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LAW 519 BUSINESS LAW. Prof.dr.huriye kubilay 2013 sprIng semester. SUBJECTS. Fundamental Concepts of Obligations Law Contractual Obligations ( Establishment of a contract ) Contractual Obligations ( Requirements of a contract ) Various kinds of contracts

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subjects
SUBJECTS
  • FundamentalConcepts of ObligationsLaw
  • ContractualObligations (Establishment of a contract)
  • ContractualObligations (Requirements of a contract)
  • Variouskinds of contracts
  • Law of BusinessEnterprise
  • Law of BusinessEnterprise
  • Mid-termExam
subjects1
SUBJECTS
  • General Principles of CompanyLaw
  • JointStockCorporations
  • JointStockCorporations
  • LimitedLiabilityCompany
  • NegotiableInstruments
  • UnfairCompetition
  • Protection of Trade Marks
  • Review
  • Review
slide5
Law is a system of reason, a set of deductions from principles of ethics, morals, or justice.
slide6
LAW
  • Lawconsists of a set of universal moral principles in accordancewithnature.
  • Thelaw as fundamentally a vehiclefortheprotection of individualrights, theattainment of justice, oreconomic, politic, andsexualequality.
substantive law
Substantive Law

Substantive Law deals with the different ways people interact. Law adressed to actions and relationships among people is substantive law.

substantive law1
SUBSTANTIVE LAW
  • CivilLaw
  • CommercialLaw
  • ConstitutionalLaw
  • AdministrativeLaw
procedural law adjective law
Procedural Law / Adjective Law
  • Procedural Law / Adjective Law Law that structures government by laying down procedures on how it must act –especially that which relates to the courts thremselves- is known as procedural law. Procedural Law shapes the legal-judicial process: how lawsuits begin and move through the courts.
procedure law
PROCEDURE LAW
  • CivilProcedureLaw
  • CriminalProcedureLaw
  • AdministrativeProcedureLaw
procedural law
PROCEDURAL LAW
  • CivilProcedureLaw (Hukuk Muhakemeleri Kanunu) CivilProcedureAct, 6100 wasenteredintoforce in 01 October 2011.
  • CriminalProcedureLaw (Ceza Muhakemeleri Kanunu)
slide13
LAW

Public Law – Private Law

public law
Public Law
  • –for example constitutional law, administrative law- deals with relations between government and private citizens and organizations.
private law
Private Law
  • Private Law which is the set of laws that spell out the duties, obligations and responsibilities that individuals and organizations owe to each other (Tort Law, Contract Law, Property Law, Partnership and Corporation Law)
law classified by governmental branch creating it
LAW CLASSIFIED BY GOVERNMENTAL BRANCH CREATING IT
  • Statutes A law enacted by a legislature is called a statute. It is written and published in various forms.
  • Regulations Laws emanating from the executive branch –the source of administrative law- are called regulations or rules; they too are written and published.
slide17

Statutesareenactedbylegislative body.

  • Statutorydecreesandregulationsareenteredintoforcebyexecutive body.
legislation
LEGISLATION
  • Thestereotypicalsource of law in contemporary legal systems is thestatuteenactedby a legislative body thatseekstointroducenewrules, ortoamendoldones –generally in the name of reform, progress, ortheallegedimprovement of ourlives.
hierarchical order
HIERARCHICAL ORDER
  • The Constitution
  • Statutes, International conventions, statutory decrees
  • Regulations
  • By-Laws
slide21

Ordinary legal transactionsaresubjecttoCode of Obligation

  • Commercial legal transactionsaresubjecttoTurkishCommercialCode
legal systems civil law and common law
LEGAL SYSTEMS: CIVIL LAW and COMMON LAW

Thesystem of codifiedlawthatobtains in most of Europe, South America, andelsewhere is known as civillaw,

in contrasttothecommonlawsystemthatapplies in England, formerBritishcolonies, the United States, andmost of Canada.

codes of obligations
CODES OF OBLIGATIONS
  • Code of Obligations, 818 (1926)
  • TurkishCode of Obligations ( Enterintoforce: 1th July 2012)
obligations arise from three sources
OBLIGATIONS ARISE FROM THREE SOURCES
  • Contracts
  • TortiousActs
  • Unjust/Unjustifiableenrichment
contract
CONTRACT

Contract is a legal relation between two parties formed by the concurring declarations of their wills.

slide28

DECLARATION OF WILL OF A PARTY THAT GIVES RISE TO A CONTRACT IS CALLED THE OFFER AND IT CONSTITUTES THE INITIAL MOVE. A CONTRACT IS CONCLUDED WHEN THE OFFER MADE BY ONE PARTY (THE OFFERER) IS ACCEPTED BY THE OTHER PARTY.

slide29

OFFERAn offer is a declaration of will (intention) by the offerer, communicated to the offeree, whereby he declares his willingness to enter into a contract with a specified content and under certain terms.

slide30

Offer, as a rule, is made to a specific person. But, it is also possible to direct an offer to persons whose identity is not yet specified, that is to say to the general public.

slide32

INVITATION TO TREAT/OFFERA declaration, carries merely the purpose of attracting the attention of the interested people and inviting them to make offers in case they care to enter into a contractual relation.

slide33

THE BINDING EFFECT OF THE OFFEROffer is the initial step towards creating a contractual relation and it grants the offeree right to conclude the contract by making an acceptance.

slide34

Offer communicated to an offeree who was present

  • Offer communicated between parties not present (Inter Absentes)
offer communicated to an offeree who was present
OFFER COMMUNICATED TO AN OFFEREE WHO WAS PRESENT
  • The term 'between present parties' means that both the offeror and the offeree were negotiating face to face, together at the same time and at the same place. Communications conducted through telephone is deemed as communications entered into between parties who are present.
  • An offer that is made to an offeree who is present and without allowing any time limit for acceptance, shall expire if it were not accepted immediately.
offer communicated between parties not present inter absentes
OFFER COMMUNICATED BETWEEN PARTIES NOT PRESENT (INTER ABSENTES)
  • In case the offerer has indicated a period of time for the acceptance, he must wait until the expiration of that period.
revocation of the offer
REVOCATION OF THE OFFER
  • The offeror may be relieved from being bound by the offer by sending a declaration of revocation to the offeree which should reach him either before the offer does or at the latest simultaneously with the offer.
acceptance
ACCEPTANCE
  • The acceptance reflects the definite will of the other party (the offeree) to enter into the proposed contractual relationship, based on the terms and conditions contained in the offer.
  • The acceptance must be in full accord with the offer and consequently a modification of the terms and conditions of the offer is not deemed as an acceptance but considered to be a counter-offer, which may lead to the conclusion of a contract only if it is, in his turn, accepted by the original offeror.
classification of contracts
CLASSIFICATION OF CONTRACTS
  • Unilateral contracts
  • Bilateral (synallagmatic) contracts
    • Perfect Bilateral (Synallagmatic) contracts (Contracts of sale, rent or carriage)
    • Imperfect Bilateral (Synallagmatic) contracts
unilateral contracts
UNILATERAL CONTRACTS

When the promise of a gift is accepted by the promisee, there will be a unilateral gift contract.

imperfect bilateral contract
IMPERFECT BILATERAL CONTRACT

For example, an agency contract without remuneration or a loan contract without interest or loan for use. In the latter, the borrower of the loan has only the obligation to return what he has borrowed, whereas the other party has no counter obligation to fullfill.

perfect bilateral contracts
PERFECT BILATERAL CONTRACTS

Perfect bilateral contract is a contract where the parties exchange their promises. In other terms, a bilateral contract or a synallagmatic (reciprocal) contract is a contract in which both parties undertake reciprocal duties which are enforceable by law. For example, in the case of a sales contract related to a real property (land), the seller promises to convey the title of the land and the buyer promises to pay the sale price.These are mutual promises and principal obligations of the parties.

performance
PERFORMANCE
  • Performance of a contract means the complete and proper fulfilment of the obligations in accordance with the terms and conditions contained in the contract.
contractual capacity to enter into a contract
CONTRACTUAL CAPACITYTO ENTER INTO A CONTRACT

Capacity to act means an ability to acquire rights and incur liabilities (TCC. Art.9).

Capacity to act should be distinquished from the capacity to enjoy civil rights (TCC. Art.8).

Under Turkish Law, every person, even an unborn child is subject to enjoy civil rights; provided that he’s born alive, but not every person should necessarily have the capacity to act.

degrees of capacity to act
DEGREES OF CAPACITY TO ACT
  • Full capacity
  • Full incapacity
  • Limited incapacity
  • Limited capacity
full capacity
FULL CAPACITY
  • Capacity to make fair judgements. This means that a person has sufficient mental capacity to foresee and to understand the nature, importance and consequences of his transaction (TCC Art.13).
  • Majority. Turkish Law has fixed the age of majority at eighteen years. All persons under this age are known minors. Majority by marriage : Marriage confers majority (TCC Art.11). Majority by declaration of court: A minor who has completed 15th year, upon his application and approval of his parents may be declared by the judge to be of full age (TCC Art.12).
  • Negative condition : Not to be interdicted. The interdiction is to remove, totally or partially, a person’s capacity to act because of his thriftlessness, drunkenness, and misuse of administration or imprisonment for more than one year (TCC Art.405-408).
full incapacity
FULL INCAPACITY

The contract entered into by a mentally disordered person is null and void (TCC Art.15). A person deprived from power of will, cannot create a contract. A contract entered into by an incapable person cannot be converted into a valid contract even with the approval of his/her legal representative.

turkish law provides some exceptions to the voidity of a transaction
Turkish Law provides some exceptions to the voidity of a transaction :
  • Whenequityrequiresthat an incapableperson be liabletocompensatefordamagesthat he has caused(TCO Art.54).
  • Marriage of a persondeprived at the time of wedding of theabilitytomakefairjudgementyieldsall legal consequences of a validmarriageuntilthedeclaration of nullitybythecourt. Thisexception is recognized in ordertoprotectthecivilstatus of thechildbornuntilthedeclaration of nullity of themarriage.
  • A lawsuitbased on an unjustenrichment can be broughtagainst an incompetentperson.
  • An incompetentpersoncannotallegethenullity of a contractagainsttherulesrelatedtogoodfaith. Forexample, a mentallydisorderedemployershould not be entitledtoclaimtherecovery of thepaymentsthat he has madeto his employee.
limited incapacity
LIMITED INCAPACITY

Minors and interdicted persons have limited incapacity to act if they are subject to make fair judgement. They need the consent of approval of their legal representative (parents or legally appointed guardian) (TCC, Art.16).

The contract entered into by a person of limited incapacity is not bound while the other party is bound with the contract. The validity of the contract is in suspension, until ratification or refusal of ratification of the legal representative.

slide51
A gratuitous contract (without consideration), where the minor does not incur liability, can be validly entered into by a minor without the consent of his legal representative. For example, a minor can accept a gift without the consent of his legal representative because, in such a case, he/she merely acquires an advantage without incurring liabilities.
slide52
The person having limited incapacity is liable for the damages given by an unlawful act (tortious liability)
causal contracts
CAUSAL CONTRACTS

Every obligation should have a cause behind it.This cause may be causa credendi, causa solvendi or causa donandi.The validity of a contract depends on the “validity of the cause”. It means that the contract is valid when the parties agree on a valid legal ground.

Under Turkish Law, the transfer of immovable is always admitted as causal.

slide55
The performance of a contract creating an obligation often needs another transaction, which is called “act of disposal”, an act that results in a decrease of assets. For example, a contract of sale creates an obligation the transfer of the property sold to the buyer. The performance takes place when the property sold is delivered to the buyer. The delivery is an act of disposal, an act that results in a decrease of the assets of the debtor (seller).
abstract contracts
ABSTRACT CONTRACTS

A contract may be effective even if the cause is not valid.

This theory has been evolved to maintain the validity of a contract and to ensure the commercial security in business practice. Under the “abstract transaction theory”, transfer of title will be valid even the contract creating the obligation of transfer is void.

the subject matter of the contract
THE SUBJECT MATTER OF THE CONTRACT

Thesubjectmatter of a contract is a promise/an undertakingfor a promise.

Thecreditormay ask his debtortogivesomething, to do an actortorefrainfromdoing a specificact. Unlessprohibitedbylaw, thesubject of thepromisemay be a tangibleobject, somethingthat can be touchedorthatoccupies a space, such as movablesorrealpropertyor an intangibleobjectsuch as aright of creditor an intellectualandindustrialrightsuch as patentsandinventions.

various kinds of contracts
VARIOUS KINDS OF CONTRACTS
  • Salecontract
  • Hiringcontract
  • Guaranteecontract
  • Bartercontract
  • Service contract/Theworkcontract
  • Lendcontract
  • Brokeragecontract
  • Theagencycontract
  • Thecontract of carriage
torts
TORTS

A personcausingdamagetoanotherpersonintentionallyorbynegligenceby an actagainstthelawshall be obligedtocompensatethedamage. A personcausingdamagetoanotherpersonby an intentionalactagainstthemoralsshallequally be obligedtocompensate it.

slide60
TORT

Theterm “tort” (unpermittedactions) refersto a violation of a civillawrule of conductcausinginjurytoanotherperson. Thepersonwhoseunlawfulconductresultsinjurytothevictim is defined as “tortfeasor”. He is theonewhocommits a tortiousact.

slide61

Anypersonwho is deprived of his individualright in an unlawfulmanner can demandforthetortfeasorreperation of his damages. Thevictim (plaintiff) is thepartywho has sustained an injuryto his personorproperty. He can bring a tortactionagainstthetortfeasor (defendant) torecievecompensation. Thegoal of TortLaw is toassignfinancialliabilitytothetortfeasorfor his tortiousconductthat has resulted in injuryorlostto an individualpersonor his property.

unjust enrichment
UNJUST ENRICHMENT

A personwhoacquiressomething at theexpense of anotherwithoutany legal groundshall be requiredtoreturn it.

unjust enrichment1
UNJUST ENRICHMENT

Unjustenrichment is thegain of a personfromtheproperty (assets) of anotherwithouthavingjustifiablegrounds. An unjustenrichmentcreatesthedutytoreturn. Anyperson, who has, in an unjustifiablemanner, becomesricherbyreceiving a gainout of property of another, is boundtoreturn.