Journals / Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi / 2018 / Cilt: 20 - Sayı: 2
ROMAN LAW APPROACH TO THE IMPOSSIBILITY OF THE PERFORMANCE IN CONTACTS FOR WORK AND ITS INFLUENCES ON THE TURKISH LAW
- Pages
- 239–305
- DOI
- —
Abstract
In Roman law, contract for work is a specific type of contract called“locatio conductio” and contains obligations arising from lease, employmentand work contracts. The legal characteristic of locatio conductio iscontroversial. According to the prevailing opinion, locatio conducto is acontract 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 ofperformance means a legal or physical impediment that leads tononperformance or the nonconformity of the agreed piece of work. Thisimpossibility may occur before or after the conclusion of the contract. In anevent of subsequent impossibility; if the obligor is at fault, the contractor shallcompensate the loss; if not, the obligatory relationship will be terminated andcontractor will be discharged. When the impossibility occurs without fault, theproblem 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 someothers hold the party ordering work accountable for it, which appears to be aninconsistency. In our opinion, this does not create a contradiction nonetheless,since the aforementioned legal texts regulate such divisions, correspondent tomaterial damage and monetary damage. Conclusively, the problem of passing ofrisk as a result of the objective impossibility of the performance is resolvedwithin the general rule that states, “The injured party whose assets had beenaffected shall bear the risk”.
Özet
Roma hukukunda eser sözleşmesi, locatio conductio adı verilen ve kira,