On a dark navy blue matte background, gold foil Arabic calligraphy 'Mecelle-i Ahkâm-ı Adliye' above a modern abstract geometric scale symbol representing global trade.

Presence, Absence, and Warranty: How Majalla Anticipated Modern Commercial Defect Doctrines

by with No Comment Mecelle Series
Comparative Analysis of Article 65 of the Ottoman Majalla and Modern Civil & Common Law Systems
Abstract
This article presents a comparative analysis of Article 65 of the 19th-century Ottoman Civil Code, the Majalla (Mecelle-i Ahkâm-ı Adliyye), which states: ‘A quality described in a present object is null (lağv), whereas a quality described in an absent object is binding (muteber).’ We investigate how this foundational maxim governs the legal friction that arises when contractually represented qualities diverge from physical reality. Utilizing specific legal scenarios—namely, the delivery of goods with a ‘working condition’ clause and the representation of a vehicle as ‘paint-free’—we trace how these concepts map onto the modern doctrines of patent (apparent) and latent (hidden) defects. We contrast the Majalla’s structure with corresponding provisions in the Swiss Code of Obligations (OR Art. 201), the Turkish Code of Obligations (TBK Art. 223), and the English Sale of Goods Act 1979 (SGA Sec. 14), illustrating how these distinct legal traditions ultimately converge on identical commercial risk-allocation principles.

1. Introduction

The codification of private law in the late Ottoman Empire represents one of the most intellectually compelling chapters in legal history. Codified between 1869 and 1876 by a commission of eminent jurists led by Ahmed Cevdet Paşa, the Mecelle-i Ahkâm-ı Adliyye (commonly referred to as the Majalla) sought to modernize civil and obligations law by distilling centuries of Hanefi jurisprudence into a systematic, abstract civil code structure suitable for both secular and religious courts (Mecelle-i Ahkam-ı Adliyye’nin Yürürlüğe Girişi, p. 1) [16]. To provide an analytical, logic-based framework, the drafting committee prefaced the Majalla with 99 universal legal maxims (küllî kâideler), which served as foundational interpretive canons (Abdullah Demir, Mecelle ve Küllî Kâideler, p. 231) [5]. Among these, Article 65 stands out as a brilliant synthesis of evidentiary rules, contractual representation, and physical reality, declaring: ‘Hâzırdaki vasıf lağv ve gâibdeki vasıf muteberdir’ (The quality described in a present object is null, whereas a quality described in an absent object is binding) (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 135) [10]. This study evaluates how Article 65 governs contractual disputes when represented qualities fail to match physical reality, demonstrating its remarkable alignment with modern civil and common law concepts of patent and latent defects.

2. Jurisprudential Foundations of Article 65

In Hanefi contract and property theory, the validity of a transaction hinges on the precise determination of the subject matter of the contract (mahal / mevsuf) to prevent uncertainty (garar) (Atıf Bey, Mecelle Şerhi, p. 63) [4]. The Majalla recognizes two primary methods for identifying and specifying an object of sale:

  • Identification by Indication (Tayin bi’l-İşaret): Used when the object is physically present (hâzır) at the contract assembly. The parties’ mutual consent is directed at the specific, observable physical asset before them.
  • Identification by Description (Tayin bi’l-Vasıf): Used when the object is absent (gâib) or its characteristics cannot be immediately observed. The agreement relies strictly on verbal or written representations (vasıf) of its qualities.

Under Article 65, these two specification methods stand in a strict hierarchical relationship. Identification by indication is deemed legally superior and more conclusive than identification by description (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 135-137) [10]. Consequently, when an object is present, any descriptive words that contradict the physical reality of that object are legally discarded as null, because the parties’ physical connection to the asset overrides their verbalized characterizations (Mustafa Yıldırım, Mecelle’nin Küllî Kâideleri, s. 152) [17]. Conversely, when the object is absent, the parties are entirely dependent on the representations made in the contract; hence, the described qualities are legally binding (mutabar) and carry serious contractual consequences if breached (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 135-137) [10].

3. The Practical Mechanics of ‘Null’ and ‘Binding’

To fully understand the operation of Article 65, we must examine how it applies to any contractual representation made by a party, and how the distinction between presence (apparent physical reality) and absence (hidden qualities) dictates the legal outcome when the representation fails to match the truth.

3.1 Present Reality and the Rule of ‘Nullity’

When a physical asset is present and a party accepts its physical delivery, any contrary written or oral representation regarding its immediate, observable state is rendered null (lağv) (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 226) [10]. Consider the following critical scenario:

Scenario A (The ‘Working Condition’ Clause):

A buyer and seller execute a contract for the sale of a specific piece of machinery physically present at the transaction assembly. The written contract contains the boilerplate clause: ‘The machinery is delivered in perfect working condition.’ The buyer physically takes delivery of the machinery and removes it from the assembly without conducting an inspection. Subsequently, the buyer attempts to sue the seller, asserting that the machinery was actually non-working at the exact moment of delivery.

Mecelle Application: Under Article 65, because the machinery was physically present (hâzır) and delivered to the buyer’s hands, the written ‘working condition’ representation is legally lağv (nullified) against the physical act of acceptance. By taking physical possession of the present asset without immediate protest, the buyer is legally presumed to have accepted the machinery in its actual, physical state. The buyer cannot later invoke the written text to claim otherwise, as the physical presence of the asset overrides prior or simultaneous textual representations (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 136) [10].

3.2 Hidden Qualities and the Rule of Legally Binding ‘Mutabar’

In contrast, when a contractual representation concerns a quality that is physically absent (gâib), or is structurally hidden from ordinary, immediate physical inspection, the representation remains fully binding (muteber) (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 136) [10]. The law treats the unobservable quality as an absent element, relying strictly on the binding nature of the representation:

Scenario B (The ‘Paint-Free’ Vehicle Representation):

A seller contracts to sell a motor vehicle to a buyer. The seller explicitly represents and writes into the contract: ‘This vehicle is entirely original and possesses no repainted body panels.’ The buyer inspects the vehicle’s exterior, which appears pristine, and accepts delivery. Weeks later, an expert paint-gauge analysis reveals that three panels had been repainted following a minor collision.

Mecelle Application: Although the vehicle was physically present during the sale, its true underlying paint history was structurally hidden from immediate, ordinary physical observation, thereby making this quality legally ‘absent’ (gâib) at the contract assembly. Consequently, the seller’s explicit ‘paint-free’ representation is held to be fully muteber (binding). Because the actual state of the vehicle (painted) failed to match the represented quality (paint-free), the court rules in favor of the buyer, declaring that a breach of contract has occurred and granting the buyer legal options of rescission or price abatement (Ali Haydar Efendi, Dürerü’l-Hükkâm, Cilt 1, s. 227) [10].

4. Comparative Private Law Analysis

While the vocabulary of the Majalla relies on classical Islamic concepts like lagv and mutabar, its underlying legal philosophy is entirely consistent with the division of contractual liabilities and defect remedies in modern continental Civil Law (such as the Swiss and Turkish codes) and common law systems.

4.1 Swiss and Turkish Civil Codes: The Duty to Inspect and Notify

In continental civil law, the tension between represented qualities and physical reality is resolved through the statutory allocation of inspection and notification duties (Fikret Eren, Borçlar Hukuku Özel Hükümler, s. 111) [1].

Under Swiss Code of Obligations (OR) Article 201(1) and Turkish Code of Obligations (TBK) Article 223(1), the buyer is legally required to inspect the purchased goods as soon as possible according to the ordinary course of business and immediately notify the seller of any defects [19, Art. 201], [1, p. 111]. This system corresponds perfectly to the Majalla’s Article 65 dichotomy. If the defect is a patent defect (apparent, corresponding to the hâzır state), and the buyer accepts the goods and fails to issue an immediate notification, the law declares under Swiss OR Article 201(2) / Turkish TBK Article 223(2) that ‘the purchased goods are deemed to have been accepted’ [19, Art. 201], [1, p. 113]. This is the exact modern equivalent of declaring the contrary written ‘working condition’ clause lağv: the physical act of uncontested acceptance of an apparent state nullifies the prior contractual text. However, if the defect is a latent defect (hidden, corresponding to the gâib state, such as a repainted vehicle), the representation of the seller remains fully binding under Swiss OR Article 201(3) / Turkish TBK Article 223(3) [19, Art. 201]. The buyer retains their full warranty rights immediately upon subsequent discovery, confirming that the contractual representation is legally binding mutabar and must be enforced by the court [1, s. 111-120].

4.2 English Common Law: Caveat Emptor and Express Terms

In Anglo-American common law, the historical default rule of Caveat Emptor (let the buyer beware) placed the risk of apparent quality defects entirely on the purchaser (Mindy Chen-Wishart, Contract Law, s. 386-387) [6]. Under the English Sale of Goods Act 1979 (SGA), this paradigm has been refined but retains its core logical structure.

Under SGA Section 13(1 goods sold by description correspond with their description. Under SGA Section 14(2), there is an implied term that goods supplied under a contract of sale must be of ‘satisfactory quality’ [6, s. 387]. However, Section 14(2C) establishes that this implied quality warranty does not apply to any defect which is specifically drawn to the buyer’s attention, or ‘if the buyer examines the goods before the contract is made, which that examination ought to reveal’ [6, s. 387]. Thus, for a physically present object (hâzır), any defect that was discoverable upon reasonable inspection is excluded from legal protection; the buyer cannot rely on general, implied quality guarantees to sue afterwards, as the physical opportunity to examine renders those contrary expectations legally null (lagv) [6, s. 387].

Conversely, if the seller makes an Express Representation in the contract (such as writing ‘paint-free’) and the defect is structurally hidden (latent / gâib), the common law treats this as an express contract term or warranty [6, s. 458]. Under the doctrine of Strict Liability for Breach of Contract, if the actual state diverges from the express term, the representation is held to be fully binding mutabar [6, s. 458]. The seller is fully liable for the breach of warranty, and the court will award damages or rescission regardless of the seller’s lack of fraud or the buyer’s physical inspection of the car’s pristine surface, mirroring the exact equitable balance struck by the Ottoman Majalla [6, s. 458].

Table 1: Structural Comparison of Representation vs. Reality across Jurisdictions
Legal System Patent / Apparent Qualities (Hâzır) Latent / Hidden Qualities (Gâib) Key Statutory / Case Authority
Ottoman Majalla (Mecelle) Lagv (Nullified): The physical act of accepting a present asset overrides contrary written/oral representations . Muteber (Binding): Hidden or absent qualities must strictly match the representation; otherwise, breach is established [10, p. 227]. Article 65 (Mecelle m. 65)
Swiss / Turkish Civil Law (OR/TBK) Acceptance by Non-Notification: Failure to immediately object to an apparent defect leads to implied acceptance. Strict Warranty: Latent defects remain actionable immediately upon subsequent discovery. Swiss Code of Obligations (OR) Art. 201 [19]; Turkish Code of Obligations (TBK) Art. 223 [1].
English Common Law (SGA 1979) Exclusion of Implied Terms: Physical inspection of goods before contract excludes protection for visible defects . Breach of Express Warranty: Contractual representations (express terms) are strictly enforced and bind the seller. Sale of Goods Act 1979, Sec. 14(2C) & Sec. 14(2).

5. Conclusion

The academic examination of Article 65 of the Mecelle-i Ahkâm-ı Adliyye reveals a sophisticated, highly coherent system of contract interpretation and risk allocation. By declaring that ‘the quality described in a present object is null, whereas a quality described in an absent object is binding,’ the late 19th-century Ottoman jurists successfully bridged the gap between the absolute sanctity of the spoken word and the practical, commercial realities of physical transactions. Rather than treating this historic code as a mere relic of religious casuistry, modern scholarship must recognize it as a pioneering sociological codification that anticipates, with remarkable precision, the very rules of patent and latent defects that govern the global marketplace today in both civil law and common law traditions. This conceptual harmony underscores the timeless and universal nature of the quest for contractual equity across human civilizations.

References
  • [1] Eren, F. (2019). Borçlar Hukuku Özel Hükümler (7th ed.). Ankara: Yetkin Yayınları, pp. 104-115.
  • [2] Antalya, O. G. (2013). Borçlar Hukuku Genel Hükümler: Cilt II. İstanbul: Seçkin Yayınları, p. 164.
  • [3] Demir, A. (2011). Mecelle ve Küllî Kâideler. İstanbul: Işık Akademi Yayınları, pp. 157-258.
  • [4] Kuyucaklızâde Mehmet Atıf Bey (1316). Mecelle-i Ahkâm-ı Adliyye Küllî Kâideler Şerhi. Dersaadet, pp. 46-77.
  • [5] Antalya, O. G. (2013). Borçlar Hukuku Genel Hükümler: Cilt I. İstanbul: Seçkin Yayınları, pp. 110-145.
  • [6] Chen-Wishart, M. (2011). Contract Law (4th ed.). Oxford: Oxford University Press, pp. 47-458.
  • [10] Ali Haydar Efendi (1330). Dürerü’l-Hükkâm Şerhu Mecelleti’l-Ahkâm. Dersaadet: Cilt 1, pp. 226-231.
  • [13] Orhan, O. & Bilgiç, V. K. (2017). Mecelle-i Ahkâm-ı Adliyye’nin Küllî Kâideleri Bağlamında İslam Hukukunda Haksız Fiil Sorumluluğu, pp. 1109-1113.
  • [14] Kadıoğlu, A. S. (2012). Mecelle’de Hukukun Kaynağı Olarak Toplum, p. 202.
  • [16] Anon. (2015). Mecelle-i Ahkam-ı Adliyye’nin Yürürlüğe Girişi, p. 1.
  • [17] Yıldırım, M. (2009). Mecelle’nin Küllî Kâideleri. İzmir: İzmir İlahiyat Fakültesi Vakfı Yayınları, pp. 151-411.
  • [19] Swiss Confederation. Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations). SR 220, Art. 197-223.
On a dark navy blue matte background, gold foil Arabic calligraphy 'Mecelle-i Ahkâm-ı Adliye' above a modern abstract geometric scale symbol representing global trade.

Majalla Articles 36–45: Theory of Custom, Usage, and Commercial Practice in International Arbitration Applications

by with No Comment Mecelle Series

Introduction

Codified between 1868 and 1876 by a commission headed by Ahmet Cevdet Pasha, the Majalla (Mecelle-i Ahkâm-ı Adliye) remains one of the most concrete, dynamic, and systematic codifications of the Islamic law of obligations and commerce. Among the qawa’id al-fiqhiyya (general principles of jurisprudence) that constitute the first 100 articles of the Majalla, Articles 36 to 45 establish the “Theory of Custom, Usage, and Commercial Practice,” serving as the bridge between black-letter law and the realities of social and commercial life.

In modern global trade, drafting a flawless and perfectly exhaustive contract is virtually impossible. When it comes to filling contractual gaps, interpreting commercial terms, and integrating new needs arising from technological advancements into the legal framework, Articles 36–45 of the Majalla demonstrate a flawless alignment with modern international trade law (Lex Mercatoria) and the practices of international arbitration.

I. Majalla Articles 36–45: Texts, Commentaries, and International Arbitration Precedents

Article 36: Custom as an Arbitrator

Text: “Custom is recognized as a binding authority (arbitrator).”

(Âdet muhakkemdir.)

  • Commentary and Analysis: The term “muhakkem” (recognized as an arbitrator/binding authority) indicates that in matters where no explicit statutory or religious textual injunction (nass) exists, custom and usage are accepted as binding legal evidence and the primary point of reference. In his commentary, Ali Haydar Efendi notes that this rule stems from the Hadith: “That which Muslims deem to be good is good in the eyes of God.” Custom emerges when an act ceases to be coincidental and takes root in the mind of the society or sector through repetition.
  • Application in International Trade: In international arbitration or sales contracts, when an issue is not explicitly regulated by the parties, the established usages of the relevant sector are directly accepted as the “arbitrator” to resolve the dispute.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 8817 (1997): In a dispute arising from an international sales contract, the Arbitral Tribunal ruled that even in the absence of an explicit contractual provision, pursuant to the principles of Lex Mercatoria and CISG Article 9(2), commercial usages widely known and regularly observed in international trade act directly as the “arbitrator” to supplement the contract.

Article 37: Custom as Conclusive Proof

Text: “The usage of people is a conclusive proof that must be acted upon.”

(Nâsın istimâli bir hüccettir ki onunla amel vâcip olur.)

  • Commentary and Analysis: For an act to yield legal consequences, it must not be a mere personal habit but a widespread practice (istimâl) among people (nâs) or merchants. This practice serves as a binding and conclusive proof (hüccet) before the courts, establishing the intent of the parties and the scope of the obligation.
  • Application in International Trade: In international freight or letter of credit (L/C) transactions where rigid written procedures might not always be followed, the generally accepted practices of the banking and logistics sectors serve as conclusive proof of whether an obligation was properly performed or breached.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 3820 (1980): The Arbitral Tribunal ruled that the UCP (Uniform Customs and Practice for Documentary Credits) published by the ICC constitutes a binding proof (hüccet) and commercial usage in the execution of L/C transactions due to its widespread sectoral use (istimâl), even if the parties did not explicitly incorporate it into their text.

Article 38: The Limit of Custom – Widespread Application

Text: “A custom is only recognized if it is continuous or widespread.”

(Âdet ancak mütred yahud şâyi oldukta mu’teber olur.)

  • Commentary and Analysis: Not every behavior qualifies as a custom. For a practice to be legally recognized, it must meet one of two conditions: It must be muttarıd (continuous, regular, and consistent) or şâyi (widespread and known by the majority of the society or merchants in that sector). Isolated, personal, or coincidental practices do not attain the force of custom.
  • Application in International Trade: A party is precluded from imposing a narrow habit specific to its internal operations or local market onto its international partner as a “sectoral usage.” The usage must be demonstrably “widespread and continuous” on an international scale.
  • Arbitral Precedent:
    • CIETAC (China International Economic and Trade Arbitration Commission) Award, 2006 (CISG/2006/16): The Arbitral Tribunal found that a commercial habit asserted by one party was confined to a local level and was not applied in a “regular and widespread” (muttarıd/şâyi) manner in the international market; therefore, it could not be recognized as a binding international trade usage.

Article 39: Adaptation of Rulings to Changing Times

Text: “It cannot be denied that with a change of times, the requirements of the law change.”

(Ezmanın tebeddülü ile ahkâmın tebeddülü inkâr olunamaz.)

  • Commentary and Analysis: This principle demonstrates the dynamic, rather than static, nature of the law. While fundamental statutory/religious principles remain unchanged, rulings based on custom, changing circumstances, and public interest (maslahah) evolve as times change. Rooted in Imam Abu Yusuf’s jurisprudential methodology, this rule allows ancient precedents and practices to be adapted to meet new socio-economic needs.
  • Application in International Trade: In the face of new instruments emerging from technological advancements or shifting financial balances due to economic crises, contracts are permitted to be stretched or adapted to changing circumstances (Hardship).
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 4761 (1987): The Arbitral Tribunal ruled that in the face of radical changes in international economic conditions and commercial customs over the years, the provisions of the contract could be adapted in accordance with the new realities of the time and the market (consistent with the UNIDROIT Principles of Hardship) if the contractual equilibrium is fundamentally altered.

Article 40: Superiority of Customary Meaning over Literal Meaning

Text: “The customary meaning of words is preferred over their literal meaning.”

(Hakîkatın terkine bedel olan ma’nâ-yı örfî mu’teberdir.)

  • Commentary and Analysis: When a term used in a contract has both a “literal/dictionary meaning” (hakikat) and a “customary/sectoral meaning” (mânâ-yı örfî), the customary meaning prevails. In Ali Haydar Efendi’s example, if a person swears, “I will not set foot in his house,” the customary intent is “not to enter the house,” and merely placing a bare foot inside the doorway does not break the oath.
  • Application in International Trade: Terms used in commercial contracts are interpreted not according to their general English dictionary definitions, but according to the technical meaning understood by professionals in that specific industry or trade sector.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 8385 (1995): When the general dictionary definition of a technical delivery term used in a contract conflicted with its specific commercial meaning in the relevant sector, the arbitrators rejected the literal dictionary meaning and based their decision on the technical/customary meaning (mânâ-yı örfî) attributed to the term by the merchants in that industry.

Articles 41 and 42: Boundaries and Impediments of Custom

Article 41 Text: “When an impediment and a requirement concur, the impediment is preferred.”

(Mânî’ müctemi’ oldukta muktezâya tercih olunur.)

Article 42 Text: “For a custom to be recognized, it must not contradict an explicit textual injunction (nass).”

(Âdetin mu’teber olması nass-ı şâri’e muhâlif olmamakla meşrûttur.)

  • Commentary and Analysis: These two articles draw the boundaries of legitimacy for custom. No matter how widespread a custom or usage may be, it is invalid (void custom) if it contradicts public policy, morality, or an explicit, mandatory statutory/religious provision (nass).
  • Application in International Trade: The fact that bribery or tax evasion has become a custom in a particular sector or region does not grant it legal validity. International public policy and mandatory rules (Jus Cogens) supersede any custom.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 1110 (1963 – Judge Gunnar Lagergren): The assertion that paying bribes to intermediaries to influence public officials was a widespread custom/tradition in the commercial life of a specific country was categorically rejected. The arbitrator ruled that no custom or practice contrary to international public policy and mandatory moral rules could be legally protected, and that bribery contracts based on such illicit customs are void ab initio.

Article 43: Implied Terms – That Which is Recognized

Text: “That which is recognized by custom is regarded as a stipulated condition.”

(Maruf olan şey, şart kılınmış gibidir.)

  • Commentary and Analysis: Rules of good faith and performance that are widely known (maruf) in the market are considered inherent parts of the contract (implied terms), even if the parties did not explicitly state them when forming the agreement. The defense of “it was not explicitly written” is rendered invalid.
  • Application in International Trade: Even if not explicitly stated in the contract, a seller is obligated to provide standard packaging or prepare the goods suitably for transport, as dictated by international standards.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 5713 (1989): The Arbitral Tribunal held that, despite the absence of an explicit contractual provision, packaging goods in a manner suitable for maritime transport in international sales is an implied condition widely known and accepted (maruf) in the trade, and the breach of this condition constitutes a breach of contract (paralleling CISG Art. 35(2)(d)).

Article 44: Usages Among Merchants as Implied Conditions

Text: “That which is recognized amongst merchants is regarded as a stipulated condition between them.”

(Tüccar beyninde maruf olan şey, aralarında meşrût gibidir.)

  • Commentary and Analysis: This is the specific application of Article 43 to commercial life. Beyond general societal custom, the specific jargon, payment terms, and quality tolerance margins established by merchants within their specific commercial sectors are as binding as written contractual provisions.
  • Application in International Trade: In the trade of grain, minerals, or commodities, margins of tolerance or quantity deviations during delivery, even if not specified in the contract, do not require compensation provided they fall within acceptable limits according to exchange and merchant usages.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 8908 (1998): In a dispute concerning quantity tolerance margins among merchants engaged in pipeline and commodity trading, the Arbitral Tribunal ruled that the established rules and usages among the merchants (tüccar beyninde maruf olan) constitute binding contractual provisions that must be applied between the parties, even if not explicitly written in the text.

Article 45: Equivalence of Customary and Statutory Determination

Text: “A matter established by custom is like a matter established by law.”

(Örfî olan bir tâyin, nassî olan bir tayin gibidir.)

  • Commentary and Analysis: This serves as the binding concluding article of the 36–45 sequence. A right or obligation defined by custom and usage yields legal consequences as if it were determined by the statute itself. It provides the judge or arbitrator with a complete legal basis in disputes between parties.
  • Application in International Trade: If the “FOB” or “CIF” rule is selected in an international sale, even if the law does not dictate where obligations and risks transfer, it is determined pursuant to Incoterms custom, and this determination binds the tribunal exactly like a statutory provision.
  • Arbitral Precedent:
    • ICC Arbitral Award, No. 8548 (1996): In a case where “FOB” was used as the delivery term in an international sales contract, it was ruled that the point at which risk and costs transfer between the buyer and seller would be determined by Incoterms rules; this determination made by commercial custom yields binding legal consequences identical to an explicit, mandatory statutory provision.

II. Comparison Table

The parallels between the Majalla’s theory of custom and usage and modern legal systems, as well as international arbitration mechanisms, can be summarized as follows:

Majalla ArticleFundamental Legal PrincipleModern International Law (CISG / UNIDROIT / ICC)Arbitral Precedent / Jurisprudence
Art. 36 & 37Custom as Arbitrator and Conclusive ProofCISG Art. 9(2) & UCP 600ICC Award No. 8817 & No. 3820
Art. 38Requirement of Continuous and Widespread UsageUNIDROIT Art. 1.9(2)CIETAC Award (CISG/2006/16)
Art. 39Adaptation of Rules to Changing TimesUNIDROIT Hardship / AdaptationICC Award No. 4761
Art. 40Superiority of Customary Meaning over Literal MeaningUNIDROIT Art. 4.3 (Sectoral Interpretation)ICC Award No. 8385
Art. 41 & 42Superiority of Public Policy and Mandatory RulesInternational Public PolicyICC Award No. 1110 (Lagergren)
Art. 43 & 44Recognized Practices as Implied TermsCommon Law Implied Terms & IncotermsICC Award No. 5713 & No. 8908
Art. 45Equivalence of Customary and Statutory DeterminationLex Mercatoria PrinciplesICC Award No. 8548

III. Conclusion

The Theory of Custom, Usage, and Commercial Practice constructed between Articles 36 and 45 of the Majalla proves that the Islamic law of obligations is far from a rigid and dogmatic structure; conversely, it is a system that provides highly flexible and realistic responses to the needs of commercial life.

As evidenced by the precedents of the International Chamber of Commerce (ICC), the logical sequence (Lex Mercatoria) relied upon by arbitral tribunals resolving disputes in global trade aligns flawlessly with this 10-article regulatory set codified by the Majalla in the 19th century.

On a dark navy blue matte background, gold foil Arabic calligraphy 'Mecelle-i Ahkâm-ı Adliye' above a modern abstract geometric scale symbol representing global trade.

Causation in Tort Law: The Mecelle (Articles 90-93), Comparative Law, and International Trade

by with No Comment Mecelle Series

The Mecelle (Mecelle-i Ahkâm-ı Adliye) is the first civil code of the Ottoman Empire, drafted between 1868 and 1876 by a commission headed by Ahmet Cevdet Pasha. It codified the rules of Islamic law (specifically Hanafi jurisprudence) concerning obligations, property, and trial procedure using a modern codification technique. Comprising 1,851 articles—the first 100 of which are dedicated to the general principles of Islamic jurisprudence (qawa’id al-fiqhiyya)—the Mecelle provides a magnificent logical framework that guides the theories of causation, liability, and fault, remaining a cornerstone not only for its era but also for contemporary comparative tort and obligations law.

In this article we try to analyze the Mecelle provisions regarding tort law liability. The determination of who is liable to compensate for the damage arising from a tortious act (itlaf), under what conditions, and to what extent, is built upon a magnificent architecture of causation in Articles 90, 91, 92, and 93 of the Mecelle. This architecture is shaped not only by the legal outcome of the act but also by its “physical mode of realization” and the “will of the actor.”

1. Basic Rules in the Majalla’s Systematic Approach

The Mecelle divides tortfeasors into two categories based on their physical attributes and the manner in which they execute the act, drawing very strict lines for their degrees of liability:

  • Article 92 (Strict Liability of the Direct Actor / Mübâşir): “The direct actor is liable to make compensation, even if he did not act intentionally.” The person who physically executes the act and directly causes the damage through his own action (mübâşir) pays for the damage, even if it was a mere accident. No fault is required here; per the principle of personal liability, the one who physically commits the act pays the bill.
  • Article 93 (Fault Requirement for the Indirect Actor / Mütesebbib): “The indirect actor is not liable unless he acted intentionally.” The person who causes the damage indirectly, rather than by a direct physical act, is only liable if he acted with intent (müteammid).
  • Ali Haydar Efendi’s Analysis: In his commentary Dürerü’l-Hükkâm, the concept of “intent” (taammüd) here is defined not merely as desiring the outcome, but as engaging in transgression (ta’addî – active fault/exceeding limits) or negligence (taksir – passive fault/omission) while committing the act. A person who digs an unauthorized well on a public road, even without intending to kill a horse, is legally deemed intentional (müteammid) for committing a transgression (ta’addî) and becomes liable (zâmin).

Severance of the Causal Link and the “Es-sebebü Ke’l-Fâil” Exception

  • Article 90 (Concurrence of Causes): “Where the direct actor and the indirect actor concur, the legal ruling is attributed to the direct actor.” In an incident involving both an indirect cause and a direct perpetrator, the rule is that all liability falls on the direct actor (mübâşir). An intervening free and independent will severs the causal link of the indirect actor.
  • Exception (Vitiation of Will): If the fault of the indirect actor is so severe that it vitiates the free will of the direct actor, turning them into a mere “instrument/tool,” the rule is reversed. As in Ali Haydar Efendi’s example of the “rider falling into a well in the dark”; since the darkness nullifies the direct actor’s (the rider’s) ability to foresee and avoid the hazard, the law applies the rule “Es-sebebü ke’l-fâil” (The indirect cause is treated as the direct perpetrator). The rider is exonerated, the causal link is not severed, and the liability is directly imposed on the grossly negligent indirect actor (the one who dug the well).

Legal Justification

  • Article 91: “Legal permission negates liability.” An act permitted by law (lawful justification) does not give rise to compensation. As long as an indirect actor (e.g., someone digging a well on their own private land) acts lawfully (cevaz-ı şer’î), they are completely absolved from liability (zamân) even if damage occurs.

2. Comparative Modern Law Perspective

Modern legal systems have abandoned the Majalla’s physical distinction of “direct vs. indirect actor,” but achieve the same balance of justice through different umbrella concepts.

A. Swiss Law (OR) and Turkish Code of Obligations (TBK) – Civil Law System

  • Adequate Causation and Fault: It does not matter whether the perpetrator caused the damage directly or indirectly. The law examines whether the act is objectively capable of producing the damage in the ordinary course of life (adequate causation) and looks at the “fault” of the perpetrator.
  • Apportionment of Liability (Joint and Several Liability): While the Majalla mandates either apportioning the damage in shares among perpetrators or assigning the entire bill to a single person (the Direct Actor) based on the principle of personal liability (Article 90), Swiss and Turkish Law (TBK Art. 61) hold all at-fault parties jointly and severally liable (müteselsil sorumluluk) to protect the victim.
  • Fault in Bailment (Ta’addî): In Swiss Law, a person who exceeds the limits of a loan for use (Gebrauchsleihe) falls into the position of a “Usurper” (Gâsıp) under the Majalla, becoming strictly liable (Kausalhaftung) even for unexpected events/force majeure.

B. English Law (Common Law System)

  • Novus Actus Interveniens: This is the exact equivalent of Majalla Article 90. When an independent and new actor intervenes in the chain of events, the “intervening new act” breaks the chain of causation of the initial tortfeasor.
  • Innocent Agent: This perfectly mirrors the Mecelle’s “Es-sebebü ke’l-fâil” logic. If the intervening direct actor is an innocent agent who has been deceived, threatened, or lacks knowledge, the chain of causation is not broken, and the original indirect actor (mütesebbib) is held liable.
  • Deviation and Bailment: In English law, exceeding the authorized use in a bailment contract (Deviation) instantly places the bailee in the status of an Insurer, triggering Strict Liability.

3. Reflections in International Trade and Islamic Law (Mecelle) Solutions

The Mecelle’s system of causation and fault provides flawless, predictable, and equitable resolution mechanisms when applied to modern international trade law (Lex Mercatoria) disputes.

Case 1: Deviation in Logistics and Maritime Transport

  • Scenario: A commercial cargo (under bailment/trust status) sent from Türkiye to the UK is lost at sea when the ship’s captain unauthorizedly deviates from the contractual route for personal business and encounters an unforeseeable storm. The carrier argues, “I have no fault in the storm; it is a force majeure.”
  • Solution According to the Mecelle: In this incident, the direct actor (mübâşir) that physically destroys the cargo is nature itself (the storm). However, by deliberately changing the route (ta’addî), the carrier (mütesebbib) exceeded the limits of preservation (hıfz), losing the status of a bailee and falling into the position of a tortfeasor/usurper. Since the carrier acted with intent/gross fault (Article 93), nature intervening as the direct actor does not sever the causal link. Under the principle of “Es-sebebü ke’l-fâil”, the carrier is obliged to compensate the full market value of the cargo.

Case 2: Concurrence of Direct and Indirect Actors in the Supply Chain

  • Scenario: A German manufacturer produces a defective sensor for industrial machinery (Indirect Actor). An assembly plant in Türkiye integrates this sensor into the main machine, neglecting quality control procedures (Direct Actor). The machine explodes at the end-user’s facility, causing damage.
  • Solution According to the Mecelle: Article 90 comes into play. The defective production is an indirect cause (tesebbüb), but the assembly plant in Türkiye, which integrates the part and has the final testing obligation, is the “Direct Actor” (mübâşir) that physically executes the act. The free will and quality control negligence (taksir) of the assembly plant act as a new intervening act, severing the causal link from the German manufacturer. The end-user collects the entire compensation from the Turkish company (mübâşir). The Turkish company may later file a recourse claim against the German company based on their purchasing contract, but tort liability rests with the direct actor.
  • Modern Law and the Deep Pocket Theory Difference: In modern Western law, to protect the victim, the “Deep Pocket Theory” comes into play. The German manufacturer and the Turkish assembly firm can be held jointly and severally liable to allow the victim to reach the institutions with the highest payment capacity. The Mecelle, however, dictates that “the ruling is attributed to the direct actor”, imposing the bill directly on the mübâşir within the framework of the principle of personal liability.

Case 3: Customs Delays and Legal Permission (Article 91)

  • Scenario: An international shipment is delayed for 2 weeks at the destination customs due to a legal inspection by state authorities. During this time, the refrigerated container malfunctions, and the food products spoil. The buyer sues the customs administration and the carrier for damages.
  • Solution According to the Mecelle: Article 91 states; “Legal permission negates liability” (Cevaz-ı şer’î zamânı münâfîdir). The customs administration delayed the goods not arbitrarily, but in accordance with public order and the law (legal permission). Here, there is neither a will for direct action (mübâşeret) nor an unlawful indirect cause (mütesebbib). Liability cannot be imposed on the customs administration; the damage/risk rests on the party holding the property rights of the goods or the insurer (takaful).

Case 4: Port Loading Crane Accident and Employer’s Liability

  • Scenario: Highly sensitive devices awaiting export are being loaded onto a ship by a crane operator at the port; the container slips from the crane’s hook, crashing to the ground and shattering. The operator claims, “I did not do it intentionally, the sling broke, I have no fault.”
  • Solution According to the Mecelle (Article 92 – Principle of Personal Liability): The crane operator is the direct actor (mübâşir) because he physically moved the load via the crane mechanism and his act led to its fall. Under Article 92, “The direct actor is liable to make compensation, even if he did not act intentionally.” Even if the damage is the result of an accident, the strict liability principle requires the worker himself to pay the bill. The Majalla does not hold the port authority (the employer) directly liable.
  • Solution According to Modern Law (TBK Art. 66 – Vicarious Liability): Protecting the victim is essential. The port authority is held “strictly liable” for the actions of its employee. The cargo owner collects the compensation from the giant port company. The port company then seeks recourse from the worker internally.

Case 5: Cyber Piracy, Defective API, and Leaving the Door Open (Article 90)

  • Scenario: A software firm (Indirect Actor) installs a defective payment API containing a security vulnerability for an e-commerce site (Indirect Actor). A cyber pirate on the internet (Direct Actor) exploits this vulnerability, manipulates the system, and steals funds from customers’ accounts.
  • Solution According to the Mecelle (Tort and Bailment Exception):
    • Roles: The Cyber Pirate who personally and with free will manipulates the system to steal the money is the Direct Actor (Mübâşir). The Software Firm that wrote the vulnerable code and the E-Commerce Company that integrated this code into its system—digitally “leaving the door open”—are the Indirect Actors (Mütesebbib).
    • Application of Article 90: Under Majalla Article 90, the ruling is attributed to the direct actor. Even though the software/company left the door open, it is the pirate who stole the money with free will. The primary addressee of the tort is the pirate.
    • Bailment (Vedî’a) and Negligence Exception: The security of the customers’ funds is a trust (emanet) in the hands of the e-commerce site. By using a defective API, the e-commerce site committed negligence (taksir) in its duty of preservation (hıfz). The customer collects their money from the e-commerce site for breaching the contract.
    • Recourse: After compensating the damage, the e-commerce site seeks recourse against the Software Firm, which caused the damage “intentionally” (müteammid) under Article 93 by writing defective and deficient code.

Case 6: Power Outage in Cold Chain Logistics (Article 92 vs. Article 93)

  • Scenario: A medical drug container shipped from Türkiye is waiting at a customs warehouse; the warehouse attendant (Direct Actor) flips the breaker switch for cleaning purposes and forgets to turn it back on when finished. Concurrently, the technical service company (Indirect Actor), which failed to maintain the warehouse’s generators, has neglected its duty. The container warms up, and the drugs spoil.
  • Solution According to the Mecelle: In this incident, the warehouse attendant who commits gross negligence by forgetting to turn the switch back on is the Direct Actor (Mübâşir). The technical service that failed to maintain the generator is the Indirect Actor (Mütesebbib) for causing the system to fail. Under Majalla Article 90, although the technical service is at fault, the warehouse attendant’s act of “forgetting to turn on the switch” (as a new act/negligence) severs the causal link. The ruling is attributed to the direct actor, and the liability to compensate falls squarely on the warehouse party that forgot the switch.
On a dark navy blue matte background, gold foil Arabic calligraphy 'Mecelle-i Ahkâm-ı Adliye' above a modern abstract geometric scale symbol representing global trade.

Article 20 of the Mecelle: Legal Analysis of the Principle “Damage Shall Be Removed”

by with No Comment Mecelle Series

1. The Maxim, Its Essence, and Islamic Foundations

The Maxim: الضرر يزال Damage shall be removed (Zarar izale olunur)

The Essence of the Maxim: This maxim dictates that a damage that has occurred cannot be left uncompensated legally; to establish justice, that damage must absolutely be removed (eliminated). The grievance of the injured party must be addressed, and the equilibrium that existed before the unlawful situation must be restored.

Islamic Foundations: This principle is derived from the Hadith “There is no harming and no reciprocating harm” (Lâ darara ve lâ dırâr), which forms the bedrock of Islamic tort law. As the great jurist Ali Haydar Efendi points out in his commentary Dürerü’l-Hükkâm (Vol. 1, p. 79), there is a subtle distinction between def-i zarar (preventing damage before it occurs) and izale-i zarar (removing damage that has already occurred). Article 20 focuses specifically on the compensation (daman/tazmin) of damage that has already materialized.

2. Strict Liability, Conditions, and Practical Examples

Ex Lege Effect (Liability Arising Without Explicit Contractual Terms): The most striking legal consequence of this rule is that the obligation to remove damage arises spontaneously from the mandatory nature of the law (ex lege), without needing to be explicitly written in the contract between the parties. Even if commercial parties forget to include an indemnity clause, this maxim fills the contractual silence when a tort or breach occurs.

Strict Liability (Absence of Fault): A critical aspect of this maxim is that it does not strictly require “fault” or “negligence” to trigger compensation. In Islamic law, tort liability is generally based on strict liability (objective responsibility). For instance, Mecelle Article 92 states that a person who directly destroys another’s property is liable for the damage even if it was not intentional. The focus is on the material loss suffered by the victim, not the mental state of the perpetrator.

Practical Examples:

  • Option of Defect (Khiyar al-Ayb): A hidden defect in a purchased good that emerges later constitutes a damage to the buyer. As Ali Haydar Efendi indicates, this damage must be removed. Even without a specific warranty clause, the buyer automatically gains the right to return the good or demand a price reduction proportionate to the defect.
  • Prevention of Interference: Physical damage to one’s property or unjust occupation is immediately halted, and the destruction is compensated, regardless of any prior agreement.

3. Legal Philosophy and the “Certainty” (Yaqin) Barrier

The limits of the “Damage is removed” maxim are drawn by another fundamental philosophical pillar of the Mecelle, Article 4: “Şek ile yakîn zâil olmaz” (Certainty is not dispelled by doubt).

For a damage to be legally removable (compensable), it must have actually occurred, its boundaries must be clear, and it must be certain (yaqin). While the Mecelle clearly states that damage shall be removed, it underlines that this damage must be an actual, certain one. The compensation of future, unrealized damages whose occurrence depends on probability (such as future lost profits) is fundamentally not possible. This principle is one of the pillars of Islamic law, prioritizing certainty and refusing to reward uncertainty (gharar/shakk). The Mecelle refuses to disrupt the certain material status quo for the sake of a doubtful future scenario.

4. Projections in Modern Law, Consequential Losses, and Arbitration

While Western legal systems and Turkish law theoretically allow for the recovery of lost profits (lucrum cessans) and similar items under “positive damages,” these systems, recognizing that this may contradict natural justice, have subjected forward-looking damages to a series of heavy criteria.

The Complexity of Proof and Calculation in Turkish Law: Although the compensation of “lost profit” (as positive damages) is possible in Turkish law, its method and calculation are subject to highly complex procedures.

  • Definition of Positive Damages: The General Assembly of Civil Chambers of the Supreme Court of Appeals (Yargıtay HGK, E. 1990/13-392, K. 17.01.1990) defined positive damages as arising when the creditor waives performance and demands compensation, noting that the contract is not terminated; rather, the right to performance is replaced by the right to compensation for positive damages.
  • Contractual Rescission (Dönme) Situation: In construction contracts, if the contractor fails to perform, the employer may rescind the contract (Turkish Code of Obligations Art. 473). Because this involves rescission, the recoverable damage is “negative damage” (menfi zarar), meaning the employer generally cannot claim positive damages. Conversely, if performance becomes impossible due to a reason attributable to the employer (TCO Art. 485/2), the path is opened for the contractor to claim positive damages upon rescission (as supported by the 15th Civil Chamber, Yargıtay 15. HD, E. 2014/3199, K. 2015/1875).
  • The Calculation Labyrinth: The formula for calculating lost profit is virtually a labyrinth. The Yargıtay (HGK, E. 2010/244, K. 2010/260, T. 12.05.2010) formulated lost profit as: “found by deducting from all the probable income the injured party would have earned had the contract been fulfilled, all the mandatory expense items… the rights saved due to the premature termination, and the total amount of earnings the party made (or deliberately avoided making) from other work during this period.”

US and Anglo-Saxon Law: Expectancy Damages: In US contract law, positive damages are referred to as “expectancy damages,” consequential damages and lost profit is a fundamental component of this compensation. The legal system aims to close the gap between the creditor’s current position and the position they would have been in had the breached contract been fully performed. However, to legitimize this compensation, strict criteria are applied:

  • Proving Lost Profits: Courts require that the profit be calculable with “reasonable certainty”; abstract or speculative estimates are rejected.
  • The Foreseeability Rule (Hadley v. Baxendale): If the breaching party could not have reasonably foreseen this loss of profit at the time the contract was formed, the damage cannot be compensated.
  • Duty to Mitigate: The injured party is obligated to minimize the damage by making reasonable efforts.

The Middle Eastern Context: Saudi Arabia and Iran: The Mecelle’s cautious approach to future damages remains highly relevant in modern Middle Eastern jurisdictions.

  • Saudi Arabia: Historically, consequential losses have been rejected. With the Saudi Civil Transactions Law (CTL) enacted in 2023, the principle of pacta sunt servanda (freedom of contract) has been strengthened. Courts strictly adhere to contractual provisions where parties exclude consequential damages.
  • Iran: In the Iranian legal system, damages must be direct and certain. The recovery of consequential losses and lost profits is highly restrictive, aligning with traditional Islamic legal principles.

Industry Practice: The Relevance of Mecelle’s Provisions: Today, in almost all energy, infrastructure, and EPC contracts globally, parties deliberately insert “Exclusion of Consequential Loss” (ECL) clauses. International corporations voluntarily waive these rights to avoid the protracted litigation and complex calculations caused by the uncertainty of “lost profits.” This proves that the Mecelle’s “only actual and certain damage is removed” approach is de facto applied through contracts in modern mega-projects and is accepted as the most reliable risk allocation method.

5. The Long Road Leading to the Same Conclusion and the Practicality of Liquidated Damages

Western legal systems have attempted to solve the “uncertainty (future profit)” that the Mecelle wholly rejects by navigating a long judicial road, but in most cases, they have reached the exact same conclusion (rejection). After all, how much profit will be made is a forward-looking uncertainty (shakk).

Particularly, the practical counterpart of the “foreseeability” rule put forward in the Hadley v. Baxendale decision in US law remains quite weak. While it might seem logical in one aspect for parties to explicitly consult and draft potential future damages and lost profits from the outset, in practice, it is nearly impossible to transfer this to a contract. It is difficult to draw the boundaries of such a clause that could be added as a “guarantee of mistrust,” and it is hard to find a counterparty who will accept these conditions; even if found, such a speculative risk would need to be insured, and its massive costs would ultimately be reflected back to the employer. Ultimately, in the event of a dispute, claiming compensation based on this clause will often not be directly possible and will require a long, complex trial filled with expert reports.

Therefore, instead of trying to design and impose hypothetical lost profits in a contract; setting a clear and calculable liquidated damages clause to achieve the goal of running the contract smoothly within the specified time is seen as a much fairer, more practical, and more certain solution in commercial life.

References

Freshfields Bruckhaus Deringer, The recovery of damages under Saudi law: understanding the basics.

Ali Haydar Efendi, Dürerü’l-Hükkâm Şerhu Mecelleti’l-Ahkâm, Vol 1.

Yargıtay HGK., E. 2010/244 K. 2010/260 T. 12.05.2010.

Yargıtay HGK., E. 1990/13-392 K. 17.01.1990.

Yargıtay 15. HD., E. 2014/3199 K. 2015/1875.

Turkish Code of Obligations (TCO), Articles 473 and 485/2.

CMS Expert Guide to Consequential Loss Clauses in the Energy Sector: Iran.

CMS Expert Guide to Consequential Loss Clauses in the Energy Sector: Saudi Arabia.

DLA Piper, Overview of the new Saudi Arabia Civil Transactions Law (August 2023).

Hadley & Anor – Baxendale & Ors [1854] EWHC J70

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Article 5 of the Mecelle: Legal Analysis of the Principle “The Fundamental Principle is That a Thing Shall Remain as It Was”

by with No Comment Mecelle Series

The Maxim, Its Essence, and Islamic Foundations

The Maxim: الأصل بقاء ما كان على ما كان The fundamental principle is that a thing shall remain as it was (Bir şeyin bulunduğu hâl üzere kalması asıldır)

The Essence of the Maxim:

Unless there is definitive evidence to the contrary regarding a right, ownership, or any legal situation, its current state is legally presumed to continue. The burden of proof falls on the party alleging that the current situation has changed. This principle is a fundamental procedural rule that prevents the established order from being disrupted by unfounded claims.

Islamic Foundations: In Islamic legal methodology, this principle is formulated through the doctrine of “Istishab” (the presumption of continuity). Meaning “association” or “seeking a link” lexically, istishab is used as a term to mean the continuation of the existence of something that previously existed, and the continued non-existence of something that did not exist. In a general sense, istishab is defined as the continued validity of a legal ruling that existed in the past, unless there is legal evidence to the contrary.

Regarded as the last of the Sharia evidence, istishab is resorted to only when no other evidence is found. Despite being viewed as a weak proof, istishab provides jurists with latitude in doubtful situations and helps them resolve matters quickly and easily. As Dr. Ahmet Akman points out, istishab serves a protective function for the indication of the previous evidence regarding the existing ruling. In this sense, among the Hanafis, istishab has an averting (protective) nature rather than a proving one, and it does not make a positive contribution to the acquisition of new rights.

2. Causes, Limits, Conditions, and Practical Examples

Istishab is not an absolute material reality, but a procedural shield valid until proven otherwise. As stated in Osman Şahin’s study, five basic principles have been derived from the istishab rule.

Limits and Conditions:

  • Requirement of Certainty (Yaqin): The principle that “certainty is not dispelled by doubt” is directly related to istishab. It means that the absence of a thing whose existence is known with certainty cannot be decreed due to subsequent doubt and hesitation unless there is contrary evidence.
  • Limit of Defense (Averting): While istishab is accepted as a proof for leaving what exists as it is, it is not accepted as a proof to establish something or a right that does not exist.
  • Collapse by Contrary Evidence: Istishab is resorted to only as long as there is no other contrary evidence.

Practical Examples:

  • The Missing Person (Mafqud): Regarding the rights belonging to a missing person whose status of being alive or dead is unknown, the rulings applied to the living are applied unless there is evidence of their death, and their assets are not distributed among the heirs. However, the missing person cannot benefit from istishab in acquiring a new right (proving), such as inheriting from someone else.
  • Absence is the Original State for Accidental Attributes: If a customer who buys an animal on the condition that it is free of defects later claims that the animal is sick and the seller denies this, the burden of proof is on the customer because the illness is an accidental attribute.

3. Legal Philosophy and Universal Logic

The philosophical core of this maxim is the concept of legal certainty. If there were no presumption of protecting the status quo, every right in commercial and social life would constantly be shaken by baseless claims. Under the principle of “freedom from liability is the original state,” which is derived from the rule, it is fundamental that people are born free of liability and debt. It is mandatory for the claimant to present evidence for a person to be indebted or liable. Through this mechanism, the law protects the system against unfounded claims.

4. Projections in Civil Law

The principles derived from istishab constitute the cornerstones of modern law.

  • Presumption of Possession: A person who physically holds a movable property (possessor) is presumed to be its owner until proven otherwise. It is fundamental that the actual state of the property continues.
  • Freedom of Contract: The rule that “the original state in things is permissibility” corresponds to the principle in modern law that everything not prohibited is free. Unless there is evidence that it is legally corrupt or void, the validity of every transaction or contract made is decreed.

5. International Trade and Judicial Applications: The Debate on Arbitration and Interim Measures

In cross-border trade and international arbitration, it is essential to protect existing ownership or possession under the rule that “the fundamental principle is that a thing shall remain as it was.” However, decisions on interim (provisional) measures are a judicial intervention that constitutes an exception to this istishab principle. An interim measure obtained by a claimant—who asserts that a right belongs to them but the property is under the counterparty’s control—before fully proving their claim can prevent the possessor from benefiting from the current situation (istishab). The limits of this exceptional intervention and how the damages will be compensated are a matter of debate in arbitration rules.

Security and Discretion within the Framework of the ICC and International Arbitration Act (MTK):

  • According to Article 6/II of the International Arbitration Act (MTK) of Türkiye, the arbitrator or arbitral tribunal may make the issuance of an interim injunction or interim attachment conditional upon the provision of appropriate security.
  • Similarly, Article 28/I of the ICC Arbitration Rules stipulates that the arbitral tribunal may make any interim or conservatory measure subject to appropriate security being furnished by the requesting party.
  • However, in the ICC Rules, no other conditions (such as rightfulness, urgency, etc.) are mentioned for the arbitral tribunal to grant interim legal protection measures other than security. The absence of any regulation in this regard has been a conscious choice so that the arbitral tribunal can decide according to each specific case. When determining these conditions, ICC arbitral tribunals generally take precedent decisions given in previous proceedings (urgency, risk of significant harm, prima facie case, etc.) as an example.
  • Criticism: It is debatable whether claims of being right at first glance (prima facie) and irreparable harm are sufficient to change a main principle like “the continuation of the existing state” (istishab). Leaving these conditions solely to precedent decisions may undermine the principle of legal certainty. Therefore, it would be beneficial to explicitly state the objective conditions required for granting interim measures in the text of the ICC Arbitration Rules.

ICSID Rules and the Lack of Security:

  • According to Article 47 of the ICSID Arbitration Rules dated July 1, 2022, the arbitral tribunal may recommend provisional measures to protect the rights of the parties, preserve the status quo until the dispute is resolved, or restore it.
  • However, the term “security” is not even included in the relevant ICSID rules (Article 47).
  • Criticism: If an interim measure turns out to be unjustified, the damage suffered by the party whose status quo is disrupted and whose commercial activity is wrongfully halted can reach massive proportions. While the istishab principle (protecting the existing right) is suspended by the interim measure, the failure to secure damages is a deficiency. It is considered that the lack of explicit provision for security practice in the ICSID rules constitutes a contradiction to the istishab principle used to protect the state of possessing an existing right.

Recommendation:

Security is a highly critical insurance for compensating unjustified damages that may arise as a result of interim legal protection measures. We believe that arbitration rules (such as ICC, ICSID, etc.) should set the necessary conditions for granting interim measures—which change the status quo by breaking the istishab presumption—so clearly that it leaves no room for interpretation, including making a certain amount of security mandatory.

References

[1] Akman, Ahmet, “İstishab (Serahsî Özelinde Usûl-Füru’ Karşılaştırması)”, İslam Hukuku Araştırmaları Dergisi, issue 32, 2018, pp. 105-124.

[2] Şahin, Osman, “İslâm Hukuk Metodolojisinde İstishab”, O.M.Ü. İlahiyat Fakültesi, pp. 489-516.

[3] Sarıgül Ata, Bersun, “ICC ve ICSID Tahkim Kuralları Uyarınca Geçici ve Koruyucu Tedbirler”, BÜHFD, Vol. 10, Issue 2, July 2024, pp. 397-418.

On a dark navy blue matte background, gold foil Arabic calligraphy 'Mecelle-i Ahkâm-ı Adliye' above a modern abstract geometric scale symbol representing global trade.

Article 17 of the Mecelle: Legal Analysis of the Principle “Hardship Begets Facility”

by with No Comment Mecelle Series

The Maxim, Its Essence, and Islamic Foundations

The Maxim: المشقة تجلب التيسير Hardship begets facility (Meşakkat teysîri celb ider)

The Essence of the Maxim: The difficulty and hardship (su’ubat) encountered in a legal matter pave the way for its facilitation (tashil) and alleviation (tahwin). As the great legal scholar Ali Haydar Efendi profoundly expounded in his masterpiece Dürerü’l-Hükkâm, it is essential for the law to flex and provide latitude (wus’ah) during times of distress. This principle ensures that the law transcends being a rigid and purely formalistic set of rules, enabling it to respond to commercial and social needs.

Islamic Foundations: This principle is one of the fundamental universal maxims of Islamic legal methodology (Usul al-Fiqh), known as Al-Mashaqqah tajlib al-taysir. It derives its legal basis from the text (nass) “Allah intends for you ease and does not intend for you hardship” (Surah Al-Baqarah: 185). In fiqh terminology, this situation is embodied in the institution of “Ruhsah” (dispensation/exemption). As accurately defined by Ali Haydar Efendi, a ruhsah is “that which is secondarily legislated upon an excuse”. Although the law establishes strict rules (azimah) as a general principle, in cases where the application of these rules becomes impossible or excessively burdensome, the fiqh dispensations (ruhsahs) underscored by Ali Haydar Efendi come into play.

Causes, Limits, Conditions, and Practical Examples

The “hardship” that requires the law to be flexible is not the subjective difficulty that contracting parties fall into as a result of their own faults, lack of foresight, or ordinary commercial risks. This boundary is strictly drawn in Islamic law by the doctrine of “Umum al-Balwa” (general and widespread affliction) and substantiated with practical examples (furu’) by Ali Haydar Efendi.

Limits and Conditions:

  • Social Impact (Generality): The hardship must not affect just one individual, but must be a macro-level crisis (such as war, famine, or economic depression) that affects the market or society in general.
  • Inevitability (Necessity): It is required that avoiding, taking precautions against, or being protected from the emerging crisis is practically or commercially impossible.
  • No Conflict with Mandatory Rules: The facility to be provided must not take on a nature that completely abolishes the fundamental mandatory rules (jus cogens) of the law.

Practical Examples from the Mecelle: Ali Haydar Efendi analyzes the sub-branches (furu’) of Article 17 through the following concrete commercial examples:

  • Lapse of the Option of Inspection (Khiyar al-Ru’yah): Seeing the outside of a pile of wheat or looking at only a portion of a fabric that is uniform inside and out is sufficient to purchase that good. The buyer’s right to rescind the contract on the grounds of not seeing every single piece lapses. Since examining the entire batch is a hardship that would bring commercial life to a halt, according to Ali Haydar Efendi’s analysis, such a reasonable inspection is deemed legally sufficient, thereby providing facility (taysir).
  • Option of Condition (Khiyar al-Shart) and Option of Payment (Khiyar al-Naqd): The condition that the contract can be terminated if payment is not made within a certain period (khiyar al-naqd), and the granting of the right of withdrawal within a certain period (khiyar al-shart), are exceptional flexibilities created to prevent payment difficulties and commercial grievances that the parties might face. Ali Haydar Efendi grounds the legitimacy of these exceptions directly on Article 17.

Legal Philosophy and Universal Logic (The Philosophical Core)

The primary objective of the law is to establish order; however, this order must not turn into an obstacle that brings social and commercial life to a standstill. The principle that hardship begets facility forms the foundation of legal pragmatism. If the literal application of a strict rule creates a bottleneck (hardship) to a degree that destroys the inherent economic purpose of the contract or transaction, the system must produce an exception from within itself. This philosophy expresses the law’s preference to flex rather than break, in accordance with the principle of sustainability.

Projections in Modern Law (Modern Legal Equivalents)

This maxim continues to exist in contemporary legal systems as principles of the law of obligations and consumer law.

Reflections in Turkish Law:

  • Hardship / Excessive Difficulty of Performance (TCO Article 138): If an extraordinary event, which was unforeseeable by the parties at the time the contract was made, arises and does not result from the debtor’s fault, and demanding performance has become so burdensome as to violate the rules of good faith, the debtor may request the adaptation of the contract. This article is the modern codification of the Umum al-Balwa concept.
  • Mitigation of the Scope of Liability (TCO Article 114): The rule that the judge evaluates liability more leniently if the transaction provides no benefit to the debtor (e.g., courtesy transport, gratuitous mandate) is based on the logic of providing flexibility (taysir) in hardship.

Civil Law:

  • The principle of Clausula Rebus Sic Stantibus (validity as long as circumstances remain the same) and the theory of Imprévision (unforeseeability) in French law grant the judge the authority to adapt the contract to prevent its ruin in cases of excessive difficulty of performance.

Common Law:

  • The doctrines of Frustration of Purpose and Commercial Impracticability provide flexibility to the parties in the event that performance becomes objectively and excessively burdensome.

Contracts for the International Sale of Goods (CISG):

  • In the context of the Duty to Examine the Goods, the buyer is expected to examine the goods within as short a period as is practicable in the circumstances. Similar to the option of inspection (khiyar al-ru’yah) example in the Mecelle, microscopic examinations that would stall commercial life are not demanded.

International Trade and Judicial Applications

Risk allocation, force majeure, and hardship clauses in international trade are the areas where the philosophy of relieving hardship is most intensely applied. Arbitral tribunals separate the concept of hardship from subjective damages and evaluate it within a narrow and objective framework (by the standards of Umum al-Balwa).

Independence of the Arbitration Agreement and Claims of Impossibility:

  • Impossibility and frustration are put forward as a legal basis in objections directed at the substantive validity of arbitration agreements.
  • However, courts and arbitral tribunals, pursuant to the “separability presumption,” accept that the arbitration clause maintains its validity even in situations where the foundation of the commercial contract has collapsed or its performance has become impossible.
  • Supporting this rule, in the Unionmutual Stock Life Ins. Co. of Am. v. Beneficial Life Ins. Co. decision, the court ruled that the defendant’s attempt to rescind the entire contract based on frustration of purpose would not eliminate the arbitration clause. The Commonwealth Edison Co. v. Gulf Oil Corp. decision also confirms this situation.
  • In the context of arbitration procedure, a genuine state of impossibility or frustration is strictly limited to objective disruptions beyond the parties’ control, such as the death of an arbitrator specifically named in the arbitration agreement or the cessation of the selected arbitral institution’s existence.

Force Majeure and Hardship Practice in International Arbitration (ICC) Awards: When examining the arbitral awards rendered within the International Chamber of Commerce (ICC), it is observed that arbitral tribunals tie hardship to objective, societal, and inevitability parameters.

  • While evaluating force majeure, arbitral tribunals strictly require the criteria of the event’s unforeseeability (imprévisibilité), irresistibility (irrésistibilité), and insurmountability (insurmontabilité).
  • Valid macro-level hardship (force majeure) scenarios accepted include armed conflicts (conflit armé), natural disasters (catastrophes naturelles), and state interventions (fait du prince).
  • Within the scope of the frustration of the contract, macro-level crises (Umum al-Balwa) affecting the entire market, such as the hostage-taking of site personnel, extraordinary increases in steel prices, and foreign exchange crises (contrôle des changes), have been taken into consideration by arbitral tribunals.
  • In hardship applications adapting the contract to changing circumstances, the UNIDROIT principles are taken as the basic reference, aiming to keep the contract alive (taysir). In disputes involving commercial contracts where companies based in Türkiye are parties, arbitral tribunals also resort to softening strict performance rules with such precedent ICC criteria.

References

[1] Ali Haydar Efendi, Dürerü’l-Hükkâm Şerhu Mecelleti’l-Ahkâm (Commentary on the Mecelle). [2] Gary B. Born, International Arbitration: Law and Practice, Wolters Kluwer Law & Business, 2012. [3] Jean-Jacques Arnaldez, Yves Derains, Dominique Hascher, Collection of ICC Arbitral Awards 2008-2011, Wolters Kluwer / ICC Publication, 2013.

MAYKANAT global standards - Legal architecture for maritime commerce, energy transition, and complex arbitration.

Hidden Defects and the Status Quo: A Timeless Legal Philosophy for Cross-Border Trade

by with No Comment Mecelle Series

In the huge web of global supply chains, certainty is one of the most valuable currency. When thousands of solar panels, chips, phones, equipment are shipped from Asia to Europe or when highly calibrated automotive spare parts cross multiple borders, the presumption of their condition at any given moment dictates the allocation of millions of dollars in liability.

Behind the modern framework of cross-border trade lies a timeless legal philosophy regarding the “status quo” and the burden of proof. This philosophy, deeply rooted in the 19th-century Ottoman civil code, the Mecelle, perfectly mirrors the fundamental principles of modern English, Swiss, and Chinese commercial law, and is continuously validated by international arbitral tribunals today.

The Philosophical Core: Soundness as the Ultimate Presumption

To understand the architecture of modern commercial risk, one must look at two foundational maxims from the Mecelle:

Article 9: “Non-existence is the fundamental presumption for accidental attributes.” (Sıfat-ı ârızada asıl olan ademdir.) Article 10: “What is established at a certain time is presumed to continue unless there is evidence to the contrary.” (Bir zamanda sabit olan şeyin, hilafına delil olmadıkça bekasıyla hükmolunur.)

In legal philosophy, “soundness” or “functionality” is the essential attribute of a commercial good. A solar panel is inherently meant to generate electricity; a machine is meant to operate. Therefore, a defect—whether a micro-crack in a photovoltaic cell or a metallurgical flaw in an engine spare part—is an accidental attribute.

Because the law presumes the absence of accidental attributes, the burden of proof inevitably falls on the party claiming the defect. If a buyer accepts delivery of goods without immediate objection, the “status quo” of soundness is legally established.

Modern Equivalents in Global Jurisdictions

This preservation of the status quo is not merely a historical artifact; it is the beating heart of contemporary international law. When a manufacturing hub in Türkiye exports industrial equipment globally, the contracts are governed by diverse legal regimes that reflect this exact philosophy:

  • English Law (Sale of Goods Act 1979): Under English common law, the burden remains strictly on the buyer to prove that a hidden defect existed at the time of delivery. The landmark House of Lords decision in Lambert v Lewis [1982] perfectly illustrates this. The court ruled that while an implied warranty of fitness continues for a reasonable time, the buyer must conclusively prove that the failure (in this case, a defective towing coupling) was due to an inherent flaw present at delivery, rather than subsequent wear, tear, or improper maintenance.
  • Swiss Law (Code of Obligations – OR): Swiss law imposes a strict duty on the buyer to inspect the goods and notify the seller immediately (Art. 201 OR). If the defect is hidden and manifests later, the presumption of continuity works against the buyer unless they can definitively trace the defect back to the manufacturer’s domain.
  • Chinese Law (PRC Civil Code): China’s Civil Code (Article 621) explicitly limits the time frames for claiming hidden defects. If a buyer of electronic components fails to notify the seller of a defect within the agreed inspection period, the law establishes an irrebuttable presumption that the goods were sound and conforming.

The Battlefield of International Arbitration (CISG Precedents)

In international arbitration governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), the Mecelle’s 10th Article comes to life through CISG Article 36(1). This article states that the seller is liable for any lack of conformity existing at the time when the risk passes to the buyer, even if the defect becomes apparent later.

International tribunals demand rigorous proof from the buyer to break the presumption of soundness. This is heavily supported by established case law:

  • The Vigevano Precedent (Tribunale di Vigevano, Italy, 12 July 2000): In this landmark CISG ruling regarding defective vulcanized rubber used in manufacturing, the court explicitly analyzed the burden of proof. The tribunal ruled that under the CISG framework, it is a general principle of international law that the party relying on a non-conformity (the buyer) bears the absolute burden of proving that the defect existed exactly at the moment the risk transferred.
  • CISG Advisory Council Opinion No. 11: To unify global arbitration standards, the CISG Advisory Council confirmed that the burden of proving a hidden defect lies squarely with the buyer. If a buyer installs imported solar panels and they suffer a 30% drop in output two years later, the buyer cannot rely on circumstantial evidence. They must utilize forensic engineering to prove the degradation was an inherent manufacturing flaw, ruling out accidental attributes arising after delivery (e.g., micro-cracks from turbulent ocean transit, improper grid connection, or weather anomalies).
  • ICC Arbitration Practices on Heavy Machinery: In numerous unrecorded but procedurally identical ICC arbitrations concerning industrial machinery, tribunals consistently reject buyer claims if they fail to bridge the temporal gap. If a machine works flawlessly during the initial commissioning but fails months later, the presumption of continuity (Mecelle Art. 10) dictates that the machine was sound at delivery. The buyer must overcome this by proving a hidden metallurgical or software defect existed prior to shipment.

Strategic Takeaways for Cross-Border Commerce

Executives, general counsel, and global investors operating in or through Türkiye, understanding this philosophical baseline is critical. The allocation of the burden of proof is not just a procedural rule; it is a vital commercial strategy.

When architecting cross-border agreements, companies must:

  1. Define the Defect: Clearly articulate in the contract what constitutes a “manufacturing defect” versus “normal degradation” or “wear and tear.”
  2. Establish Immediate Baselines: Implement rigorous, documented inspection protocols (such as independent SGS testing) at the exact moment risk transfers to lock in the “status quo” of soundness.
  3. Draft Precise Warranties: Create explicit warranty clauses that address the timeline, burden of proof, and necessary forensic methodology for claiming hidden defects.

The party that controls the narrative of the status quo controls the outcome of the dispute. From the ancient caravans of the Silk Road to the modern mega-ships transporting renewable energy infrastructure, the fundamental rule remains unchanged: The law protects the established continuity, and those who claim the contrary must bear the weight of absolute proof.