In the construction agreements, -in general terms in the agreements of work- when the construction (the work) is delivered; if the 474th article of Turkish Code of Obligations regarding to the provisions of notice is not followed; defective product shall be deemed as acceptance by the jobholder and the jobholder shall not use the rights recognized by the law arising from the defect. In this respect, it is of great importance to comply with the legal procedures and principles in the delivery of the construction by the owner and in the subsequent process. Otherwise, it is highly probable that great loss of rights will arise.
In this study, we will cover the procedures and principles that should be considered after the delivery of the construction in the form of questions and answers below.
1- What is a Defect?
Defect; distinguishes itself as the absence of the mentioned qualifications or necessary qualifications in the work.1 If the required qualifications in the work are not shown in the contract and a sample is not given in this regard, the contractor must be involved in the manufacture by interpreting the contract in accordance with Civil Law.art.2, taking into account the place where the work will be used.2
In terms of notice, defects are divided into two as clear defect and hidden defect.
2- What is an obvious Defect?
Obvious defect; These are the defects that can be seen and detected with a simple inspection and with the bare eye. In other words, a obvious defect is a defect that can be easily seen or understood by inspection at the time of delivery of the work to the jobholder. To set an example of an obvious defect, based on the judicial decisions; not using first class workmanship and material 3 while doing joineries, plasters, paints and whitewashes, is defined as obvious defect. The issue of whether a defect is obvious or hidden defect is evaluated according to the conditions of each concrete case.
3- What is the inspection and notification period for obvious defects? From what date does this period begin? What are the consequences of not fulfilling the burden of notification and inspection within the mentioned period?
In case of obvious defects, in accordance with the 477th article 2nd paragraph of Turkish Code of Obligations; after the delivery of the work; the jobholder shall detect and notify the contractor, according to the ordinary course of business, and the work must be rewieved, any clear defects shall be identifed within the appropriate time. As in the old Code of Obligations, the inspection and notice periods are not clearly defined in the new Code of Obligations. The durations will be different according to the nature of the bussiness, the feature of the event, and the size and width of the manufactured thing and will be determined by the experts. 4
The delivery of the work is important, and if the work is not delivered, the defect inspection period and notice period specified below will not begin. The contractor must have completed all the work undertaken for the delivery to be considered as completed,5. Therefore, even if the jobholder moves into the house before all the works are completed, this is not necessarily a criterion that shows that the delivery has been made.6 However, in any case, in order to avoid any loss of rights for the jobjolder, it is recommended that the jobholder initiates the inspection and notification process as soon as they have possession of the work.
How long the inspection will take after it starts is determined according to the good faith. 7Inspection and revision can be done by the jobholder themself, or it can be determined and specified by an expert report through the court in accordance with Article 474 /II of the Turkish Law of Obligations. At this point, our advice is as follows: As soon as the jobholder receives the work, they should start the inspection process of the work as soon as possible, if they are not an expert of the work; expert engineers should be selected and the inspection process of the work should be started. The jobholder can also carry out this inspection through the experts assigned to the file of the application for detection of evidence by the court. In fact, this is what is meant by Article 474/II of the Turkish Law of Obligations, that is, the jobholder applies to the court to have the work inspected and the situation to be determined. Otherwise, the jobholder can have the building inspected by a specialist without the need for this provision.8 However, differently, in Article 474/II of the Turkish Law of Obligations, the expert will be officially appointed by the court.9 If the jobholder has applied to the court for the inspection of the work in accordance with Article 474/II of the Turkish Law of Obligations, the late submission of the report of the expert appointed by the court should not lead to the claim that the inspection burden was not fulfilled on time.10 However, if the jobholder has not applied to the court for the examination of the work and has appointed a special expert for the examination, the employer must bear the risk of losing their right if the expert appointed by them is delayed.11 If the nature of the work performed is complex and extensive, notification without waiting for the completion of the inspection is appropriate.12 As a result, in case of clear defects, if the jobholder neglects their obligation to inspect the work and does not report the defects in the reasonable time, they will accept the work - which saves the contractor from clear defects. The jobholder cannot demand or claim against the contractor for clear defects.
4- What is a Hidden Defect?
Hidden defect; defects that cannot be detected by a simple inspection, that cannot be seen or detected with the bare eye, that occur during usage or that occur due to a situation that develops during usage. Hidden defects are excluded from the inspection obligation of the jobholder. They are subject to notification only when they appear in the future. Due to its nature, hidden defects emerge after the structure has been used for a while or with the passage of time even if it is not used.13 To give an example of a hidden defect; spills and sagging in the paint applied on the factory ceiling over time considered as; hidden defects.14
5- How long is the notice period for Hidden Defects? What is the result of not reporting a hidden defect within the notice period?
According to Article 477/III of the Turkish Law of Obligations; if the defect in the work is emerged later, the jobholder must inform the contractor about the situation without delay, otherwise the work will have accepted with hidden defects. Once the jobholder is aware of the hidden defect, they should not wait until they have an absolute opinion about their importance and scope.15
6- How is the clear defect or hidden defect determined?
In practice the technical specifications determined as an annex to the construction agreement facilitate the determination of the defect. Thus,if the production that does not have the qualifications specified in these specifications will be deemed defective.16 On the other hand, the unit price chart17 and the aforementioned technical specifications in the annex of the contract are in the nature of exclusive evidence18; the court cannot take any evidence other than these evidences into consideration when determining the defect and unit prices. As we mentioned above, if the technical specification or the unit price chart is not present in the concrete case, good faith comes into play pursuant to Article 2 of the Turkish Civil Code. In accordance with the aforementioned rule, production should be made according to the intended use of the work.
7- How is the acceptance of the Construction (Work) and what are the consequences of its acceptance?
At this point, we would like to express that; delivery and acceptance of the work are not the same thing. The work can be accepted explicitly or implicitly. If the jobholder has directed a declaration of intention to the contractor, expressing their clear acceptance of the work, it is deemed to have accepted the work, and does not apply to the contractor's responsibility arising from obvious defects. This method is the explicit acceptance of the work by the jobholder. Once again, if the jobholder does not comply with the notice and inspection periods mentioned above - that is, if they know the defect and continue to use it by remaining silent - in this case, the implicit acceptance is occured and the responsibility of the contractor arising from the clear obvious ends. This method is also accepted as implied (implicit) acceptance. The jobholder's acceptance of the work, either implicitly or explicitly, only saves the contractor from obvious defects, otherwise the contractor's responsibility for hidden defects continues. In case of hidden defects, as soon as the defect has emerged, the defect must be reported to the contractor within the statute of limitations. If the hidden defect is not notified immediately, the aforementioned hidden defect is deemed to have been accepted in accordance with Article 477/III of the Turkish Law of Obligations. In this case, the contractor's liability arising from hidden defects cannot be applied.
8- Does the fact that we receive the Construction (Work) and are residing in it means that we accept the work?
Nonetheless, receiving the work does not mean that we accept the work and that we eliminate the responsibility of the contractor arising from the defect provisions. Even if the work has been received; the work would not be accepted when the burden of inspection and notification in accordance with the above-mentioned periods is fulfilled. For this reason, the fact that the work has been received or even residing in it does not mean that the work has been accepted. As long as there is no clear declaration of acceptance and the defects in the work are notified to the contractor in due time by complying with the notice and inspection periods specified above. Hence, the decision of the 15th Civil Department of the Court of Cassation, with the file numbered 1998/1217, and decision numbered 2018/1716 and dated 29.04.1998 states that; in the article 362 of the Turkish Law of Obligations, there is a provision that the contractor will be relieved of responsibility following the "acceptance" of what has been done, and "acceptance" in this provision is not synonymous with the delivery in article 359 of the same law. Receiving what has been done does not mean its acceptance."
9- We did not make any reservations while receiving the work, are we considered to have accepted the work? For this reason, is our application to the contractor's liability arising from defects in danger?
At this point, we should state that; even if the jobholder knows that it is defected, even receiving the building without reserving their rights does not mean that they accept the defect as a rule.19 They can use their rights arising from the defect until the end of the statute of limitations by notifying immediately following the delivery.20
10- Does incomplete work mean defective work? Is it necessary to comply with the above-mentioned inspection and notification burden in incomplete work?
While answering this question, first of all, the definition of incomplete work should be made properly. In the decision of the 15th Civil Department of the Court of Cassation, with the file numbered 2011/485, and decision numbered 2012/1218 and dated 01.03.2012; incomplete work is "the work that is not carried out in the amount indicated in the contract and its annexes and the project, or that some productions that are agreed or that should be done due to the nature of the work have not been made". To explain with an example, if the work is not built in the agreed quantity or area, there is incomplete work. Hence, in the decision of the Court of Cassation Assembly of Civil Chambers, with the file and decision numbered 1992/15-649-732 and dated 09.12.1992; "Making the independent section smaller than agreed is considered as an incomplete work". Incomplete work; defined as a work in which the contractor does not fulfill their contractual responsibility, that is, they do not do what they are supposed to do. Therefore, if there is a incomlepteness rather than a defect in the structure, it means not performing at all and the contractor will be subject to the provisions of default of debtor (Turkish Law of Obligations Art. 117-126). However, if there is a defect in the structure, the contractor will be liable against the defect according to the provisions of the guarantee against defect (Turkish Law of Obligations Art. 473/2-478). In case of incomplete work in the event, it is not necessary to comply with the notification and inspection obligation in order to apply to the contractual responsibility of the contractor. In the decision of the Court of Cassation Assembly of Civil Chambers, which we have mentioned above, this issue has been accepted with the following words: "Aside from the consensus in the doctrine that there is no need to make reservations, inspect and report in case of incomplete work, there are also judicial decisions that have gained determination." In summary, in case of incomplete work in the event, the incomplete works can be claimed to the contractor, provided that they are within the statute of limitations, without complying with the defect and notice periods specified in the above headings, and the contractor's contractual responsibility can be applied for these incomplete works.
Defect and incomplete work can be confused with each other in some cases. The importance of this distinction, as we have stated, is as follows; In case of a defect, the notice period must be followed, otherwise the rights of the jobholder arising from the defect are lost, in case of incompleteness, there is no need to comply with the notice period, the contractor can always be held responsible for the incompleteness during the statute of limitations. To make this distinction by example; a construction with some floors not yet built and irons protruding from the level of the last floor is missing = unfinished building; Although the rough construction works have been completed, the roof has been closed, the doors, bathroom-kitchen installations have been made, the tiles are broken or of bad quality or the construction that has not been whitewashed will be deemed defective.21
11- The lifeline of the jobholder, who did not fulfill the burden of notification and inspection and accepted the construction with its faults: "Warranty Provision"
If there is a warranty provision for the contractor's manufacture in the contract concluded between the employer and the contractor, even if the inspection and notification obligation regarding the clear and hidden defects we have mentioned above is not complied with, the contractor may be held liable for the defects during the promised warranty period. To explain with an example; "The Contractor undertakes that any manufacturing defect detected during the construction of the work or within 5 (five) years following the final acceptance will be corrected and completed within a maximum of 10 days from the date of notification on this matter." If there is such a provision in the form; the above-mentioned result arises, even if the jobholder does not fulfill the defect notification obligation, they may apply for the responsibility of the contractor for the clear and hidden defects for a period of 5 years specified in this provision. The contractor is deemed to have waived the provisions in their favor by giving a warranty that the jobholder will be deemed to have accepted the work as it is, if there is no explicit or implicit acceptance according to article 362 of Old Turkish Law of Obligations and article 474 of Turkish Law of Obligations..22 As a matter of fact, in the decision of the 15th Civil Department of the Court of Cassation, with the file numbered 2013/1678 , and decision numbered 2013/2619 and dated 16.04.2013, "Giving a warranty for the production in the contract means an undertaking that the incompleteness and defects that will arise during the warranty period will be corrected by the contractor." the decision confirms this point. In other words, through the guarantee provision, thejobholder will always be able to demand the removal of clear and hidden defects from the contractor until the end of the warranty period, as if they had made a timely notice regardless of the inspection and notice periods.
1. TANDOGAN, p.76
2. TANDOGAN, p.76
3. DAYINLARLI, İstisna Akdinin Ademi İfası ile ilgili Yargıtay Kararları, p.49, Decision of the 15th Civil Chamber of the Court of Cassation, dated 20.02.1978, file numbered 1978/627, decision numbered 1978/300
4. ÖZTÜRK Muhammet, GÖZÜTOK Zeki, Usul ve Esaslarıyla Eser Sözleşmesi Uygulaması, Ankara 2019, p.142
5. TANDOĞAN Haluk, Borçlar Hukuku Özel Borç İlişkileri, Ankara 1982, p.73
6. TANDOĞAN, p.73
7. ÖZ Turgut, İnşaat Sözleşmesi ve İlgili Mevzuat, İstanbul 2016, p.201
8. ÖZ, p.202
9. ÖZ, p.202
10. TANDOĞAN, p.79
11. TANDOĞAN, p.79
12. ZEVKLİLER, GÖKYAYLA, Borçlar Hukuku Özel Borç İlişkileri, İstanbul 2020, p.557
13. ÖZ, p.202
14. The decision of the 15th Civil Chamber of the Court of Cassation, dated 10.01.2005, numbered 2073/42 ,
If it is necessary to add to the examples
of hidden defect situations;
*In the decision of the 15th Civil Chamber of the Court of Cassation, dated 15.12.2011 and file numbered 1648 – decision numbered 7580, the occurrence of settlements, cracks and breaks in the geoblock walls was considered as a hidden defect.
* By quoting from TANDOĞAN p.89, Court of Cassation Commercial Department dated 09.11.1957, file numbered 541/ decision numbered 2436 "the building collapse as a result of the loosening of the soil by the waters descending to the foundation from the faulty burrs built under the ground" was evaluated as a hidden defect.
*By quoting from TANDOĞAN p.89, Court of Cassation Commercial Department dated 14.06.1957, file numbered 2225/ decision numbered 1523, "cracks in the building due to insufficient iron placement" was evaluated as a hidden defect.
15. TANDOĞAN, p.78
16. ÖZ, p.192
17. ZEVKLİLER, GÖKYAYLA, p.573
18. DAYINLARLI, İstisna Akdinin Ademi İfası ile ilgili Yargıtay Kararları, p. 47, Decision of the 15th Civil Chamber of the Court of Cassation,dated 25.04.1980, file numbered 1980/966, decision numbered 1980/1076
19. ÖZ, p. 205
20. ÖZ, p. 205
21. ÖZ, p. 195
22. ÖZTÜRK, GÖZÜTOK, p. 145
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.