In Roman law, contract for work is a specific type of contract called
“locatio conductio” and contains obligations arising from lease, employment
and work contracts. The legal characteristic of locatio conductio is
controversial. According to the prevailing opinion, locatio conducto is a
contract that responds to the need of a duty that renders the use of the property.
In the contract for work, which falls under locatio conductio, impossibility of
performance means a legal or physical impediment that leads to
nonperformance or the nonconformity of the agreed piece of work. This
impossibility may occur before or after the conclusion of the contract. In an
event of subsequent impossibility; if the obligor is at fault, the contractor shall
compensate the loss; if not, the obligatory relationship will be terminated and
contractor will be discharged. When the impossibility occurs without fault, the
problem of passing of risk will come into existence. In some Roman legal texts,
contracts for work is arranged as if the contractor bears the risk; yet some
others hold the party ordering work accountable for it, which appears to be an
inconsistency. In our opinion, this does not create a contradiction nonetheless,
since the aforementioned legal texts regulate such divisions, correspondent to
material damage and monetary damage. Conclusively, the problem of passing of
risk as a result of the objective impossibility of the performance is resolved
within the general rule that states, “The injured party whose assets had been
affected shall bear the risk”.
Primary Language | Turkish |
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Journal Section | Articles |
Authors | |
Publication Date | December 21, 2018 |
Submission Date | October 8, 2018 |
Published in Issue | Year 2018 Volume: 20 Issue: 2 |
Dokuz Eylül University Law Review
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https://dergipark.org.tr/tr/pub/deuhfd/contacts