The Applicable Law to the Contract of MandateDoğan Kara
Today’s commercial and economic life has a character that transcends the borders of the countries. Knowledge and expertise gain importance in this economic structure. Therefore, in many fields such as consultancy, banking, medical sector, education, law, architecture, which require expertise, the contract of mandate has a wide application area. The fact that the contract of mandate manifests itself in many cases together with the power of representation or, in a more precisely, requires the power of representation raises the question of which regulations will be subject to the contract status and which law to be applied to the power of representation. In this respect, the grey areas, which are directly related to the authority of representation, should be considered as a whole and subject to the law applicable to the power of representation. In addition, the law to be applied to contract of mandate shall be determined by the determination of the general “contract status”, in other words “the law applicable to contractual obligations”. It should be remembered that the most important point in all these evaluations is the problem of qualification.
Vekâlet Sözleşmesine Uygulanacak HukukDoğan Kara
Günümüzün ticari ve ekonomik hayatı, ülke sınırlarını aşan bir karaktere sahiptir. Bu ekonomik yapı dâhilinde bilgi ve uzmanlık önem kazanmaktadır. Bu sebeple uzmanlık gerektiren danışmanlık, bankacılık, tıp sektörü, eğitim, hukuk, mimarlık gibi birçok alanda vekâlet sözleşmesi geniş bir uygulama alanına sahiptir. Vekâlet sözleşmesinin birçok durumda temsil yetkisi ile beraber kendini göstermesi ya da daha doğru bir ifadeyle vekâlet sözleşmesinin birçok durumda temsil yetkisini gerektirmesi, vekâlet sözleşmesi kapsamında yer alan hükümlerden hangilerinin akit statüsüne, hangilerinin ise temsil yetkisine uygulanacak olan hukuka tabi olacağı sorununu gündeme getirmektedir. Bu açıdan doğrudan doğruya temsil yetkisi ile ilgili olan gri alanlar bir bütün olarak değerlendirilmeli ve temsil yetkisine uygulanacak hukuka tabi olmalıdır. Bunun dışında vekâlet sözleşmesine uygulanacak olan hukuk, genel akit statüsünün, başka bir deyişle sözleşmeden doğan borç ilişkilerinde uygulanacak hukukun tespiti ile belirlenecektir. Unutulmamalıdır ki tüm bu değerlendirmeler kapsamında en önemli nokta, vasıflandırma sorununun nasıl çözümleneceği konusudur.
Today’s commercial and economic life has a character that transcends the borders of countries. Knowledge and expertise gain importance in this economic structure. Therefore, in many fields such as consultancy, banking, the medical sector, education, law, architecture, which require expertise, the contract of mandate has a wide application area. As a matter of fact, the contract of mandate manifests itself in many cases together with the representative authority or, more precisely, requires the representative authority raising the question of which regulations will be subject to the contract status and which law to be applied to the representative authority. Due to the similarity between the contract of mandate and the representative authority, the resolution of the qualification dispute is very important in the determination of the applicable law to the contract of mandate. Since, according to the qualification methods (lex causae method or lex fori method), gray areas can be evaluated within the scope of the representative authority or contract of mandate. In the determination of the subject, it is necessary to evaluate the areas touching the representative authority as a whole and to be subject to the same law. At the beginning of these areas, sub-power of attorney, substitution of mandate and the cases required special representative authority come together. These institutions should be considered within the concept of representative authority and subject to the law of the state in which the agent has his place of business according to Article 30, paragraph 2 of the International Private and Civil Procedure Law (Act No. 5718) that regulates the representative authority. This is because these institutions dispose the conditions under which acts of the agent bind the principal in relation to third parties. Therefore, possible legal conflicts that may arise as a result of subjecting gray areas to different legal systems will be prevented. On the other hand, the case that several persons conclude a contract of mandate as agents according to the substantive law and those of agents do not act together as a representative, cause an agency without authority. In the same way, when the substitution of mandate is available, the lack of authority to delegate the power of representation to another person as a representative or the authorization that is not given in cases where special representation is required lead to the agency without authority. Since the conditions required to be accountable the principal to third parties for the acts of agents are deficient in these cases, this deficiency falls into the application area of the Article 30, paragraph 2 of the International Private and Civil Procedure Law. The law to be applied to the indirect representation is always connected with the basic legal relationship with the substantive law and should be considered as its integral part. Therefore, the indirect representation should be subject to the law applied to the basic legal relationship. Outside of the grey areas, the applicable law to the contract of mandate shows parallelism with the general “contract status”, in other words “the law applicable to contractual obligations”. In the absence of a choice of law, the applicable law to the mandate will be governed by the most connected and closest law to the contract of mandate in accordance with the objective connecting factor that should be specified according to the characteristic obligation of mandate. In the contract of mandate, it is accepted that the characteristic obligation is the service obligation of the agent. This objective connecting factor is the habitual resident of the agent or if the contract of mandate was concluded in the exercise of a professional or commercial activity, where the agent has his place of business. Having regard to the complexity of today’s economic relations, the possibility of a more closely related law will be strengthened. Considering the state of all affairs, if there is a law more tightly related to the contract of mandate, that particular law shall govern the relationship between the parties in accordance with Article 24, paragraph 4 of the International Private and Civil Procedure Law. The exceptional application of the exception clause will be more important than the expected situation of this disposition in the present case. It should be noted that doctors, engineers, architects, lawyers, counselors, notaries, dentists, veterinarians and banks who have the capacity to act as agent in the contract of mandate will often perform their obligation of service on their own place of business. Accordingly, in the absence of a choice of law in these professional activities, the law which the objective connecting factor determines, will often be considered as the more closely related law with the contract of mandate.