The Intent Requirement for the Liability Arising from Immorality under German, Swiss and Turkish Laws

Authors : Günhan Gönül Koşar

Pages : 307-324

Doi:10.26650/annales.2024.74.0013

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Publication Date : 2024-05-30

Article Type : Research

Abstract :Upon the modernization of the Republic of Türkiye, the Swiss Civil Code and the Swiss Code of Obligations were adopted in 1926. The Turkish provision that regulates liability arising from immorality (Turkish Code of Obligations Art 49/2) requires the tortfeasor to act intentionally. However, it is controversial in Swiss doctrine whether the Swiss Code of Obligations Art 41/2 – the source law of Turkish provision – requires Absicht (malice/pure intent to cause harm) as a different degree of intent. Even though the Turkish Code of Obligations Art 49/2 uses the Turkish term kasıt -intent- (Vorsatz), the debate in the Swiss doctrine spread to Turkish doctrine, and there is a disagreement regarding the degree of intent required in the provision. While some authors state that, in accordance with Swiss law, Absicht (malice) should be required for the application of such a provision with a restrictive nature, other authors find indirect intent (dolus eventualis) sufficient to invoke said provision. In brief, in this paper, the degree of intent required for the liability arising from immorality under Turkish tort law shall be evaluated in comparison with German and Swiss laws.
Keywords : Malice, Direct intent, Indirect intent, Liability, Immorality