Skip to main content
SpringerLink
Log in

Non-genuine Benevolent Intervention in Another’s Affairs and Disgorgement of Profits Under Turkish Law

  • Chapter
Disgorgement of Profits

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 8))

  • 1077 Accesses

Abstract

This chapter discusses the availability of disgorgement of profits as a private law remedy under Turkish Law. It provides an account of legal spaces that eventually allow disgorgement of profits as a private law remedy. To a great extent these stem from the general rule of non-genuine benevolent intervention, which is stipulated in article 530 of Turkish Code of Obligations.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 129.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 169.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 169.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    For example in articles 158/2 and 235/4 of the Turkish Criminal Code, it is stipulated that the criminal fines should be calculated with regard to the illegal profit. In article 18 of the Law of Misdemeanours and article 17 of the Law on Prevention of Laundering of Proceeds of Crime, it is stipulated that the illegal profits are to be confiscated by State.

  2. 2.

    The Republic of Turkey is a country that follows the civil law tradition. Accordingly, the primary feature of the Turkish legal system is that laws are written as comprehensive codes. The Turkish Civil Code consists of five books: the Law of Persons, Family Law, the Law of Inheritance, the Law of Property and the Code of Obligations. Although the Turkish Code of Obligations is separate from the Turkish Civil Code, as stated in article 646 of the Turkish Code of Obligations, it is the fifth book and complementary part of the Turkish Civil Code. The Turkish Code of Obligations is divided into two main parts: General Part and Special Part. Contracts, torts, unjust enrichment and other provisions with general application, are regulated in the First Part (General Part). Sales-, rental-, loan-, service-, and work contracts, mandate and other types of special contract provisions are regulated in the second part (Special Part).

  3. 3.

    However, treble damages are regulated both in article 68 of the Law on Intellectual Property and article 58 of the Law on the Protection of Competition. The major difference is that gross negligence or intent is required to claim treble damages under article 58 of the Law on Protection of Competition, whereas treble damages can be claimed independent of fault under article 68 of the Law on Intellectual Property (see Özden Merhacı (2013), 199) Both provisions are of a punitive character under the influence of American Law. For article 58 of the Law on the Protection of Competition, see İnan (2004), 51; Özden Merhacı (2013), 189–190. For article 68 of the Law on Intellectual Property, see Öztan (2008), 649. Nonetheless, it should be noted that due to its punitive character, article 68 of the Law of Intellectual Property has been brought before the Constitutional Court. It has been discussed whether treble damages is against the proportionality principle or not. The Court held that treble damages is not against the proportionality principle since it determines a limit for compensation. [Decision of Constitutional Court dated 28.02.2013, numbered 133/33]. In other words, the Constitutional Court did not find treble damages regulated under article 68 of the Law on Intellectual Property as being of punitive character. It should be further noted that there are certain differences between these two rules which are considered to be the examples of treble damages under Turkish Law.

  4. 4.

    Serozan (2015), I § 1 N 50.

  5. 5.

    Serozan (2015), I § 1 N 22. Punitive provisions can also be found in Inheritance Law. For example, grounds for disinheritance and unworthiness to inherit stipulated in articles 510 and 578 of the Turkish Civil Code are of punitive character. Likewise, article 610 of the Turkish Civil Code which regulates that heirs who have already appropriated or concealed objects belonging to the inheritance, are not entitled to disclaim the inheritance, is a punitive sanction.

  6. 6.

    Serozan (2015), I § 1 N 22.

  7. 7.

    For an opposing view, see İnceoğlu and Başoğlu (2010), 981–1027.

  8. 8.

    It is accepted that this provision is applicable when the price of the unsolicited goods is indicated since otherwise an offer does not exist. Moreover, the contract shall not be formed upon the express acceptance of the recipient, but the sender must expressly or implicitly accept this declaration. This provision is adopted from the article 6a of the Swiss Code of Obligations. This article is actually designed for the consumer sales since in Switzerland there is not a separate code for the protection for the consumers. However, under Turkish Law, it is stipulated as a general provision applicable to all types of sales. For detailed information on the sending of unsolicited goods; see İnceoğlu and Başoğlu (2010), 981–1027.

  9. 9.

    This provision is comparable to Article 27 of the Turkish Code of Obligations, which regulates that a contract is void if its terms are impossible, unlawful or immoral. However, it should be noted that article 27 is applicable when the scope of the contract or the aim of both parties is illegal or immoral whereas article 81 is applicable when the aim of the person who delivers the things is illegal or immoral.

  10. 10.

    The Judge’s right to assign the goods to the State Treasury, has been brought to this provision with the new Turkish Code of Obligations dated 2011. This amendment was made following criticism of the old provision. For critics see Öz (1985), 130. The Judge’s right to assign the goods to the State Treasury is a confiscation rule. However, the right to confiscation is to be decided by the judge considering the merits of the case. Nonetheless, it should be noted that the judge’s discretion is limited to confiscation of the goods to the State Treasury. The judge may not decide on the restitution of the acquisitions made in order to produce an illegal or immoral outcome (Oğuzman and Öz (2013), 362).

  11. 11.

    Hatemi (1976), 613; Öz (1985), 108.

  12. 12.

    Gümüş (2012), 237; Yavuz et al. (2012), 801.

  13. 13.

    Tandoğan (2010), 677.

  14. 14.

    Genuine benevolent intervention in another’s affairs is stipulated in article 529 of the Turkish Code of Obligations. Accordingly, any person enforcing the interests of another without having been authorised is liable to relinquish any proceeds of such action in the same manner as an agent in return of compensation of the expenses.

  15. 15.

    Arkan Akbıyık (1999), 38–40; Hatemi (1992), 495; Serozan (2014), § 24 N 23. It should be noted that bad faith means that the intervener knew or should have known that she/he intervened in the rights of others. However, it is alleged in the legal literature that mere fact of knowing the intervention is not enough to consider the intervener in bad faith, she/he must act in conscience about the illegal act (Serozan (2014), § 24 N 23).

  16. 16.

    Arkan Akbıyık (1999), 47.

  17. 17.

    Tandoğan (1957), 192; Yavuz et al. (2012), 801.

  18. 18.

    Tandoğan (1957), 193.

  19. 19.

    Arkan Akbıyık (1999), 20.

  20. 20.

    Arkan Akbıyık (1999), 47. It should be further noted that it is alleged by one view in the legal literature that impoverishment is not a required condition for the unjust enrichment claims (Serozan (2014), § 24 N 7).

  21. 21.

    Tandoğan (1957), 195.

  22. 22.

    Serozan (2014), § 24 N 23.

  23. 23.

    Arkan Akbıyık (1999), 49.

  24. 24.

    For this debate, see Arkan Akbıyık (1999), 45.

  25. 25.

    Arkan Akbıyık (1999), 48.

  26. 26.

    Serozan (2015), I § 5 N 58 fn. 63.

  27. 27.

    In case where the Principal suffered loss due to the benevolent intervention, the relationship between the damage and the disgorgement of profits would depend on whether the loss of the Principal appeared as suffered profits (lucrum cessans) or as actual loss (damnum emergens).

  28. 28.

    Absolute rights are the rights that enable its holder to enforce against everyone who breaches such a right and therefore, oblige all other persons to refrain from interfering. e.g. personal rights, rights in rem, intellectual rights.

  29. 29.

    Relative rights are the rights that enable its holder to enforce against a specified person or a group.

  30. 30.

    For this debate see Arkan Akbıyık (1999), 29; Gümüş (2012), 245; Tandoğan (1957), 111.

  31. 31.

    See, Decision of the Joint Chambers of the Court of Cassation, dated 4.6.1958 and numbered 15/16.

  32. 32.

    Hatemi (1992), 496.

  33. 33.

    Arkan Akbıyık (1999), 59; Tandoğan (2010), 683; Tandoğan (1957), 317; Tekinay et al. (1989), 238; Yavuz et al. (2012), 801.

  34. 34.

    Dural and Öğüz (2012), 156–157.

  35. 35.

    Arpacı (2000), 162.

  36. 36.

    Hatemi (2001), 97.

  37. 37.

    Arkan Akbıyık (1999), 79–80.

  38. 38.

    Oğuzman et al. (2009), 106–107; Özen (2003), 99.

  39. 39.

    Oğuzman et al. (2009), 109; Özen (2003), 123; Tekinay et al. (1989), 206–208.

  40. 40.

    Oğuzman et al. (2009), 109; Özen (2003), 123; Tekinay et al. (1989), 212.

  41. 41.

    Arkan Akbıyık (1999), 82. For opposing view, see Tandoğan (1957), 314. It should be further noted that possessor in bad faith in this context is one who knew or should have known that she/he had no right to acquire possession. See decision of the 4th Civil Chamber of Court of Cassation dated 26.3.1974 and numbered 16426/1516. Furthermore, it is possible that a possessor in good faith becomes a possessor in bad faith during her/his period of possession. See decision of the Assembly of Civil Chambers of the Court of Cassation dated 07.03.2012 and numbered 3-834/127.

  42. 42.

    Özen (2003), 202. In such a case, gained profits may be claimed due to article 530 of the Turkish Code of Obligations instead of compensation. It is more beneficial to claim for gained profits when the market price of the possessed goods are lower than the sale price. Arkan Akbıyık (1999), 48.

  43. 43.

    Özen (2003), 193.

  44. 44.

    Oğuzman et al. (2009), 114.

  45. 45.

    Tekinay et al. (1989), 210–211.

  46. 46.

    In 1950, the Court of Cassation rendered that in order to claim for profits gained or failed to have been gained from an illegal possessor in bad faith, it should be proven that the legal possessor would have gained the profits if she/he had possessed the goods. According to this decision, loss is required in order to claim for compensation from an illegal possessor in bad faith for utilization of the possessed goods or profits gained or failed to have been gained. see, Decision of the Joint Chambers of the Court of Cassation, dated 8.3.1950 and numbered 22/4. Lately in various decisions, the Court of Cassation has rendered that in order to claim for profits gained or failed to have been gained from an illegal possessor in bad faith, it should be only proven that profits could be gained from the possessed the goods. Accordingly, the Court of Cassation does not require the profits to be actually gained by an illegal possessor in bad faith. See Decisions of the Assembly of Civil Chambers of the Court of Cassation dated 15.12.1980 and numbered 1708/2632; dated 30.9.1981 and numbered 1715/645 and 3rd Civil Chamber of Court of Cassation dated 16.10.1980 and numbered 5174/5268. This view is also supported by the legal literature; see Tekinay et al. (1989), 220.

  47. 47.

    Özen (2003), 263–264.

  48. 48.

    Decision of 11th Civil Chamber of Court of Cassation dated 01.12.2003 and numbered 4292/11261.

  49. 49.

    Arkan Akbıyık (1999), 85; Arslanlı (1954), 211. For opposing view, Erel (2009), 307.

  50. 50.

    Öztan (2008), 678. Also see decision of 11th Civil Chamber of Court of Cassation dated 25.02.2004 and numbered 10070/1592.

  51. 51.

    “The injury suffered by the owner of the trademark includes not only the value of the actual loss but also the loss of profits incurred due to the infringement of the trademark rights. The loss of profit shall be calculated in accordance with one of the following methods, to be chosen by the injured trademark owner:

    a) According to the possible income that the proprietor of the trademark would have generated if the competition of the infringing party did not exist;

    b) According to the profit generated by the infringing party from the use of the trademark;

    c) According to a license fee that would have been paid if the party infringing the trademark right would have utilized the trademark under a legal licensing contract.” (English text of the Decree-Law is available at http://www.tpe.gov.tr/dosyalar/EN_khk/Trademark_DecreeLaw.htm ).

  52. 52.

    “The damage/prejudice suffered by the proprietor of the patent includes, not only the value of the effective loss, but also includes the income non-realized because of the infringement of the patent right. The non-realized income shall be calculated in accordance with one of the following evaluation methods, on the option of the proprietor of the patent who has suffered damage/prejudice:

    a) According to the income that the proprietor of the patent might have possibly generated if the competition of the infringing party did not exist;

    b) According to the income generated by the infringing party from the use of the patent;

    c) According to a license fee that would have been paid if the party, infringing the patent right, would have lawfully utilized the patent under a licensing contract.” (English text of the Decree-Law is available at http://www.tpe.gov.tr/dosyalar/EN_khk/Patent_DecreeLaw.htm)

  53. 53.

    “The injury suffered by the design right holder include not only the value of the actual loss but also the income loss incurred because of the infringement of the design rights. The loss of income shall be calculated in accordance with one of the following evaluation methods, on the option of the design right holder who has suffered the injury:

    a) according to the possible income that the design right holder would have generated if the competition of the infringing party did not exist;

    b) according to the income generated by the infringing party from the use of the design;

    c) according to a license fee that would have been paid if the party infringing the design right would have utilized the design under a legal licensing contract. (English text of the Decree-Law is available at http://www.tpe.gov.tr/dosyalar/EN_khk/IndustrialDesign_DecreeLaw.pdf)

  54. 54.

    According to article 56 (d), injured may claim for compensation of damages if there is fault. However, it should be noted that it is the Court of Cassation’s opinion that claim for disgorgement of profits is accepted only if the existence of damages or its amount could not be demonstrated. See 11th Civil Chamber of Court of Cassation dated 16.6.1997 and numbered 4268/4721.

  55. 55.

    Arkan Akbıyık (1999), 89.

  56. 56.

    Arkan Akbıyık (1999), 90.

  57. 57.

    Arkan Akbıyık (1999), 88.

  58. 58.

    Tandoğan (1957), 344.

  59. 59.

    Gümüş (2012), 237; Yavuz et al. (2012), 801. Even if such view is not accepted, it is still possible to accept a general concept of disgorgement of profits by collective analogy (Rechtsanalogie) regarding article 530 of the Turkish Code of Obligations, article 25/II of the Turkish Civil Code; article 995 of the Turkish Civil Code; article 70/III of the Law on Intellectual Property and article 56/I (e) of the Turkish Commercial Code. Accordingly, it is possible to deduce the general principle that one who is harmed due to the intentional illegal act of another should have a right to appropriate any resulting benefits arising from such harm. However, in order to claim such a view, one should not accept the view that the remedy of disgorgement of profits has a punitive character. Otherwise, such a view would contradict the fact that the analogy could not be applied to the punitive remedies.

Bibliography

  • Arkan Akbıyık, A. 1999. Gerçek Olmayan Vekaletsiz İş Görme. Istanbul: Alfa.

    Google Scholar 

  • Arpacı, A. 2000. Kişiler Hukuku (Gerçek Kişiler). Istanbul: Beta.

    Google Scholar 

  • Arslanlı, H. 1954. Fikri Hukuk Dersleri Cilt II. Istanbul: Fikir ve Sanat Eserleri Hukuku.

    Google Scholar 

  • Dural, M., and T. Öğüz. 2012. Türk Özel Hukuku Cilt II Kişiler Hukuku. Istanbul: Filiz.

    Google Scholar 

  • Erel, Ş. 2009. Türk Fikir ve Sanat Eserleri Hukuku. Ankara: Yetkin.

    Google Scholar 

  • Gümüş, A. 2012. Borçlar Hukuku Özel Hükümler Cilt II. Istanbul: Vedat Kitapçılık.

    Google Scholar 

  • Hatemi, H. 1976. Hukuka ve Ahlaka Aykırılık Kavramı ve Sonuçları, Özellikle BK m. 65 Kuralı. Istanbul.

    Google Scholar 

  • Hatemi, H. 1992. Hatemi/Serozan/Arpacı Borçlar Hukuku Özel Bölüm. Istanbul: Filiz Kitabevi.

    Google Scholar 

  • Hatemi, H. 2001. Kişiler Hukuku Dersleri. Istanbul: Filiz.

    Google Scholar 

  • İnan, N. 2004. 4054 sayılı Rekabetin Korunması Hakkında Kanun’un Özel Hukuka İlişkin Düzenlemelerine Eleştirel Bir Bakış in Rekabet Hukukunda Güncel Gelişmeler Sempozyumu II (9 Nisan 2004), Kayseri: 43–66.

    Google Scholar 

  • İnceoğlu, M., and B. Başoğlu. 2010. Sipariş Edilmemiş Malların Gönderilmesi in Prof. Dr. Rona Serozan’a Armağan, Cilt:2, XII Levha Yayıncılık, Istanbul: 981–1027.

    Google Scholar 

  • Oğuzman, K., and T. Öz. 2013. Borçlar Hukuku Genel Hükümler Cilt: 2. Istanbul: Vedat Kitapçılık.

    Google Scholar 

  • Oğuzman, K., Ö. Seliçi, and S. Oktay Özdemir. 2009. Eşya Hukuku. Istanbul: Filiz Kitabevi.

    Google Scholar 

  • Öz, T. 1985. BK 65 Kuralının Sınırlandırılması Sorunı ve BK 20 Kuralı ile İlişkisi Rüşvet – Başlık Parası. Istanbul Barosu Dergisi, 1-2-3: 105–130.

    Google Scholar 

  • Özden Merhacı, S. 2013. Karşılaştırmalı Hukukta Cezalandırıcı Tazminat. Ankara: Yetkin.

    Google Scholar 

  • Özen, B. 2003. Haksız Zilyetlikte İade. Istanbul: Beta.

    Google Scholar 

  • Öztan, F. 2008. Fikir ve Sanat Eserleri Hukuku. Ankara: Turhan.

    Google Scholar 

  • Serozan, R. 2014. Kocayusufpaşaoğlu/Hatemi/Serozan/Arpacı Borçlar Hukuku Genel Bölüm, Üçüncü Cilt, İfa – İfa Engelleri – Haksız Zenginleşme. Istanbul: Filiz Kitabevi.

    Google Scholar 

  • Serozan, R. 2015. Medeni Hukuk, Genel Bölüm Kişiler Hukuku. Istanbul: Vedat Kitapçılık.

    Google Scholar 

  • Tandoğan, H. 1957. Mukayeseli Hukuk ve Hususiyle Türk-İsviçre Hukuku Bakımından Vekaletsiz İş Görme, Istanbul.

    Google Scholar 

  • Tandoğan, H. 2010. Borçlar Hukuku, Özel Borç İlişkileri Cilt II. Istanbul: Yetkin Yayınlar.

    Google Scholar 

  • Tekinay, S., S. Akman, H. Burcuoğlu, and A. Altop. 1989. Eşya Hukuku, Cilt I. Istanbul: Filiz.

    Google Scholar 

  • Yavuz, C, B. Özen, and F. Acar. 2012. 6098 Sayılı Türk Borçlar Kanunu’na Göre Borçlar Hukuku Dersleri (Özel Hükümler). 10th edn., Beta, İstanbul.

    Google Scholar 

List of Cases

Download references

Author information

Authors and Affiliations

  1. Faculty of Law, Istanbul Kemerburgaz University, Mahmutbey Dilmenler Cad. No: 26 34217 Bağcılar, Istanbul, Turkey

    Başak Başoğlu

Authors
  1. Başak Başoğlu
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Başak Başoğlu .

Editor information

Editors and Affiliations

  1. Molengraaff Institute for Private Law, University of Utrecht, Utrecht, The Netherlands

    Ewoud Hondius

  2. Lehrstuhl für Bürgerliches Recht Medizinrecht, IPR und Rechtsvergleichung, University of Göttingen, Göttingen, Germany

    André Janssen

Rights and permissions

Reprints and permissions

Copyright information

© 2015 Springer International Publishing Switzerland

About this chapter

Cite this chapter

Başoğlu, B. (2015). Non-genuine Benevolent Intervention in Another’s Affairs and Disgorgement of Profits Under Turkish Law. In: Hondius, E., Janssen, A. (eds) Disgorgement of Profits. Ius Comparatum - Global Studies in Comparative Law, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-18759-4_14

Download citation

Publish with us

Policies and ethics

Search

Navigation