Know how provider's right to claim damages for non pecuniary loss in light of the legal nature of know how

Author:Tugçe Oral
Position:Faculty of Law, Ankara University, Turkey
Pages:192-199
SUMMARY

The know-how contract is one of the most important means for transferring and developing technology. It is crucial to find out whether the parties of know-how contract have a right to claim damages for non-pecuniary loss in light of the legal nature of knowhow. In this article, I begin by defining the know-how contracts and in particular I will analyze the main obligations of the parties.... (see full summary)

 
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Know-how provider’s right to claim damages
for non-pecuniary loss in light of the legal nature of know-how
Lecturer Tuğçe ORAL
1
Abstract
The know-how contract is one of the most important means for transferring and
developing technology. It is crucial to find out whether the parties of know-how contract
have a right to claim damages for non -pecuniary loss in light of the legal nature of know-
how. In this article, I begin by defining the know-how contracts and in particular I will
analyze the main obligations of the parties. Secondly, I will deal with the definition and the
legal nature of know-how, since considerable uncertainty exists as to the degree or type of
protection regarding the legal nature of know-how. There are different opinions put forward,
which defines the legal nature of know-how as a property, an intangible asset, a monopoly
of fact and a personality right. Finally, and on the basis of the conclusion reached under the
previous section, I will discuss whether it is possible for know-how provider to claim
damages for non-pecuniary loss.
Keywords: know-how, legal nature of know-how, right to claim damages for non-
pecuniary loss in know-how contracts, the parties obligations arising from know-how
contracts
JEL Classification: K22, K33.
1. The definition of know-how contracts and parties’ obligations arising
from this contract
1.1. The definition of know-how contracts
The know-how contract, is a contract, whereby one of the parties (know-
how provider) undertakes to declare its know-how and provide the utilization of it,
whereas the other party (know-how recipient) undertakes to pay the contractual
price
2
. In this sense, know-how contracts regulate the communication of know-how
from the provider to the recipient
3
.
1
Tuğçe Oral - Faculty of Law, Ankara University, Turkey, oral.tugce@gmail.com.
2
Kirca, Çiğdem, ”Know-How Sözleşmesinin Hukuki Niteliği”, Ali Bozer’e Armağan, Ankara, 1998, p.
251-252; Erbay, İsmail, Know-How Sözleşmesi, Ankara, 2002; Koller, Beat, Der know-how-Vertrag
nach schweizerischem Recht unter besonderer Berücksichtigung der Leistungsstörungen und der
Vertragsbeendigung, Zürich, 1979, p. 25; Pfaff, Dieter, ”Der know-How-Vertrag im bürgerlichen
Recht”, BB 1974, p. 565.
3
Correa, Carlos M. , “Legal Nature and Contractual Conditions in Know-How Transactions”, Ga. J.
Int’l & Comp. L. Vol. 11:3, Y. 1981, p. 471. http://digitalcommonp.law.uga.edu/cgi/viewcontent.cgi?
article=1958&context=gjicl (last accessed: 30.10.2017).

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