Türk-İsviçre borçlar hukukunda vekilin özen borcu

Abstract

The procedural intensity that the service performances have evolved being parallel to the legal life in the last 150 years, has made an increase in the importance of the contract of simple mandate as the model contract. In this framework the careless performance of the mandatary's performance obligation, comes often before us as a breach of contarct in the law of mandate and that has given rise to the settling down of the article 390/ I-II of the Obligations Act. As a rule the article 386/ II of the Obligations Act, does not foresee a numerus clausus principle for the contracts with sercice performances; and it does not draw limits to the conglusion of the above said contracts against the rule of type freedom. Art. 390/ I-II, as a general liabilty and care measure provision, does find an obligatory field of application even for the service performance contarcts that can not be accepted as any other contarct types. Care is a criteria of a humanistic behaviour, as a synthesis of extarnal behaviour and an internal period that obliges a person to perform a certain act. In both contractual and tortious liabilities field, the duble nature that it possesses for it's determination of both contractual breach and faulty behaviour, is the last point that the liability concept may reach. The breach of contract just as in the incongruousness of law, appears as a breach of the performance obligation that is determined by taking the highest extarnal and internal care into consideration; the care that is desired when fixing the fault's level, is determined according to the avarage behaviour of an avarage person. Professional fault, as a breach of contarct, is a deviation from the medical science and application rules that are generally accepted. The care obligation that is regulated in the Art. 390/ II of the Obligations Act is a special appearance of care obligations that function in all of the performance obligations. Mandatary's care obligation is added to the labour or service obligation that rises from ordinary mandate contract and it maintains it's full performance. Article 390/ II is a breach of contract just as Article 321/ I. On the contrary Article 390/ I is a fault norm altogether with Article 321/ II. And being as a breach of the mandatary's performance obligation, objective care obligation is determined by deviation from the highest external and internal care. As a rule, it is not possiple to qualify, the performance with the breach of the mandatary's care obligation, as the non-performance of mandate. However if the berach of contract that is caused by the careless act turns out to be a mojor breach of contract; and the acceptance of the action directed towards the consequence can not be anticipated, the mandatary's performance obligation turns into a compensation dept. Art. 390/ I refers to Art. 321/ II which regulates the workers liabilty. Art. 321/ II accepts the subjective care measure for the worker's negligance as fault provision. However for today, in order to blame the worker for the breach of the service contract, the subjective care measure can not find an application for mandate contract and a higher, even an objective leveled behaviour (the avarage behaviour of a professional avarage mandatary's) is desired. The avarage behaviour of a proffesional avarage mandatary's measure, is the lowest care standart. If a mandate has ability, quality, knowladge and experience above this standart, then he has to deviate from the typicalism of the current profession and he has to perform according to the care measure that is required by his expertism and talend. The

care measure is applied to the concrete happening by personalization. The non-liability agreements that the parties will conclude in ordinary mandate contract will be valid, if they are in the frame of the Art. 99. Although the care concept creates difficulties because of it's double nature, the mandator has to prove the mandatary's berach of the objective care measure as a breach of contract in the frame of Art. 96; The mandatary has to prove that he does not have fault in the level of objective negligence measure. The obstacle that arises from the proff liabilty of the mandator, can be solved with the proof easiness that are related to the reversing of the first appearance proof and proof liability.