have fulfilled its duty to warn, it must sufficiently enlighten and warn the owner of the work in terms of content and form about the inaccuracy of the orders and instructions it has given.
Again, as a result of the general obligation of notice, the contractor is obliged to notify the owner of the work in the event of the occurrence or realization of reasons or events that will make it difficult or delay the completion and delivery of the work within the time limit and that develop beyond the will of the parties. In terms of ease of proof, it will be advantageous for the contractor to make the notice in writing.
Obligation Regarding Commencement and Execution of Work
The contractor is obliged to start the work at a time to be determined according to the nature of the work agreed in the contract and to deliver it under the terms of the contract.
This obligation is regulated under Article 473 of the TCO. Accordingly, if the contractor fails to start the work on time or delays the work in violation of the provisions of the contract, or if it is clearly understood that the contractor will not be able to complete the work at the agreed time according to all estimates due to the 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 set for delivery.
If, during the execution of the work, it is apparent that the work will be defective or in breach of the contract due to the fault of the contractor, the owner may, within a reasonable period to be given or caused to be given by him to prevent this, notify the contractor to remedy the defect or breach; otherwise, the repair or continuation of the work shall be entrusted to a third party at his own expense and expense.
Obligation to Deliver the Work
The obligation to deliver the work is regulated in the TCO. However, it is accepted in the doctrine that the law-maker implicitly accepts this main obligation from the regulations made in Articles 473/1, 474/1, 478, 479/1,2, and 483/1 of the TCO. Since the contractor will have fulfilled his obligation with the delivery of the work, delivery is one of the main obligations of the contractor. The contractor’s obligation to create the work is completed with the delivery of the work.
Delivery of the work is the transfer of the work completed by the contractor into the actual possession of the owner to perform the contract.
As a rule, it is the contractor’s responsibility to prove that delivery has been made and that he is entitled to remuneration. Since delivery is a material fact, it can be proved by all kinds of evidence, including witness statements.
The fact of delivery is a fact that has important consequences in contracts of work. Under Article 474/1 of the TCO, the period of inspection and notice for obvious defects and the statute of limitations under Article 478 shall commence after the delivery, and according to Article 479, the work owner’s obligation to pay the price shall become due upon delivery. Again, the price for the elimination of deficiencies and defects in the work shall be determined by taking into consideration the reasonable period starting from the delivery.
Conditions of the Contractor’s Liability for Defects
In work contract relations, a defect is the absence of certain qualities that should be present in the work according to the contract and its annexes and the purpose expected by the owner. Or it is defined as the presence of some defects that should not be present.
Incomplete work and defective work are different concepts and have different consequences. For this reason, it must first be determined whether the reported defects in the work are incomplete or defective work. After this determination, the legal consequences should be applied accordingly. Article 475 of the TCO sets forth the rights of the owner in case of defect. In addition to the optional rights listed in the said article, it is accepted that the owner has the right to compensation according to the general provisions. For the contractor to be held liable for defects, the following conditions must be met.
The Work Must Have Been Delivered
Completion and delivery of the work is one of the main obligations of the contractor. The contractor shall not be liable for defects in the work that has not been completed and delivered. After the delivery of the work, the obligation to inspect and notify about the defects has been introduced. It follows from this that the work must first be delivered for the contractor to be liable for defects. The proof of the delivery of the work also belongs to the contractor.
The Delivered Work Must Be Defective
Defective work constitutes a breach of contract. Defects may be overt and covert as well as material and legal defects.
Obvious defects are defects that can be seen and detected as a result of inspection and inspection within a reasonable time after the delivery of the work.
Hidden defects, on the other hand, are defects that are not revealed by a simple check and inspection, but are revealed after the start of use.
Tangible defects are defects that are visible and felt by the senses, whether they are obvious or hidden. Apart from this, some defects are invisible to the eye but are recognized by the other party because they have not been made. Examples can be: failure to have the project approved, and failure to obtain a certificate of occupancy. Material and legal defects are defects that must be notified to the contractor, just like open and hidden defects.
The Defect Must Not Be Caused By The Employer
Article 476 of the TCO stipulates that ‘If the defective work is caused by the instructions given by the owner of the work, despite the explicit warning of the contractor, or if it can be attributed to the owner of the work for any reason, the owner of the work cannot use his rights arising from the defective work’. If the defect is caused by the owner, the instruction given by the owner or a reason that can be attributed to the owner, the owner cannot exercise his optional rights arising from the defect.
If the defect arises as a result of the implementation of the instructions given by the owner, the owner is at fault. However, for the contractor to be liable for the defect, he must prove that the instruction was not correct. In addition, the contractor must have clearly warned the owner that the work would be defective if the instruction was carried out, explaining the consequences, and must have proved this.
Again, in cases where the defect arises due to any reason that can be attributed to the owner of the work, such as the materials provided by the owner of the work are not of good quality, the land shown by the owner of the work is defective, the contractor must warn the owner of the work clearly and in a way to reveal the consequences, and if he proves this and the owner of the work insists on the construction of the work at the specified location, with the materials provided and supplied, he will not be liable for the defect that will arise.
If the defect in the work arises from any cause attributable to the owner, Art. 476 of the TCO states that, in addition to the wrongful instruction of the owner, in general, the owner may not exercise his rights arising from the warranty against defects in the work if the defect in the work can be attributed to the owner for any reason. In this context, in practice, the defect in the work is mostly caused by the defect in the material provided by the owner or the place provided by the owner for the construction of the work. If the material provided by the owner or the place provided by the owner is not suitable for the creation of the work without defects, it is said that these are defective; the unsuitability of the material may be either due to its type or its quality. If the work is defective due to defective materials or the place provided by the owner, as a rule, the owner cannot assert against the contractor the right of rescission (and other optional rights) arising from the defect. If the contractor does not want to be held liable for defects in the work if the material or the land is defective, he must notify the owner of the defects in the material or the land without delay; in other words, he must clearly warn the owner of the defects. The obligation of the contractor to notify the owner of the defects in the material provided by the owner or in the land provided by the owner is based on the obligation to notify under Article 472/3 of the TCO. The contractor who fails to fulfil this warning obligation shall be liable for the defect in the work.
The Defect in the Work arises from the Instruction of the Owner
Article 476 of the TCO regulates as a special case that the defect may be attributed to the owner. The owner may give instructions to the contractor, which the contractor is obliged to comply with according to the content of the work contract. The binding instructions given by the owner to the contractor may be in writing or verbally. In addition, the instructions may be given by the owner personally or through his authorized representative. For the contractor not to be liable for defective performance under Art. 476 TCO, it is not sufficient for the defect to have arisen from the wrongful instruction of the owner; in addition, the owner must insist on compliance with the instruction given by the contractor despite being explicitly warned by the contractor. The content of the contractor’s warning is the notification that the instruction given by the owner is incorrect and that the work may be defective if this instruction is followed. The warning must be made explicitly. The warning is not subject to any formal requirements; it may be made in writing or orally, but it must be made in such a way that the owner is aware of the danger that the work may be defective. However, if it is clear that the warning will be generally useless and the owner will insist on his instructions, and if the contractor can prove this fact, the warning requirement should no longer be required. Furthermore, the warning must be given by the contractor or his authorized representative to the owner or his authorized representative. After fulfilling the obligation to warn, the contractor must wait for an appropriate period, according to the rule of good faith, to see whether the owner will insist on his instructions; if the owner insists on his instructions, the contractor shall not be liable. Furthermore, the warning must be given by the contractor or his authorized representative to the owner or his authorized representative.
Failure of the Owner to Fulfil the Obligation to Inspect and Notify the Work
Article 474/1 of the TCO expresses this obligation as follows: ‘The owner is obliged to inspect the work as soon as he has the opportunity in the ordinary course of business after the delivery of the work and to notify the contractor of any defects within a reasonable time’.
As it is known, obvious defects are defects that can be seen and detected by a simple inspection and with the naked eye. In case of obvious defects, the owner must inspect the work in the ordinary course of business after the delivery of the work. He is obliged to identify the defects, if any, and to notify the contractor of the defects, if any, within an appropriate period.
Either party may, at its own expense, have the work determined by an expert report through a court.
If the owner of the work neglects the obligation to inspect and notify in case of obvious defects, he is deemed to have accepted the work according to Article 472/2 of the TCO. In this case, the contractor is relieved from liability for obvious defects.
Hidden defects, on the other hand, are defects in the work that cannot be detected by simple inspection, cannot be seen and detected by the naked eye, arise during use or arise due to the situation that develops during use. There is no regulation regarding the obligation to inspect and report these defects within a reasonable time as stipulated in Article 474/1 of the TCO. However, under Article 474/3, if the defect in the work is discovered later, the owner of the work is obliged to notify the contractor without delay, and if he fails to do so, he shall be deemed to have accepted the work as it is, thereby imposing an obligation on the owner of the work to notify the contractor of the defect as soon as it is discovered.
The TCO does not regulate the manner of notifying the contractor of open and hidden defects. Although the written notice of defects provides ease of proof, since it is a material fact and not a legal transaction, it is accepted by the jurisprudence of the Court of Cassation that the notice of defects shall be proved by all kinds of evidence, including witness statements, even if the parties are merchants, unless otherwise agreed in the contract or the annexed specifications.
The existence and notice of the defect is not an objection that the court will automatically take into consideration. It is a defence that can be evaluated if it is duly asserted by the parties. For this reason, the court cannot automatically take into consideration whether the work is defective or not, or whether the notification was made within the time limit or not, unless it is duly asserted by the parties in due time.
As a rule, in defective manufacturing, the owner of the work must inspect and notify for obvious defects and notify without delay of hidden defects. However, in the contract, the contractor may have given a guarantee in terms of defects related to the work and the work. Regarding the defects detected during the warranty period, the work owner may exercise his rights arising from the defect within the statute of limitations without having to be notified separately.
Lack of Explicit or Implicit Acceptance of the Work by the Owner
Article 477 of the TCO: ‘After the express or implied acceptance of the work, the contractor shall be released from all liability; however, he shall continue to be liable for defects which were deliberately concealed by him and which could not have been detected during a proper inspection.
If the owner neglects to review and give notice, they are deemed to have accepted the work.
If the defect in the work is discovered later, the owner is obliged to notify the contractor without delay; if he fails to do so, he is deemed to have accepted the work’.
Delivery and acceptance of the work are separate concepts. Delivery of the work refers to the delivery of the movable property to the owner of the work. In the case of immovable property, it is the transfer of possession or the removal of the conditions preventing its use by the owner. With the delivery of movable or immovable works, the contractor performs the work. However, he is not relieved of his contractual responsibilities. The contractor is relieved of liability with the explicit or implicit acceptance of the delivered work. The liability for latent defects shall continue after the delivery despite the express or implied acceptance. The contractor’s liability for hidden defects shall continue until the contractor is notified without delay upon the occurrence of the hidden defects, and in case of failure to notify without delay in the case of hidden defects, the work shall be deemed to have been accepted by the owner, and the contractor shall be released from the liability for hidden defects.
There is a contract of work between the parties and the statute of limitations for defects in contracts of work is 5 years. It is necessary to determine whether the Plaintiff is at fault for the defect and the Plaintiff’s, i.e. the Contractor’s, contractual performance obligations and the conditions of liability for the defect. It is necessary to determine whether the Plaintiff is at fault for the defect and the Plaintiff, i.e. the Contractor’s contractual performance and obligations and the conditions of liability for the defect.
Article 476 of the TCO states that ‘If the defective work is caused by the instructions given by the owner of the work, despite the explicit warning of the contractor, or if it can be attributed to the owner of the work for any reason, the owner of the work cannot exercise his rights arising from the defective work’. If the defect is caused by the owner, the owner cannot exercise his optional rights arising from the defect. If the contractor does not want to be held liable for the defects that may occur in the work if the material or the land shown is defective, he must notify the owner of the defects in the material or the land without delay; in other words, he must warn the owner of the defects. The contractor who fails to fulfil this warning obligation shall be liable for the defect in the work. For the contractor not to be liable for defective performance under Article 476 of the TCO, the warning given by the contractor to the owner must be based on the knowledge that the instructions given by the owner are incorrect and that the work may be defective if this instruction is followed. The warning is not subject to any formal requirements; it may be made in writing or orally, but it must be made in such a way that the owner is aware of the danger that the work may be defective. However, if it is clear that the warning will be generally useless the owner will insist on his instructions and the contractor can prove this fact, the warning requirement should no longer be required. As we have explained in detail above, as per Article 476 of the TCC, the defect must not be caused by the owner. If the defective work arises from the instructions given by the owner, despite the explicit warning given by the contractor, or if it can be attributed to the owner for any reason, the owner cannot exercise his rights arising from the defective work.
If there is not a written notification made by the Owner Company to the Contractor Company about the missing works, according to the unwritten work contract between the parties, in cases where the Contractor does not perform incomplete and defective work, and the owner of the work does not fulfil the obligation to notify the Contractor of the defect or incomplete performance to the Contractor in any written or unwritten manner, that is, in cases where the owner of the work does not notify the contractor due to any defect or incomplete work, it should be accepted that the Contractor has no defect related to the work undertaken.
