The Concept of “Work” in Swiss and Turkish Judicial Decisions and Especially the Court of Cassation’s Approach regarding the Legal Character of Contracts about Cosmetic Surgery: A Current Perspective

As per contracts of work and services, the work contractor is responsible to undertake is the outcome of a conducted business or a provided service. Work, could be a material or a non-material outcome of a conducted business or provided service. The Swiss Federal Court which interprets the concept of “work” widely, in its latest decisions has introduced a limitation with regards to acceptance of the non-material outcomes of a conducted business or a provided service as “work”. Accordingly, in order for a non-material outcome of a conducted business or provided service to be considered as “work” under Article 363 OR / TBK 470 the correctness of the outcome should be objectively measurable and therefore it should be possible to qualify the outcome as either correct or incorrect. The Court of Cassation also interprets the concept of “work” widely. According to the Court of Cassation: “even though a contract for work or services, is a contract that gives rise to an obligation to conduct a business or provide a service, the significant aspect here is the objectively observed outcome of the conducted business or provided service as opposed to the business or the service itself. The contractor undertakes to produce an outcome (work) when entering into a contractual relationship with the customer. In this regard, work, is the material or non-material outcome of a conducted business or provided service”. Cosmetic surgery means a surgical operation towards a person’s physical integrity for cosmetic purposes. A contract regarding a cosmetic surgery is characterized as a contract of work and service by the Court of Cassation. However, it is observed that the Court of Cassation does not put enough emphasis on the issue that outcomes affected by factors which cannot be foreseen or measured by the party who is making an undertaking cannot be committed as an outcome of a conducted business or a provided service. Thus, achieving an outcome, for example, as a result of a treatment cannot be undertaken. The same situation is actually applicable for cosmetic surgeries as well. The Court of Cassation should re-consider its evaluation regarding the legal character of contracts regarding cosmetic surgeries. Provisions relating to agency should be applied here. If the result of an operation is undertaken as an outcome, an independent guarantee undertaking regarding the outcome should be considered along with an agency contract