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Culpa in Contrahendo
*
Att. Naciye Yilmaz
A contractual relationship between parties is generally formed
through several stages of negotiations before the conclusion of the con-
tract. During these negotiations, where one party’s behavior is consid-
ered damaging, it is possible to invoke
culpa in contrahendo
. It is
debated by scholars whether or not the concept of
culpa in contrahen-
do
, is included in the well-known and established liability forms of the
Turkish Code of Obligations. In this Newsletter Article, the definition of,
legal characteristics and conditions to establish
culpa in contrahendo
, as
well as precedents, shall be examined.
Definition
Culpa in contrahendo
is not regulated clearly under the Turkish
Code of Obligations No. 6098 (“CO”).
Culpa in contrahendo
originat-
ed in the Swiss and German law systems and was introduced to Turkish
law by scholars and through precedents. The concept is based on a duty
to bargain in good faith, negotiate with care and not lead the other party
to act to its own detriment before the conclusion of the contract. Where
these principles are not respected, compensation shall be due pursuant
to the equity principle.
Turkish scholars agree that the related concept is based on Article
2 of the Turkish Civil Code No. 4721 (“CC”). Article 2 of the CC men-
tions that every person must act in good faith in the exercise of his or
her rights and in the performance of his or her obligations, and that the
manifest abuse of a right is not protected by law.
LAW OF OBLIGATIONS
249
*
Article of April 2014