Haksız Fiil Sorumluluğunda Kusur ve Etkisi

Abstract

The purpose of this study is to define the fault component of tort both positively and negatively, to provide applicable criteria in cases, and to concretize the possible effects of fault in the determination of compensation and in the allocation of liability. Our study consists of three Chapters. In the first Chapter, after a depiction of the evolvement of fault principle in tort law, the regulation and the effect of fault in liability law within countries which affect Turkish/Swiss law and within European tort law harmonization studies are examined. Following that, the features of fault theories, the theoretical and practical differences between them and our opinion are reflected. In the second chapter, first, the relationship between fault and the other components of tort, namely, unlawfulness, causality, act and damage is examined. Afterwards, the power of discernment and the deviation from hypothetical model conduct, which are the components of fault, are evaluated. In order to provide contribution to practice, a “checklist” which contains primary and secondary criteria that can be resorted in order to specify the model conduct is presented. Thereafter, intent and negligence as degrees of fault and their sub-degrees are assessed. Later, the important issues in the assessment of fault in practice are evaluated. In the third chapter, following the assessment of the effect of fault in the emergence of liability, the effect of fault in the determination of compensation is assessed. The effect of tortfeasor’s fault and the effect of contributory fault on the determination of compensation are specified by taking into consideration the opinions within the doctrine and by evaluating different possible scenarios. Afterwards, the effect of fault in strict liability is discussed. Thereafter, fault in the determination of compensation resulting from non-pecuniary loss is explored. Finally, fault in joint liability of the tortfeasors is examined.