What is a Contract For Work?

The work subject to the contract must be created directly by the contractor or under their supervision. If the contractor was chosen due to their individual characteristics for the performance of the work, the work must be performed personally by the contractor; however, if the contractor's personal characteristics are not essential, the work may be performed by another party. Unless otherwise stipulated in the contract, the tools to be used in the construction of the work to be created are provided by the contractor.

If the material for the creation of the work is provided by the contractor, the contractor is liable for defects in the material as if they were a seller. If the material is provided by the employer, the contractor is obliged to use the material with care and return any surplus. The commencement and execution of the work are also important.

Firstly, the contractor must perform the work they undertake to carry out under the contract for work within the framework of their duty of loyalty and care, also considering the employer's legitimate interests. The criterion for the contractor's duty of care is the conduct in accordance with professional and technical standards that a prudent contractor engaged in similar work would exhibit.

This criterion of care is referred to as the "objective criterion." If the contractor causes damage to the employer by acting contrary to the criterion of care during the creation of the work; or if auxiliary persons or subcontractors cause damaging conduct, the contractor is obliged to compensate for these damages. If the contractor does not commence the work on time, delays the work by acting contrary to the contract provisions, or if it becomes evident that the work will be delayed due to a reason not attributable to the employer, the employer may rescind the contract.

If, during the creation of the work, the work is produced defectively due to the contractor's fault or differs from what was stipulated in the contract, the employer may set a specific period and, if the defect is not remedied within this period, issue a warning that the work will be assigned to a third party, with the costs to be borne by the contractor.

The employer's obligation is to pay the price. The price can be agreed upon in advance or determined later. What is important here is that the payment of a price has been agreed upon in the contract. If the price has not been agreed upon in advance, it is determined according to the value of the work created and the contractor's expenses, pursuant to Article 481 of the Turkish Code of Obligations (TCO).

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If the work is delivered defectively without a reason attributable to the employer, the contractor's liability for defects arises. The employer is obliged to inspect the work after delivery and notify the contractor of any defects within a reasonable time. If a defect exists and has been notified to the contractor within a reasonable time, the employer may rescind the contract, demand a price reduction or gratuitous repair, and finally claim damages under general provisions.

The Code of Obligations does not prescribe any formal requirements for the conclusion of a contract for work. This means there is no specific formal requirement for the valid establishment of the contract. It can be concluded orally or in writing. It is beneficial to conclude it in writing for evidentiary purposes. However, for a construction contract in return for land share, which largely embodies the characteristics of a contract for work, the law prescribes qualified formal requirements. Therefore, such a contract must be concluded in an official form.

The subject of this action is the claim that arises between the parties in the event of the termination of the contract for work or if the contract is found to be contrary to procedural rules and principles.

Statute of Limitations for a Contract for Work

In the event that the work stipulated in the contract is defective, there is a two-year statute of limitations period for movables from the date of delivery, and a five-year period for immovables. However, if the contractor is grossly negligent, a 20-year statute of limitations period applies, regardless of the nature of the work.

Sample Contract for Work

Contract for Work

1. The parties to this contract are ………… (employer) and ……….. (contractor).
2. The contractor undertakes to paint a landscape picture with a nature view under this contract.
3. The employer agrees to pay a price of ………. for the agreed work.
4. The stipulated period for the creation of the work is 30 days following the signing of the contract.

Contractor Employer

………… …………

It should be noted here that we have taken the nature landscape painting as an example, so the subject matter of the contract may vary.

Difference Between a Contract for Work and a Contract of Service

The first difference between the two contracts arises in terms of time. In a contract for work, labor is expended to create a work within a specified period; whereas in contracts of service, continuous labor is expended within a specified period (e.g., one month). In a contract for work, the creation of the work is expected at the end of the period, while in a contract of service, the expenditure of labor within the given period is expected.

In other words, a contract for work involves the creation of a specific quantity of work within a specific period, while a contract of service expects the creation of an unspecified number of works within a specific period. Another important difference concerns independence. In contracts of service, orders, instructions, and supervision are involved. In a contract for work, the contractor does not receive orders or instructions from the employer. Thus, the contractor is in a more independent position.

Another point is that the law refers to "wage" or "salary" in return for the performance of a contract of service. In a contract for work, it refers to "price" or "remuneration." There are semantic differences between these two terms.

Indeed, the General Assembly of Civil Chambers of the Court of Cassation has expressed the differences between contracts for work and contracts of service in terms of remuneration, dependency, and time.

Difference Between a Contract for Work and an Employment Contract

An employment contract is essentially a contract of service. Therefore, the differences between a contract for work and a contract of service also apply to an employment contract.

Court of Cassation Decisions on Contracts for Work

"In the event that the work undertaken by the contractor is defective, contrary to the contractor's obligations to the employer; if the employer gives notification in accordance with the provisions of Article 474 of the Turkish Code of Obligations No. 6098 (Article 359 of the Code of Obligations No. 818) for patent defects, and Article 477 of the Turkish Code of Obligations No. 6098 (Article 362 of the Code of Obligations No. 818) for latent defects, they may exercise the rights granted in Article 475 of the Turkish Code of Obligations No. 6098 (Article 360 of the Turkish Code of Obligations No. 818). Incomplete work is work that was agreed to be performed fully according to the contract and its annexes but was not. A defective work is a work that does not possess the qualities stipulated in the contract or certain indispensable qualities. In other words, a defect is the absence of qualities that a good or work should normally possess according to the contract or legal provisions, or the presence of defects that should not exist. However, the contractor's liability continues for defects intentionally concealed and for defects that could not be detected during a proper inspection. If the existing defect in the work created was not noticed during a proper inspection at the time of delivery, a latent defect is deemed to exist.

Patent defects must be notified to the contractor within a reasonable time (TCO Art. 474) as soon as circumstances permit in the ordinary course of business, upon detection as a result of an inspection carried out personally or by an expert after the delivery of the work; latent defects must be notified to the contractor without delay as soon as they appear."

Court of Cassation 15th Civil Chamber 2020/1263 E. 2021/3148 K.

"In such cases, the court must first clarify whether the contractor has fulfilled their performance (obligation to create and deliver the work), and then whether they have fulfilled other obligations such as the occupancy permit condition, etc., as per the contract provisions. For this purpose, the contractor's obligations under the construction contract in return for land share concluded between the landowner and the contractor must be examined and evaluated within the framework of the contract provisions, and it must be examined whether the contractor has acquired rights over the independent section subject to the lawsuit, and consequently, whether the third party who acquired this right by assignment has a valid claim for cancellation of title deed and registration."

Court of Cassation 6th Civil Chamber 2021/1018 E. 2021/956 K.

You can submit your questions regarding contracts for work via the form at the bottom of the page.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy