1. DEFINITION OF BARTER CONTRACT
While it was regulated as a barter contract in the abrogated Code of Obligations No. 818, the Code of Obligations No. 6098, which entered into force later, changed the barter contract to a contract for the exchange of goods. The reason for this change is not explained in the preamble of the Turkish Code of Obligations. The use of the term “exchange of goods” instead of the word “barter” is considered by us as an excessive result of the effort to purge the old Turkish words in the transition from the Code of Obligations No. 818 to the Code No. 6098, in other words, to update the language of the Code.
The definition of the agreement was made only in the Turkish Code of Obligations No. 6098, this time under the name of goods exchange agreement. The legislator defined the barter contract in Article 282 of the Law No. 6098 as follows: “A goods exchange agreement is an agreement in which one party undertakes to transfer the possession and ownership of one or more goods to the other party, and the other party undertakes to transfer the possession and ownership of one or more other goods as a counter performance.”
As a result, a barter contract is an agreement that requires the parties to exchange ownership and possession of the items that belong to them without the use of money while imposing a debt on both parties.
If this situation is explained with an example, a barter contract is established if Company A, which is established in Antalya province, gives bricks to Company B, which builds on the basis of the construction contract in return for flats, in an amount to be determined with an approximately equivalent price in return for the agreement by accepting one of the apartments built as a price.
2. REQUIREMENT AS TO FORM
Under normal circumstances, there is no formal requirement for the establishment of a contract of exchange of goods, provided that the provisions of proof are excluded. However, if the transfer of the goods subject to the exchange is subject to the official form requirement, the barter contract must also be established with the official form requirement. Otherwise, the contract will be deemed invalid. Within the scope of the example given above, since the transfer of immovable property is subject to the official form, in order for the construction company B to fulfill its debt obligation, it is imperative that the sales contract or, in the event that a preliminary contract such as a sales promise is established, this preliminary contract must be made in an official manner. Otherwise, the contract will be invalid.
3. ASSOCIATION WITH OTHER CONTRACTS
The values of the goods subject to the goods exchange agreement are expected to be approximately equal. If one of the goods is deficient, the difference may be made up by paying an equalization fee. In this case, it is no longer possible to talk about an exchange of goods contract, but a mixed contract. Although there are opinions that in case of a mixed contract, the primary performance should be determined and the provisions applicable to the primary performance should be applied to the whole contract, there is a predominant doctrinal opinion that this view is not in accordance with equity, and in cases where the barter contract is accepted as an accessory performance, the contract should be evaluated as a unique atypical barter contract.
The type of contract where a service purchase contract is regulated in exchange for the exchange of goods will not be accepted as a barter contract. Since the service relationship will not be considered as an exchange of goods, such contracts will only be considered as mixed contracts.
4. APPLICABILITY OF THE PROVISIONS OF THE CONTRACT OF SALE
With Article 283 of the Turkish Code of Obligations No. 6098, the legislator, by referring to the provisions of the sales contract, regulated that the provisions regarding the sales contract shall also apply to the goods exchange agreement. Accordingly, each party is deemed to be the seller in terms of what it undertakes to give and the seller in terms of what it undertakes to receive.
Article 284 of the same Law is regulated as follows: “The provisions of the sales contract regarding liability for possession and defects shall also apply to the goods exchange agreement to the extent appropriate”.
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