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

Know-how provider’s right to claim damages

for non-pecuniary loss in light of the legal nature of know-how

Lecturer Tuğçe ORAL

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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

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. In this sense, know-how contracts regulate the communication of know-how

from the provider to the recipient

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.

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.

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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).