ERDEM-NEWSLETTER-2018-metin

389 MISCELLANEOUS Different Opinions in the Doctrine As we have already pointed out, in the event one spouse violates the loyalty obligation that arises due to marriage contract, it is a rather disputed subject whether or not the injured spouse may claim compen- sation from the third person who has had the extra-maritial relation- ship with the spouse who has committed the adultery 1 . According to one opinion, it is not possible to award compensation to the detriment of the third person, as there is no regulation in law in this direction. In fact, according to this view, the loyalty obligation is a relative obligation that exists only between the spouses. Third persons are under no such an obligation towards the spouse of the person he/she has been in a relationship with. According to this opinion, the person who has been involved in an extra-marital relationship with the adulter- ous spouse has not violated any absolute right of the deceived spouse 2 . According to another view, although the third person is not under any contractual, relative obligation towards the deceived spouse, he/she may be liable because of the violation of an absolute right. Accordingly, it should be accepted that a person’s emotional wealth is included in personal rights; the emotional relationship in marriage should be con- sidered within this scope and, thus, in the event of adultery, damages may be demanded from the third person who has violated the absolute right of the deceived spouse according to Turkish Code of Obligations (“TCO”) Article 49 3 . As an extension of this opinion, if the third party has acted with the sole purpose of harming the deceived spouse, he/ she shall be liable under TCO Article 49/f.2 4 . Furthermore, under the aforementioned provision: “Even if there is no provision of law that restrains the impairing act, the person who intentionally harms another with an immoral act is has to recover this loss .” 1 Erdem, Mehmet : Aile Hukuk, Istanbul 2018, s. 195 vd. 2 Oğuzman, Kemal; Seliçi, Özer; Oktay-Özdemir, Saibe: Kişiler Hukuku, İstanbul 2016, p. 183; Serozan, Rona : p. 464. 3 According to the same provision, “ The persons who injure another person with fault and with an illegal act is obliged to compensate this damage ”. 4 Çetiner, Bilgehan : “Aldatılmış Eş Manevi Tazminat Talep Edebilir mi?” , İstanbul Kültür Üniversitesi Hukuk Fakültesi Dergisi, 15 (2), 2016, 523 vd.