Defectiveness of the Delivered Goods
A defective work is one that does not possess the qualities it should have according to the contract. This means either that the work does not possess the qualities agreed upon in the contract or, even if there is no specific agreement on this matter, that the work lacks the qualities that should be present according to the principle of good faith, considering the content of the contract. The defectiveness of the delivered work means that the work does not possess the characteristics agreed upon in the contract or that it should possess according to the principle of good faith.
Firstly, when the parties enter into a work contract, they also agree, explicitly or implicitly, on the characteristics that the work to be produced under the contract will possess. These agreements may relate to either the general or specific characteristics of the work. General characteristics are those that concretely define the work, such as its shape, size, colour, and manner of execution. Specific characteristics, on the other hand, are features that more closely define the work in terms of its inherent qualities.
Whether the parties have agreed on a specific general or specific characteristic of the work, or which characteristics they have agreed upon, is determined by interpreting the contract within the framework of the principle of good faith in the specific case. It is not only the words used in the contract that are decisive in the interpretation of the contract; the prevailing views in business circles also play a decisive role in the interpretation of the contract.
If the characteristics specifically agreed upon in the contract are lacking, the work is defective even if it has been produced in accordance with generally accepted rules of the art. If a characteristic that should be present according to the contract is missing, the work is defective even if it is as fit for use as the agreed-upon work. The fact that the work is more valuable and suitable for use in this state does not change this situation. However, in such cases, the conditions for the rights to withdraw from the contract, reduce the price, or remedy the defect due to the defectiveness of the work may not be met, and therefore the client may have to settle for the work produced. Furthermore, in such cases, exercising these discretionary rights may also constitute an abuse of rights.
If a characteristic of the construction work agreed to be produced in the contract falls below the standard prescribed by generally accepted rules of technology; if the construction work subject to the contract has been constructed in accordance with the express agreement of the parties but it does not meet the standard required by the generally accepted rules of the art, the question arises as to whether the work created in accordance with the contract is defective. In such a case, if the quality agreed upon in the contract does not prevent the use of the work for the purpose specified in the contract, there can be no question of a defect. However, if a quality agreed upon in the contract but contrary to the generally accepted rules of the art reduces or eliminates the suitability of the work for its intended purpose, the question arises as to whether the work is defective. As a rule, the contractor is not liable for complying with the provisions agreed in the contract regarding the characteristics of the work when creating it. However, if a characteristic that is contrary to generally accepted technical rules or below the standard of these rules reduces or completely eliminates the suitability of the work for its intended purpose, the contractor is obliged to warn the owner pursuant to Article 472/f.3 of the Turkish Code of Obligations.
If the contractor fails to fulfil this obligation, they shall be liable for the unsuitability of the work for its intended purpose in accordance with the provisions on liability for defective performance set out in Article 474 et seq. of the Turkish Code of Obligations. (Article 472/f.3 and Article 476 of the Turkish Code of Obligations). However, if the client, despite the contractor’s warning, insists on the work being carried out in a manner that is not in accordance with the quality agreed in the contract, for example, because it will reduce construction costs, the contractor shall not be liable for the resulting defect.