WORK CONTRACT
The work contract regulated under Article 470 of the TCO is defined as “a contract in which the contractor undertakes to create a work and the owner undertakes to pay a price in return. It is defined as follows.
The scope of the relevant definition includes not only the creation of a new work, but also the alteration, repair, maintenance or removal of an existing work.
1)Legal Nature of the Contract of Work
a) A contract of work is a contract that imposes obligations on two parties.
With the conclusion of the contract, the contractor is obliged to create a work, while the owner is obliged to pay a price for this work.
b) The Contract of Work is a contract based on consent
The work contract is established by mutual and compatible declarations of will.
c) Contracts of work do not give rise to a continuous debt relationship
A long period of time between the conclusion of the contract and the performance does not change this situation.
2) Elements of the Contract of Work
a) Creating a Work
In a contract of work, the contractor’s obligation to create a work is the result of performance. The creation of the work is the primary obligation of the contractor in this contract. A work is created as a result of the work that the contractor is obliged to perform.
This work is the result of a tangible or intangible work. The work that is the subject of the work contract may be in the form of work on an existing work or the creation of a new work.
b) Fee Payment Obligation
The obligation to pay the price is the principal obligation of the owner in the contract of work. The price does not have to be determined in advance. However, a price must be paid in return for the work done. Otherwise, there cannot be a contract of work. This price shall be determined by mutual agreement, as well as according to the value of the works at the place and time of the work and the costs and expenses incurred by the contractor while creating the work.
c) Agreement between the Parties
A contract of work is a consensual contract. There must be mutual and appropriate declarations of will. Although the contract is not subject to a certain form requirement, it may also be concluded with a closed declaration of will. However, the legal nature of construction contracts in return for land shares is a mixed contract. These contracts contain a promise to sell immovable property. This means that at the end of the contract, a certain land share is transferred to the contractor who realizes the construction. In other words, these contracts contain a promise to sell immovable property. The promise of sale of immovable property is subject to official form. This condition is a condition of form and contracts that are not made in accordance with the condition of form are invalid. These contracts can be executed by the land registry offices or notary public in the form of ex officio issuance.
OBLIGATIONS OF THE CONTRACTOR
- Obligation to Execute the Work Under Itself or Under Its Management
The contractor has two primary obligations in contracts of work: To create the work that is the subject of the contract and to deliver this work. The duty of care to be observed while creating this work is an ancillary obligation.
It is possible for the contractor to perform the work personally or under his own will. According to Article 471/3 c.2 of the TCO,“However, if the contractor’s
personal characteristics are not important in the creation of the work, he may have the work done by someone else. As it is understood from the provision, if the personal characteristics and skills of the contractor are important in the creation of the work, then he must do the work himself. There is an obligation of personal performance.
If the contractor is going to have the work done under his own will, then he is obliged to be careful in the selection of those who will do the work, to give the necessary instructions and to supervise the requirements of the work.
Within the scope of TCO 471/2 c.2, if the contractor subcontracts some or all of the work, a subcontracting relationship will arise. In this case, the contract between the main contractor and the subcontractor is called a subcontracting contract, while the contract between the main contractor and the owner is called the main contract. In a subcontracting agreement, the main contractor performs the relevant work on its own behalf and account, not on behalf of the owner. Here, the subcontractor is a performance assistant who works independently of the main contractor and is not subject to its management and supervision.
A subcontracting agreement is an independent contract from the main contract in terms of its content and establishment. However, the two contracts may be established in connection with each other with the will of the parties.
It should be noted here that there is no contract of work between the principal and the subcontractor. The subcontractor has undertaken to create the work to the main contractor, not to the main employer. For this reason, the principal cannot demand the subcontractor to produce and deliver the work. The principal employer may only claim against the subcontractor by applying to the provisions of tort.
Likewise, since there is no contract between the subcontractor and the principal contractor, the principal contractor has no obligation to pay a price to the subcontractor.
Under which conditions will the principal employer be able to apply directly to the subcontractor?
-If the subcontractor has undertaken to the principal employer that it will perform in full and on time what the principal contractor has assigned to it
-Another way is that the contract concluded between the subcontractor and the main contractor is a “contract for the benefit of a third party” made for the benefit of the main contractor.
Is it possible for the subcontractor to apply to the principal employer for the compensation to which it will be entitled as a result of the work?
-The main contractor has agreed to be jointly and severally liable with the main contractor against the subcontractor
-Or, in the event that the main contractor is a guarantor against the subcontractor, the subcontractor may also claim its receivable from the main employer.
2) Obligation to Provide the Tools and Equipment to be Used for the Creation of the Work
According to TCO 471/4 ” Unless there is a custom or agreement to the contrary, the contractor is obliged to provide the tools and equipment to be used for the creation of the work.” As can be understood from the provision, an agreement to the contrary may also be made.
3) Material Supply Obligation
When Article 472 of the TCO is examined, it is possible for the materials to be provided by both the contractor and the owner.
In the event that the materials required for the performance of the work are provided by the owner, the contractor shall be obliged to use and maintain these materials with care and to return any surplus.
Likewise, the contractor is obliged to notify the owner if there is a defect in the materials provided or if there is a problem that will significantly prevent the work from being carried out.
4) Duty of Care and Loyalty
Pursuant to Article 471/1 of the TCO, “The contractor is obliged to fulfill the obligations undertaken by him with loyalty and diligence, taking into
consideration the rightful interests of the owner. In the continuation of the same article, “In determining the responsibility of the contractor arising from the duty of care, thebehavior
in accordance with the professional and technical rules that a prudent contractor undertaking
works in a similar fieldshould show is taken as basis. The scope of the contractor’s duty of care has been determined with the provision.
The scope of the contractor’s duty of care is the appropriate behavior that can be expected from a prudent contractor undertaking the same work.
5) Obligation to Start and Continue Work on Time
If the contractor does not start the work on time or delays the work, or if it is understood that the work will not be completed on the agreed day due to the delay of the work for a reason not caused by the owner, the owner has the right to rescind the contract.
However, there are conditions for the right of return; the work must not be started on time, the performance of the work must be delayed in violation of the contract, these delays must be such as to prevent the completion of the work on the specified date and there must be no justifiable reason for the delay.
6) Obligation to Deliver the Work
The mere creation of a work by the contractor does not end his contractual obligation; he must also deliver the relevant work to the owner. If the work is not completed, the owner is not obliged to accept the performance of the completed part.
