Introduction
Contract of work is regulated under Articles 470-486 of Turkish Code of Obligations. According to Article 470 of Turkish Code of Obligations, contract of work is contract where the contractor undertakes to create a work and the owner undertakes to pay a price in return.
As it is understood from the text of the article, the parties to the contract of work consist of the owner and the contractor. In this contract, the contractor is the worker. The owner and contractor may be a natural person or a artificial person1. It is seen that the parties to the contract of work are generally commercial companies such as joint stock companies or limited liability companies. It is also possible for the contractor to be a ‘joint venture' in the form of an ordinary partnership. The contractor is usually an independent operator2.
In this article, the elements of the contract of work will be explained and the difference of the contract of work from some contracts will be revealed.
- Elements of the Contract of Work
In order to be able to talk about a contract of work, three elements are required. These three elements are as follows:
- Element of Creating a Work:
With the contract of work, the contractor undertakes to create a work. The creation of the work includes the creation of the work for the first time, the modification of the work and the destruction of an existing work.
The creation of a new building is an example of a new work, the painting of the walls of an existing building is an example of modification of the work, and the demolition of the building is an example of the destruction of the work.
- Element of Price
Price is a compulsory element in contracts of work. If the contractor has not created the work for a price, there is a contract of proxy or an unnamed (mixed) contract for works and services between the parties.
As a rule, the price is a sum of money.
- Element of Agreement
The contract of work is established with the mutual and appropriate declaration of the parties' wills. As a rule, this agreement is not subject to a form requirement. However, in some cases, the sale of immovable property may be made in a mixed or single contract together with the contract of work, in which case the contract must be made in a formal form.
- The Difference of the Contract of Work From Some Contracts
- Difference of the Contract of Work From the Contract of Service
A contract of service, like a contract of work, is a contract that includes the act of working. However, these contracts differ from each other at certain points. In a contract of service, the employee undertakes to provide services dependent on the employer for a definite or indefinite period of time. In the contract of work, the contractor is not dependent on the owner except for some instructions of the owner. In the contract of work, the contractor is obliged to deliver the work and the work to be created as a result of his work. No matter how diligent the contractor is, he is not relieved of his obligation unless the work is delivered. However, in the contract of service, the worker fulfills their obligation when their performs the work diligently.
- The Difference of the Contract of Work From the Contract of Proxy
In a contract of proxy, the proxy undertakes to perform a work in a certain direction. While the proxy performs this work, a result may arise, but the proxy does not owe or guarantee this result. What the proxy undertakes with the contract of proxy is not to create a work. He undertakes to carry out an activity, to carry out the work diligently3.
Since trust is an important element in the contract of proxy, the proxy must fulfill his/her obligation personally as a rule. However, unless otherwise agreed in the contract of work, the contractor may have the work done by someone else. The proxy and the contractor are persons with a certain expertise. Both of them are more independent than the employee.
- The Difference of the Contract of Work From the Contract of Sale
In contracts of work and sale, the contractor and the seller undertake to transfer the possession and ownership of the subject matter of the contract to the owner and the buyer. However, the seller transfers and delivers a ready-made thing to the contractor. But the contractor transfers and delivers a work that he has created. Since the contractor will create a work in the contract of work, the element of working is dominant in this contract. In the sales contract, the element of material is dominant. These two contracts also differ in terms of giving instructions to the contractor and the seller. The owner may give instructions to the contractor, whereas the buyer is not authorised to give instructions to the seller.
- The Difference of the Contract of Work From the Contract of Publication
The subject matter of both contract of work and contact of publication is to act of work and to create a work. In the contract of publication, the publisher is obliged to print the work, thus creating a result. In the contract of work, the contractor is not obliged to publish the work to the public.
In a contract of publication, the author transfers his financial rights on the work to the publisher. In a contract of work, the owner of the work only owes to the contractor a certain amount of money4.
The contract of publication is a contract subject to a written form5. However, the contract of work is not subject to a form as a rule.
Conclusion
There are basically three elements of the contract of work and these three elements are explained at the beginning of our article. These elements are work, price and agreement. In this article after drawing the framework of the contract of work, its difference from contracts of service, proxy, sale and publication is explained.
Footnotes
1. Fikret Eren, Borçlar Hukuku Özel Hükümler, Ankara, 2022, s. 597.
2. Eren, s. 597.
3. Eren, s. 612.
4. Eren, s. 616.
5. K. Emre Gökyayla, “Yayım Sözleşmesinin Konusu”, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 2016, C. 22, S. 3, 1133-1147, s. 1134.
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.
