Volume 3, Issue 1

The problem of punitive damages in tort law besets many modern legal systems, especially those belonging to the English common law tradition. It raises a number of the most fundamental questions: the aims and functions of punishment, those of delictual (tortious) liability, and generally the relationship between public (criminal) law and private law; and all that on the background of constitutional principles. No wonder that, in a series of recent decisions of the US Supreme Court, dissent was common and as a foreseeable reaction lengthy, learned academic articles appeared in the law reviews. The present author could not resist proffering an additional one, in the hope that a number of historical and comparative aspects might be of interest in the ongoing discussion.

It is said that the equivalence principle – promoting equivalence between the kinds of fault that are recognised and the prejudices suffered or interests protected – is a peculiarity of the French law of civil liability deduced from the general clause of liability enshrined in the French Civil Code. The principle is applied in different ways in contractual and extra-contractual liability. In fact, the equivalence principle is more of a facade than a genuine reflection of French law, which provides for both the differentiated protection of interests and a hierarchical ordering between them.

The new Turkish Code of Obligations, enacted by the Grand National Assembly on 11 January 2011, will take effect on 1 July 2012. While taking into consideration recent European legal developments, this article examines the tort provisions of the new Code in its social, political, and legal context. The abandoned Swiss Draft Project on the Revision and Unification of Civil Liability, the Principles of European Tort Law, and the Draft Common Frame of Reference, among others, are analysed and compared to the solutions adopted by the Turkish legislator. Besides, since they have had a significant influence on the new Code, special attention has been paid to decisions of the Turkish Supreme Court which have also been compared to decisions concerning similar cases taken in other European jurisdictions.