ROMAN LAW APPROACH TO THE IMPOSSIBILITY OF THE PERFORMANCE IN CONTACTS FOR WORK AND ITS INFLUENCES ON THE TURKISH LAW

In Roman law, contract for work is a specific type of contract called “locatio conductio” and contains obligations arising from lease, employment and work contracts. The legal characteristic of locatio conductio is controversial. According to the prevailing opinion, locatio conducto is a contract that responds to the need of a duty that renders the use of the property. In the contract for work, which falls under locatio conductio, impossibility of performance means a legal or physical impediment that leads to nonperformance or the nonconformity of the agreed piece of work. This impossibility may occur before or after the conclusion of the contract. In an event of subsequent impossibility; if the obligor is at fault, the contractor shall compensate the loss; if not, the obligatory relationship will be terminated and contractor will be discharged. When the impossibility occurs without fault, the problem of passing of risk will come into existence. In some Roman legal texts, contracts for work is arranged as if the contractor bears the risk; yet some others hold the party ordering work accountable for it, which appears to be an inconsistency. In our opinion, this does not create a contradiction nonetheless, since the aforementioned legal texts regulate such divisions, correspondent to material damage and monetary damage. Conclusively, the problem of passing of risk as a result of the objective impossibility of the performance is resolved within the general rule that states, “The injured party whose assets had been affected shall bear the risk”