Özet:

This article focuses on the pre-delivery disposition and damage provisions stipulated by the Mecelle (Ottoman Empire’s Islamic civil code) for sales contracts and compares them with the French Civil Code. The study then examines the works of the amendment commissions that focus on provisions for disposition and damages in terms of their connection with the French Civil Code. The criticisms that the Mecelle has been exposed to are closely related to the legal concept imposed by the French Civil Code. The Mecelle has been heavily criticized both during and after its implementation in terms of pre-delivery disposition and damage provisions. The fact that the Mecelle especially limited the sale of movable goods and left responsibility for damages to the seller was perceived as a serious problem in terms of the functioning of commercial law. The French Civil Code makes no mention of the delivery condition for goods being subjected to a new sale. Therefore, the French Civil Code provides a much more risk-free and profitable contract opportunity, especially for the trader. On the other hand, the customer faces the risk of losing the price sum along with the goods. The provisions on disposition and damage can be said to have been first criticized foreigners, then by Ottoman jurists who’d adopted Western legal concepts before finally making use of the fatwas of the four schools to amend the provisions on disposition alongside other provisions that were claimed to not meet the needs of the age. This study consists of an attempt to examine the need for amending the Mecelle in terms of the function and economic acceptances of its civil code rather than discussing the boundaries of the Hanafi school.

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