Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi

Yazarlar: Doğuş Taylan TÜRKEL

Konular:Hukuk

DOI:10.33717/deuhfd.704816

Anahtar Kelimeler:Utmost Care,Road Carrier,Unavoidable Event,Objective Care,Culpa

Özet: The rule of utmost care (“en yüksek özen”, “größte Sorgfalt”) in Turkish Commercial Code (TCC) art. 876 in respect of the road carrier’s responsibility is based on the connection that the Federal Court of Justice of Germany (Bundesgerichtshof - BGH) made between the unpreventable and unavoidable event in CMR art. 17 II and the unavoidable event (“Unabwendbares Ereignis”) in the German Road Traffic Act (Straßenverkehrsgesetz - StVG) former § 7 II since the second half of the 1960s. Along with the Federal Court of Justice, the Austrian Supreme Court of Justice (Oberste Gerichtshof - OGH) also accepted the carrier’s duty of utmost care with regards to CMR art. 17 II, and later on, this judicial jurisprudence also affected the English case law. The accumulation of judicial jurisprudence created by high court was enacted by the reform of German transport law of 1998. In Turkish law, the rule of utmost care in HGB § 426 is kept intact in article 876 of TCC. The ideal carrier, on which the rule of utmost care is based, is required to take all applicable and reasonable measures expected from a very careful and prudent carrier - regardless of whether they are atypical or not. The limit of the effort that the carrier is required to make in order to fulfill its duty of utmost care extends to the situations, in which the measures and course of action to be taken are completely unbearable, absurd and therefore unexpected in the first instance. In this respect, the objective care that

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