The Warranty Liability of the Transferor of Economic Rights and Its Consequences Within the Framework of FSEK Art. 53-54

Abstract

This study examines the warranty obligation of the transferor of an economic right under Articles 53 and 54 of the Turkish Law on Intellectual and Artistic Works No. 5846 (“Law No. 5846”), the legal nature of this obligation, and the legal consequences arising from its breach. Article 53 of the Law No. 5846 regulates the transferor's warranty as to the existence of the transferred right by referring to the provisions of the repealed Code of Obligations. Following the entry into force of the Turkish Code of Obligations No. 6098, these references must be interpreted in light of Articles 191 and 193 of the Turkish Code of Obligations. This legislative change has given rise to the question of whether the scope of the transferor's warranty liability extends beyond negative damages to include positive damages where the transferor is at fault. Article 54 of the Law No. 5846, on the other hand, provides that even a good-faith transferee is not protected, thereby distinguishing intellectual property law from the principles of protection based on possession and reliance on the land registry that prevail in movable and immovable property law. The study comparatively analyzes cases involving the non-existence of the transferred right and the absence of the transferor's authority to dispose of the right in light of scholarly opinions and the case law of the Court of Cassation. It also examines the circumstances in which the provisions governing tort liability and unjust enrichment may apply, as well as the parties' ability to conclude limitation or exclusion of liability agreements within the limits of contractual freedom. The study concludes that, in order to reduce potential legal risks in practice, the scope of the transferor's warranty obligation should be clearly defined within the boundaries of contractual freedom.