267 / 521
Lastly, as a third condition, the damage should be resulted from a
faulty behavior.
Framework of the
Culpa in Contrahendo
Liability
Certain liabilities arising from the fault of one of the parties before
the conclusion of a contract are regulated under legal dispositions,
while many such liabilities have been introduced by scholars and court
practices.
As mentioned before,
culpa in contrahendo
is not regulated under
Turkish legislation, however, it is generally accepted that certain lia-
bility dispositions are based on the concept of culpa in contrahendo.
For instance, as per Article 35 CO, a party acting in error and invoking
that error to repudiate a contract is liable for any loss or damage aris-
ing from the nullity of the agreement where the error is attributable to
his own negligence.
Moreover, Article 44 CO regulates that where the principal or his
legal successors have omitted to insist on the return of instruments set-
ting out the authority of the agent, they are liable to
bona fide
third par-
ties for any loss or damage arising from that omission.
Similarly, pursuant to Article 47 CO, where a person having no
representative authority acts as an agent of the principal, any damage
caused by the invalidity of the contract shall give rise to liability.
Situations which may be defined as
culpa in contrahendo
are also
described by scholars and precedents.
For instance, some scholars hold that the party providing mislead-
ing information during the pre-contractual phase shall be responsible
pursuant to
culpa in contrahendo
. Besides, it is also contrary to the
good faith principle and diligence obligation in the pre-contractual
phase to hide information which should be provided to the other party
and to continue negotiations knowing that the subject of the contract is
impossible
4
.
LAW OF OBLIGATIONS
251
4
Oğuzman, Kemal / Öz, Turgut:
Borçlar Hukuku Genel Hükümler Cilt I
, Vedat Kitapçılık,
İstanbul 2011, p. 428.