A Comparison of the Mecelle and the French Civil Code in the Context of the Pre-Delivery Right of Disposition and Damages Provisions
İlknur Yaşar BilicioğluThis article focuses on the pre-delivery disposition and damage provisions stipulated by the Mecelle (Ottoman Empire’s Islamic civil code) for sales contracts and compares them with the French Civil Code. The study then examines the works of the amendment commissions that focus on provisions for disposition and damages in terms of their connection with the French Civil Code. The criticisms that the Mecelle has been exposed to are closely related to the legal concept imposed by the French Civil Code. The Mecelle has been heavily criticized both during and after its implementation in terms of pre-delivery disposition and damage provisions. The fact that the Mecelle especially limited the sale of movable goods and left responsibility for damages to the seller was perceived as a serious problem in terms of the functioning of commercial law. The French Civil Code makes no mention of the delivery condition for goods being subjected to a new sale. Therefore, the French Civil Code provides a much more risk-free and profitable contract opportunity, especially for the trader. On the other hand, the customer faces the risk of losing the price sum along with the goods. The provisions on disposition and damage can be said to have been first criticized foreigners, then by Ottoman jurists who’d adopted Western legal concepts before finally making use of the fatwas of the four schools to amend the provisions on disposition alongside other provisions that were claimed to not meet the needs of the age. This study consists of an attempt to examine the need for amending the Mecelle in terms of the function and economic acceptances of its civil code rather than discussing the boundaries of the Hanafi school.
Kabz Öncesi Tasarruf ve Hasar Hükümleri Bağlamında Mecelle ve Fransız Medeni Kanunu Mukayesesi
İlknur Yaşar BilicioğluBu makalede Mecelle’nin satım akdi için öngördüğü kabz öncesi tasarruf ve hasar hükümleri, Fransız Medeni Kanunu’nun hükümleriyle karşılaştırılacaktır. Ardından tadil komisyonlarının kabz hükümleri odaklı çalışmaları, Fransız Medeni Kanunu’yla paralellikleri bakımından incelenecektir. Mecelle’nin maruz kaldığı eleştiriler Fransız Medeni Kanunu’yla dayatılan hukuk tasavvuruyla yakından ilgilidir. Mecelle, kabz öncesi tasarruf ve hasar hükümleri bakımından yürürlüğü sürecinde ve sonrasında çokça eleştirilmiştir. Özellikle menkul malın satışının sınırlanması ve hasarın satıcıya bırakılması, ticaret hukukundaki işleyiş açısından ciddi bir sorun olarak algılanmıştır. Fransız Medeni Kanunu ise malın yeni bir satışa konu olması için teslim şartından söz etmez, satışlarda mülkiyetle birlikte hasar sorumluluğu da doğrudan müşteriye geçer. Bu yüzden Fransız Medeni Kanunu özellikle fazla ticaret yapan satıcı için çok daha risksiz ve kazançlı mukavele imkânı verir. Müşteri ise malla birlikte, bedelini de kaybetme riskiyle yüzleşir. Kabz hükümlerinin önce ecnebiler, ardından Batı hukuk tasavvurunu benimseyen Osmanlı hukukçuları eliyle eleştirildiğini, nihayet tadil sürecinde dört mezhebin fetvalarından istifade edilerek çağın ihtiyaçlarını karşılayamadığı iddia edilen diğer hükümlerle birlikte kabz hükümlerinin tadiline girişildiğini söyleyebiliriz. Bu çalışma Mecelle’nin tadil ihtiyacını Hanefi mezhebi sınırları bakımından tartışmak yerine, Fransız Medeni Kanunu’nun işlevi ve iktisadi kabulleri açısından inceleme denemesinden ibarettir.
The Ottoman Empire prepared the Mecelle to function as the civil code to complete the commercial code. Mecelle prohibited the customer from selling a purchased item before receiving it, and left the responsibility for damages to the seller up until the point the item was delivered. Due to this arrangement, the Mecelle was frequently criticized both during and after its implementation. The focus of criticism is that, although the Mecelle immediately transfers ownership of goods to the customer in a sales contract, it leaves the responsibility for damages to the seller until delivery. In other words, The Mecelle’s regulations regarding property and damage liability are presented as a legal contradiction. Although the responsibility for damages belongs to the seller until delivery, the benefits belong to the customer.
Meanwhile, the French Civil Code puts forth no legal obstacle for an undelivered good to be subject to a new sale, leaving the responsibility for damage only to the customer from the moment of sale. Ownership of goods is transferred to the customer at the moment the sales contract is signed. This link the French Civil Code establishes between the transfer of ownership and liability for damages is accepted as legally consistent and is always highlighted when criticizing the Mecelle. After the Mecelle, the Code of Obligations (1926), which is based on the Swiss Civil Code and was entered into force as the law of independent debts, transfers ownership of goods to the customer at the moment of delivery. The responsibility for damages to goods belongs to the customer from the moment the contract is signed. In this arrangement, customers have to bear all economic risks and loss of value for goods they do not yet own, control, or can interfere with. On the other hand, the seller does not have to bear any risk or loss of the goods being sold once the contract has been signed; however, property regarding the goods is protected until the moment of delivery. As can be seen, the Code of Obligations has made the exact opposite conditions than the Mecelle in terms of transfer of ownership and damage liability provisions regarding sales contracts. In this way, regulations protect sellers’ commercial activities while in return opening the door to serious problems that may be accrued by the customer. As a matter of fact, the next Turkish Code of Obligations (2011) abandoned the previous regulations, which were found to be extremely harmful to the customer, and left the responsibility for damage to the seller alongside any benefits from the goods. In other words, the Mecelle’s regulations that protect customers from liability for damages until delivery has returned.
Abul’ula found the fact that only the Mecelle was subjected to heavy criticism to be strange, despite the existence of various Western laws that have opposite provisions in terms of ownership and responsibility for damages. The Code of Obligations (1926), which came into force after the Mecelle, can be presented as a dramatic example of this determination. In the background of the Western-based criticisms directed at the Mecelle, the occurrence of economic results is quite likely to be achieved through legal practice rather than any concern for harmony between provisions. When remembering how the provisions of the French Civil Code, which supports liberal, secular, and absolute property, were instrumentalized and imposed on other nations, the Mecelle can be considered to have become a target due to its potential for resisting the pragmatist aims of the Western states that are trying to turn Ottoman lands into a profitable market. When encountering the Mecelle, which tried to reflect fiqh principles into legal practice and protected the financial rights of both the customer and the seller for this purpose through sensitive criteria by balancing them with the duties and responsibilities in a contract, Ottoman lawyers idealized the arrangement of the French Civil Code that focused on ownership, and over time the provisions of the Mecelle became marginalized. Provisions that prevent the sale of undelivered goods and left the responsibility for damages to the seller are obvious examples of what happened in this process. This article examines the process of the Mecelle being shelved as an old law in the context of the right of disposition before delivery and the issue of damage liability by focusing on the amendments to the Mecelle and on the legal regulations of the French Civil Code. The study finishes by attempting to determine the effect the French Civil Code had on the efforts of the Mecelle Amendment Commissions.
