Turkish Commercial Code’s Viewpoint
Dr.Ecehan Yesilova Aras
Yasar University / Izmir
 The
steps of the insurer; its behaving
 During the process of fulfilling the
victim’s claim (compensation)
 According to Turkish New insurance law
(new) Commercial Code
 in force since 1/7/2012
 Liability insurance –for the first timeregulated under a separate division
 13 special provisions, regulated
consecutively
 Basic idea of legislator: Create the
position of 3rd party victim powerful, not
only for compulsory but also for noncompulsory liability insurances

Written Law
The intent of the legislator
How will insurance companies read the written
law? The way of insurer’s understanding, will
direct/create the practice
 New insurance law in force for 22 months
 Whether the sector exercises the written law
parallel to legislator’s intent will be Seen in every



otoh
single dispute in forthcoming days, as far as disputes arise,
will be understood what there are inside the mind of
insurers and whether Written law meets the needs of sector)
 Academic
interpretation, insurance sector
may develop parallel or not.
 What
or how do the insurers understand ;
their strategy about
• What kind of claims are suitable for settlement
outside the court?
• What kind of claims need to be judged
(court/arbitration)
• are not known properly yet by academics
 How
does court read the new provisions
(will be seen in forthcoming years)

VVG: Gesetz über den Versicherungsvertrag
(the text updated by 2001)
Liability Insurance: VVG § 149 – 158c

Why German Law as a main structure?
 Since 1950s commercial law built up on basis of HGB,
no reason to edge out the academic and judgemental collection of
past years, continuing over this (german commercial law)
inheritance
Why not 2008 text-VVG?
Germany put it in force after Turkish legislative
preparations has ended. When 2008-VVG text in
force, the draft Turk.Com.Code queue at Parliament,
no time to adopt, missed the train.

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Art. 1473:
Under a liability insurance contract, the
insurer shall pay indemnity to the victim
[VVG: insured] up to the amount stipulated in
the contract, for the liabilty of the insured
due to an event defined under the contract,
unless otherwise agreed, occured during
the time period of the contract, even if the
damage arises after the termination of the
contract.
Underlined sentences belong to VVG § 149
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

Art. 1473:“insurer pays to victim”:
basic improvement, mandatory, accepting
creditor= victim
+

Art.1478 gives victim the chance of “Direct Action”against
insurer

Is it necessary to regulate direct action, even it has regulated
that the victim is the creditor of the contract?

Yes, institute of direct action is different from establishing
the victim as creditor.

Due to these 2 articles, together, victim becomes more
powerful against insurer
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 Chance
for victim to sue the insurer
(even if there is no relation between
them)
 To argue the liability of the insured
 Basically, against the contract law !
 Getting decision against a person
(insured) who is not involved the
judgement
 Victim, rather than 2 steps-judgement
 gets 2 results just by 1 step-judgement:
• Insured is liable
• Insurer will pay up to the amount of the policy
a) Insurer (via direct action): The whole
judgement is executed on name and
behalf of insurer, the insurer takes all
procedural steps by himself
* direct action can also be directed outside the
court, then insurer decides alone either settlement
or jurisdiction within court
b) Insured: How will stand the insurer?
*As a secret hero behind the insured? or
*At first line, in front of the insured, by taking all control
of the procedure ?
Art. 1476 (Assistance of the Insurer)
 Contractual

liability
a) compensate rightful claim of the victim
b) protect the insured against unjust claim
 Insurer will take a step
• Whenever be informed about the claim
• Claim: outside/within the court
• Not necessary to establish the liability of insured
 By court decision
 Or arbitration
• Due to Direct Action, liability of the insured can be
established within trial against insurer, even without
existance of the insured




Art. 1475
The insured shall notify insurer about claim of
victim........immediatly
Breach of this duty reduces compensation (unless there
is actual knowledge of insurer: via media)
The insurer takes into consideration the degree of
negligence for late notification
Question: May insurer reduce the indemnity due to late
notification even against the 3rd party victim? Not
regulated
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
Is indemnity to be paid to victim automatically
due?
• If the insurer evaluates the claim as rightful
If unjust, till definite court decision, not due.
Then, until decision, interest will charge.
Ouestion:
Till the end of appeal judgement, more than 2 years along interest
runs, if the claim was at the begining within the policy limit,
But by addition of those years’ interest, exceeds policy limit,
how much will pay the insurer to the victim?
-insurer’s wrong decision –to be judged- rather than settlement
-insurer has to bear its result
-even if the total sum in decision exceeds the policy limit,
-providing that at the begining the policy can cover the whole
claim

Upon notice of the victim’s claim, within 5 days: The insurer may
choose
(a) to take the control of legal process against victim. Standing at first
line within the court
* responsibility of all legal transactions and costs belong to
insurer.
(b) Waits outside the play, Pays the compensation held by High Court.
*Costs belong to insured.
Question: legislative reasoning of this article says:
“pays without need of any other judgement”
What if the insurer assumes that the related risk is excepted from
the policy, can not he argue this now?

Within 5 days, unless and untill the choice of insurer, the costs of
essential transactions (objection, evidence determination) belong
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Art. 1474
 When a demand is claimed against
insured,
 Reasonable expenses regarding this
claim, covered by insurer.
 For payment beyond the policy limit,
agreement under policy is necessary.
 If insured requests, insurer shall advance
money.
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

By insurer with victim
no problem
Under which conditions wishes to agree, decides itself,
protects its own interest
By insured with victim
• Art. 1476(4)
• Even if agreement exceeds the policy limit, Insurer is liable only
within policy limit
• For validity against insurer, agreement must be approved
• 15 days from its notification
• insurer shall not refrain from approval for unjust causes;
insurer must have rightful causes to refuse




EXPENSIVE SETTLEMENT ?
reject all settlement?
No, should approve reasonable amount (according to its evaluation)
For the rest, insured will be liable itself.
 Upon
victim,
notice of claim or direct demand of
 Collection
 when the
of documents relating to risk,
investigation of insurer terminates,
however under any circumstances, after 45 days,
the insurer has to honour its due payment.
 Upon termination of 3 months, %50 of damage :
shall be advance payment.
 Calculation of the total amount of damage?
• conformity of parties, where no conformity;
• report of expert appointed by court


De lege feranda: %50 of policy limit
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