THE CONCEPT OF CONTRACT
I.
Definition of Contract
Lack of a Statutory Definition. — Although thoroughly regulating contracts, the Code
of Obligations (Borçlar Kanunu) (CO) does not provide, strictly speaking, a definition of
contract (akit). The adoption of a statutory definition of contract seems actually unnecessary,
and perhaps inappropriate. Albeit resting on a basic understanding, the idea of contract is
present in people’s conscious. Yet, from an educational standpoint an attempt of definition is
salutary.
Variety of Definitions. — Various definitions of contract may be formulated on the
basis of its fundamental features. However, we may basically retain the following one: “A
contract is an agreement creating legally binding obligations between its parties.”
II.
Nature of Contract
A contract is a juristic act (hukuki işlem). It follows from this rough, but fundamental,
statement that the understanding of the legal nature of contract is dependent upon the
elucidation of the concept of juristic act. However, juristic acts constitute a specific category
within legal phenomena.
A)
Legal Phenomena
Concept. — All social behaviors or natural occurrences are not, in a given society and at
a given time, taken into consideration by the legal system. While regulating social life
expansively, the law does not attach legal consequences (hukuki sonuçlar) to every human
conduct or natural event.
For instance, events such as the rain or the bloom of flowers are no concern to
the law. A person enjoying the landscape or having a trip in his field has certainly
used a liberty; however such acts do not produce legal effects.
On the opposite side, all occurrences carrying legal consequences may be denoted by the
expression of “legal phenomena” (or “legal events”, in the large sense) (hukuksal olgular
veya hukuksal sonuç doğuran olgular).
For example, the faulty causation of an injury gives rise in favor of the
injured party to a right of credit relating to the reparation of the prejudice; an
agreement between two persons may realize the transfer of a right; the death of a
person results in the transmission of his patrimonial rights (malvarlığı hakları) to
his heirs (mirasçılar).
Yet, within this broad concept, legal transactions (hukuki işlemler) and legal events
(hukuki olaylar) should clearly be distinguished due to the fundamental difference of their
nature.
B)
The Distinction between Legal Events and Legal Transactions
1 — Legal Events.
Definition. — Legal events are either factual situations (such as birth, death or age) or
actions (such as despoiling an object, hitting or insulting somebody) which by their
realization give rise to legal consequences, i.e. affect the creation, transmission or extinction
of rights.
Scope. — Many legal events occur independently from the will of persons who might
be less or much directly concerned by these events. We tend to say that such legal events are
constituted by “natural events” in the sense that they are fortuitous or the result of the natural
course of things.
For example, the accomplished birth of the living child results in the
beginning of legal personality (CC. Art.28 § 1). Even conception (ana rahmine
düşme) has legal consequences (CC. Art.28 § 2; Art.643). A person becomes major
(ergin / reşit) upon completion of eighteen years of age (CC. Art.11 § 1); such
event leads to the acquisition of full capacity (tam ehliyet) if the major person has
also the ability to make reasonable judgments (ayırt etme gücü / temyiz kudreti)
and is not incapacitated (kısıtlı / mahcur) (CC. Art.10). The elapse of a period of
time foreseen by a statute of limitations (zamanaşımı) with regard to a particular
type of credit will provide the debtor the faculty to abstain from performance.
Actions, which constitute legal events, may be volitional or non volitional; however,
since the legal effects they engender were not desired or intended, they remain as legal events
even when they are volitional.
Thus, a person who intentionally wounded another person has committed a
tortious act (haksız fiil) and is bound to provide compensation to the injured party;
the latter has a right of credit relating to compensation. The generator of this credit
(the tortious act) is a legal event. Although the wounding was a willful act, the
obligation to repair the prejudice was not a consequence desired by the author; the
obligation of reparation was imposed by the law.
2 — Legal Transactions
Definition. — Legal Transactions are generally defined as declarations of will
accomplished with a view to create legal consequences. Obviously, the notion of “declaration
of will” (irade beyanı) is the focal point with regard to the explanation of the concept of
juristic act. In this respect, it should be emphasized that a particular declaration of will by a
person will produce certain legal consequences only because the law foresees such a result.
Accordingly, the legal consequences attached virtually by the law to a determined declaration
of will shall arise only if that considered expression of intention is made.
Specificity. — In juristic acts the will of the author of the act is directly oriented towards
the legal consequences provided by the law. The author effectuates a juristic act because he,
in principle, perceives and desires its legal consequences. This specificity of legal
transactions distinguishes them from legal events consisting in voluntary actions. Thus,
when two persons conclude a contract of sale (satım akdi) the emergence of the reciprocal
obligations “to pay the sale price” and “to transfer the ownership of the sold good” is a
consequence accepted and desired by the parties. Juristic acts play a capital role in legal life; a
role reaching the sources of law: constitutions, statutes, statutory decrees, regulations or bylaws are all legal acts.
Unilateral Legal Transactions and Bilateral Legal Transactions. — Juristic acts
are classified as unilateral juristic acts (tek taraflı hukuki işlemler) and bileteral juristic acts
(iki taraflı hukuki işlemler) following the number of parties to which they may be attributed.
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i) A juristic act is unilateral when it is attributable to one person, i.e. when the legal
effect it aims at results from the declaration of will of only one person.
The testament (last will) (vasiyet) (CC. Art.514), the disclaim of estate
(mirasın reddi) (CC. Art.605), the recognition of the natural child (tanıma) (CC.
Art.295), the declaration of the will to establish a foundation (vakıf kurma
iradesinin açıklanması) (CC. Art.102) or the termination of a contract (akdin feshi)
(CO. Art.106 § 2) are just a few examples of unilateral juristic acts in the field of
private law. On the other hand, exception made of administrative contracts (idari
sözleşmeler), the majority of administrative acts (idari işlemler) are of unilateral
character.
ii)Bilateral legal transactions are those formed on the basis of the declarations of will
of several persons as parties. Contract constitutes the archetype of this category. Although
contract is essentially perceived as a bilateral juristic act (iki taraflı hukuki işlem), contracts
may have more than two parties.
In this respect, a partnership contract (şirket akdi) or a contract for the
partition of an estate (miras paylaşım sözleşmesi) (CC. Art.646 § 2) concluded by
more than two persons may be cited as examples. (multilateral transactions)
However, contracts are generally of bilateral character. Accordingly, the CO mainly
apprehends and regulates the contract as a bilateral juristic act. Therefore the general
provisions of the CO relating to contracts apply to contracts having more than two parties by
way of analogy (kıyasen).
It should also be emphasized that a party of a contract may well be
constituted by several persons. For example, when three persons rent together a
flat, the lessee party is formed of three persons. Such a lease contract (kira akdi)
is still a bilateral contract.
III.
A)
Classification of Contracts
Contracts Creating Obligations and other Contracts
Contracts Creating Obligations. — When the legal consequence aimed at by the
conclusion of a contract is the formation of an obligation, we speak of a contract belonging to
the category of contracts creating obligations (borç doğuran akitler).
Other Contracts. — i) In the field of the Law of Obligations: Besides the aim of
generating an obligation, contracts may follow various objectives. A contract may be
concluded in order to modify an existing obligation relation. Indeed, the place or the date of
performance of an obligation, the applicable interest rate or the quantity or value stipulated in
a contract may ulteriorly be modified by agreement between parties. A contract may
otherwise be concluded to extinguish an existing obligation. A contract may also have for
subject matter the assignment of a credit (alacağın temliki) or the assumption of an obligation
(borcun nakli). In all these cases, although the considered contracts follow objectives other
than the creation of an obligation, we still refer to contracts relating to the Law of Obligations.
ii) In other fields of Civil Law: Contracts are also found in other fields of civil law. We
may cite as examples, the contract of marriage (evlilik sözleşmesi) in the field of Family Law
(Aile Hukuku) and the agreement of inheritance (miras sözleşmesi) (CC. Art.527 ff.) in the
field of the Law of Succession (Miras Hukuku).
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B)
Types of Contracts Creating Obligations
Contracts creating obligations may be classified following diverse criteria. However, a
fundamental distinction made according to the number of parties assuming an obligation
opposes contracts creating obligations for one party and contracts creating obligations for
the two parties.
Contracts Creating Obligations for One Party (Tek Tarafa Borç Yükleyen Akitler).
— Under contracts creating obligations for one party, while one of the parties assumes an
obligation, the other party does not assume an obligation. Such contracts are also called,
somewhat improperly, since a contract is by definition a multilateral juristic act, unilateral
contracts (tek taraflı akitler). To this effect, the French Civil Code expressly provides that a
contract is “unilateral where one or more persons are bound towards one or several others,
without there being any obligation on the part of the latter. ” (Art.1103)
The archetype of contracts creating obligations for one party is the contract of
gift (contract of donation) (hibe akdi veya bağışlama sözleşmesi). The CO defines the
contract of gift as follows:
“A gift (donation) is the disposition inter vivos by which a person assigns all
or part of his property to another without corresponding counter-performance.”
In other words, under the contract of gift the donor (bağışlayan) transfers the
ownership of a good to the donee (bağışlanan) without any consideration. Donation is
not a unilateral act of the donor but a bilateral act, a contract, between the donor and the
donee. Thus the “unilateral contract” is qualified as such due to the fact that only one
party assumes an obligation; however it is the result of an agreement and therefore, it is
not a unilateral juristic act.
Contracts Creating Obligations for the Two Parties (İki Tarafa Borç Yükleyen
Akitler). — These are contracts under which both parties assume reciprocally obligations, i.e.
each party is bound to a performance towards the other. Such contracts are also referred to as
bilateral contracts (iki taraflı akitler). To this effect, the French Civil Code provides that a
contract is “bilateral where the contracting parties bind themselves mutually towards each
other” (Art.1102).
What characterizes contracts creating obligations for the two parties is the reciprocity of
engagements. For example, under the contract of sale (satım akdi), while the seller (satıcı) is
bound to deliver and transfer the ownership of sold good, the buyer (alıcı) is bound to pay the
sale price. The lease contract (kira akdi), the contract of barter (trampa akdi), the contract
of manufacture (istisna akdi) and the contract of service (hizmet akdi) are a few other
examples for this category.
§ 1 – CONCLUSION OF CONTRACT
Agreement of the Parties. — A contract is concluded when two or more persons
manifest reciprocally and concordantly their wills as to generate a legal consequence. As
already specified above, the CO regulates contract mainly as a bilateral juristic act.
Accordingly, Article 1 of the CO provides that:
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“The contract is formed when the two parties have reciprocally and
concordantly declared their assents.”1
Offer and Acceptance. — The conclusion of a contract may be preceded by a more or
less long process of negotiation and bargain. However, fundamentally and unreducibly, a
contract is formed through the acceptance of an offer.
§ 2 – VALIDITY OF CONTRACT
I.
A)
Conditions of Validity
Capacity of the Parties
Principle. — As a general principle, the validity (geçerlilik) of a juristic act is
dependent upon the ability of the author to effectuate that specific act. A person can validly
accomplish a juristic act only if the law recognizes him such a power. Consequently, the
validity of a contract is conditional upon the capacity (ehliyet) of the parties to enter into that
specific contract. The capacity of real persons (natural persons) (gerçek kişiler) is regulated
by the Turkish Civil Code (CC), and is a subject primarily studied under the Law of Persons
(Kişiler Hukuku). However, a reminder is beneficial.
1 — Distinction between Capacity to Enjoy Rights and Capacity to Exercise Rights.
Legal Capacity (Hak Ehliyeti) Legal capacity is the aptitude to hold rights and
obligations. Possession of the legal capacity amounts to being a subject of the law. Therefore
the legal capacity identifies with the concept of legal personality (hukuki kişilik). The Turkish
Civil Code provides that every human being has legal capacity (hak ehliyeti). As a
consequence, everyone has, within the limits of the law, an equal aptitude for becoming the
subject of rights and obligations (CC. Art.8).2
However, the enjoyment of rights (haklardan yararlanılması) is one thing; the exercise
of rights (hakların kullanılması) is another. For instance, a minor (küçük) may own a house
but cannot sell it by acting on his own. To this effect, following a Civil Law tradition also
observed in the Civil Codes of many other Continental European countries, the Turkish Civil
Code expressly distinguishes between legal capacity (hak ehliyeti) and capacity to act (fiil
ehliyeti).
Capacity to Act (Fiil Ehliyeti). — Capacity to act is the power to exercise civil rights.
More precisely it is the ability of a person to acquire rights and to assume obligations by his
own acts. Although every human being has the capacity to enjoy civil rights, the extent of the
capacity to act of persons may vary according to diverse factors foreseen by the law. The
Turkish Civil Code foresees that the degree of the capacity to act of different categories of
persons will differ. In this respect, basically three groups may be inferred from the
dispositions relating to the capacity to act.
2 — Categories Relating to the Capacity to Act.
a) Full Capacity (Tam Ehliyetliler). —
1
2
BK.m. 1 § 1 — Sözleşme, tarafların iradelerini karşılıklı ve birbirine uygun olarak açıklamalarıyla kurulur.
MK. m.8 — Her insanın hak ehliyeti vardır.
Buna göre bütün insanlar, hukuk düzeninin sınırları içinde, haklara ve borçlara ehil olmada eşittirler.
5
i.) Scope. — Persons having the capacity to act are capable of acquiring rights and
assuming obligations through their own acts (CC. Art.9).3 Persons possessing full capacity
may accomplish any kind of transaction. Therefore a fully capable person (tam ehliyetli) may
conclude contracts creating obligations.
ii.) Conditions: Majority, Capacity of Discernment and Not Being Restricted. — Every
major (ergin / reşit) person who has the capacity of discernment (ayırt etme gücü / temyiz
kudreti) and who is not restricted (kısıtlı olmayan) possesses the capacity to act (CC. Art.10).4
The critical elements defining this group can be highlighted as follows:
Majority (Erginlik / Rüşt). — Majority is attained upon completion of eighteen
years of age. Also, marriage confers majority.5 On the other hand, a minor who has
completed fifteen years of age may acquire majority through the decision of the court
upon his request and with the consent of his parent.6
Capacity of Discernment (Ayırt Etme Gücü / Temyiz Kudreti). — Capacity of
discernment means the ability to make reasonable judgments. According to the Civil
Code every person who is not devoid of the faculty to act reasonably due to his youthful
age or who is not deprived of such faculty as a result of mental illness, feeblemindedness, inebriety or other similar reasons has the capacity of discernment.7
Not Being Restricted (Kısıtlı Olmama). — A major person may be placed under
guardianship (vesayet) because of mental illness (akıl hastalığı), feeble-mindedness
(akıl zayıflığı), prodigality (savurganlık), alcoholism or toxicomania (alkol veya
uyuşturucu madde bağımlılığı), bad way of life (kötü yaşam tarzı), bad management
(kötü yönetim), imprisonment (özgürlüğü bağlayıcı ceza) or even at his own request
(istek üzerine) (Art.405 et seq.). Restricted (interdicted) persons may not incur
obligations by acting on their own and have to act through their guardian (vasi).
b) Full Incapacity (Tam Ehliyetsizler). — Persons who are devoid of the ability to
make reasonable judgments (capacity of discernment) do not have the capacity to act (CC.
Art.14).8 Such persons are totally incapable of exercising rights; consequently they are not
capable of entering into transactions of any kind. Transactions effectuated by these persons
are null (batıl) (CC. Art.15).9 Incapable persons can solely act through their statutory
representatives (yasal temsilci / kanuni temsilci), such as a parent (veli) or a guardian (vasi).
c) Limited Incapacity (Sınırlı Ehliyetsizler). — Principle. — Minors (küçükler) and
restricted persons (kısıtlılar) who are able to make reasonable judgments (capacity of
discernment) have limited capacity. The incapacity of such persons is the rule; their capacity
is the exception.
MK. m.9 — Fiil ehliyetine sahip olan kimse, kendi fiilleriyle hak edinebilir ve borç altına girebilir.
MK. m.10 — Ayırt etme gücüne sahip ve kısıtlı olmayan her ergin kişinin fiil ehliyeti vardır.
5
MK. m.11 — Erginlik onsekiz yaşın doldurulmasıyla başlar.
Evlenme kişiyi ergin kılar.
6
MK. m.12 — Onbeş yaşını dolduran küçük, kendi isteği ve velisinin rızasıyla mahkemece ergin kılınabilir.
7
MK. m.13 — Yaşının küçüklüğü yüzünden veya akıl hastalığı, akıl zayıflığı, sarhoşluk ya da bunlara benzer
sebeplerden biriyle akla uygun biçimde davranma yeteneğinden yoksun olmayan herkes, bu Kanuna göre ayırt
etme gücüne sahiptir.
8
MK. m.14 — Ayırt etme gücü bulunmayanların, küçüklerin ve kısıtlıların fiil ehliyeti yoktur.
9
MK. m.15 — Kanunda gösterilen ayrık durumlar saklı kalmak üzere, ayırt etme gücü bulunmayan kimsenin
fiilleri hukukî sonuç doğurmaz.
3
4
6
Consistence. — Minors and restricted persons who are capable of discernment may
assume obligations only with the consent of their statutory representatives (yasal
temsilcilerinin rızası). However, they don’t need such consent to acquire gratuitously and to
exercise strictly personal rights (CC. Art.16).10 Thus, persons with limited capacity have the
power to accomplish certain acts. They may enter into transactions by which they merely
benefit without incurring obligations. They may, for example, conclude a contract of gift
(contract of donation) as donee.
Consent of the Statutory Representative. — As stated above, persons with limited
capacity may assume obligations only with the consent of their statutory representative. The
consent of the statutory representative may be given priorly, as a permission (izin /
muvafakat), or subsequently, as an approval (onama / icazet), to the concerned transaction.
Transactions made without the consent of the statutory representative are voidable by the
person having limited capacity. If the transaction accomplished without the consent of the
statutory representative is not approved within a convenient period of time fixed by the other
party or the judge, the other party will be released (CC. Art.451 § 2).11 Such consent may be
tacit (örtülü / zımni) or explicit (açık / sarih).
B)
Form – requirements
Principle of Freedom as to Form (Şekil Serbestisi İlkesi). — As a general rule, the
conclusion of a contract is not subject to any specific form. To this effect, Article 12 § 1 of
the CO provides that the validity of a contract is not dependent upon the observation of a
particular form unless required by a special prescription of the law.12 This general rule is
referred to as the principle of freedom as to form (şekil serbestisi ilkesi). Thus a contract may
be concluded orally or even by signs or actions expressing will. On the other hand, nothing
prevents the parties from concluding a contract in a particular form even though the
concerned contract is not subject to any formal requirement by the law.
Written Form as a Means of Proof (İspat Vasıtası olarak Yazılı Şekil). — Although
the conclusion of a contract may not be subordinated to any form, the written form may be
required by the law as a condition for proving the existence of a transaction. To this effect
Article 200 of the Code of Civil Procedure (Hukuk Usulü Muhakemeleri Kanunu) provides
that legal transactions aiming at the formation, foreclosure, transfer, modification, renewal,
deferring, recognition and extinction of a right must be proved by a written instrument if the
amount or value of the same exceeds two thousand five hundred Turkish Liras (2500 TL).13 In
MK. m.16 § 1 — Ayırt etme gücüne sahip küçükler ve kısıtlılar, yasal temsilcilerinin rızası olmadıkça, kendi
işlemleriyle borç altına giremezler. Karşılıksız kazanmada ve kişiye sıkı sıkıya bağlı hakları kullanmada bu rıza
gerekli değildir.
11
MK. m.451 — Ayırt etme gücüne sahip olan vesayet altındaki kişi, vasinin açık veya örtülü izni veya sonraki
onamasıyla yükümlülük altına girebilir veya bir haktan vazgeçebilir.
Yapılan işlem diğer tarafın belirlediği veya başvurusu üzerine hâkimin belirleyeceği uygun bir süre içinde
onanmazsa, diğer taraf bununla bağlı olmaktan kurtulur.
10
BK. m.12 § 1 — Sözleşmelerin geçerliliği, kanunda aksi öngörülmedikçe, hiçbir şekle bağlı değildir.
Kanunda sözleşmeler için öngörülen şekil, kural olarak geçerlilik şeklidir. Öngörülen şekle uyulmaksızın
kurulan sözleşmeler hüküm doğurmaz.
12
HUMK. m.200 senetle ispat zorunluluğu.
1) Bir hakkın doğumu, düşürülmesi, devri, değiştirilmesi, yenilenmesi, ertelenmesi, ikrarı ve itfası
amacıyla yapılan hukuki işlemlerin, yapıldıkları zamanki miktar veya değerleri ikibinbeşyüz Türk Lirasını
geçtiği takdirde senetle ispat olunması gerekir. Bu hukuki işlemlerin miktar veya değeri ödeme veya borçtan
kurtarma gibi bir nedenle ikibinbeşyüz Türk Lirasından aşağı düşse bile senetsiz ispat olunamaz.
13
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other words, although a contract orally concluded may be valid, its existence may not be
proved before the court if relating to a transaction of a value exceeding two thousand five
hundred TL. Therefore, in practice, written form presents itself as a necessary measure to
secure credits.
Written Form as a Condition of Validity (Geçerlilik / Sıhhat Şartı olarak Yazılı Şekil).
— Despite the principle of freedom as to form the CO requires the conclusion of certain
contracts in written form (yazılı şekil). As a principle, whenever the CO subordinates the
conclusion of a contract to a specific form, the observation of the concerned form constitutes
a condition of validity (geçerlilik şartı) of the contract; this means that a contract not made in
the form required by the CO will be null (bâtıl) (CO. Art.12 § 2). In this respect, the CO
foresees two types of written form for contracts.
i.) Simple (Ordinary) Written Form (Âdi Yazılı Şekil). — Simple written form
consists in the expression of wills in a written text bearing the signatures of the persons
assuming obligations (CO. Art.13 § 1).
For example, the CO expressly provides that the validity of the contract of
surety (kefalet akdi) is subordinated to written form and to the indication of the
maximum amount for which the surety will be liable.
ii.) Official Form (Resmî Şekil). — Official form consists in the expression of wills
in a document prepared by a public officer (resmî görevli) in the manner prescribed by
the law. The document drafted in official form is called an official deed (resmî senet).
When requiring the conclusion of a specific contract in official form, the CO
does not indicate the competent public authority (resmi makam) for drafting the
concerned contract and the procedure to be followed for such operation. In this
respect, the Law on Notaryship (Noterlik Kanunu) provides that the notaries
public (noterler) are competent to draft all transactions subordinated to official
form unless another public authority is indicated by the law (Art.13 § 1).14
Therefore, in our legal system, the general competence to draft official deeds is
attributed to the notary public.
Contracts aiming at the acquisition of real rights (rights in rem) (ayni haklar) over
immovables (gayrımenkuller / taşınmazlar) constitute undoubtedly the most important
category of transactions requiring the official form. For example, the sale of immovable
property (gayrımenkul / taşınmaz satımı) requires official form. However, the competence to
draft official deeds relating to the transfer of ownership or to the establishment of real rights
over immovables is attributed to Land Registry officers (Tapu Sicil görevlileri). Therefore a
contract for the sale of an immovable (gayrımenkul satım sözleşmesi) is valid only if
concluded before the Land Registry officer. However, notaries public are authorized to draft
promise to sell contracts relating to immovable property (gayrımenkul satış vaadi
sözleşmesi).15
(2) Bu madde uyarınca senetle ispatı gereken hususlarda birinci fıkradaki düzenleme hatırlatılarak karşı
tarafın açık muvafakati hâlinde tanık dinlenebilir.
Noterlik Kanunu m.60 § 1, 2 — “Noterlerin görevleri:
[...] 2. Kanunlarda resmî olarak yapılmaları emredilen ve mercileri belirtilmemiş olan bütün hukukî işlemleri bu
kanun hükümlerine göre yapmak, ”
15
Noterlik Kanunu m.60 § 1, 3 — “Noterlerin görevleri:
[...] 3. Gayrımenkul satış vaadi sözleşmesi yapmak,”
14
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C)
Legality of the Subject Matter
Principle of Freedom of Contract (Sözleşme Serbestisi İlkesi). — Freedom of contract
is guaranteed by the Constitution of the Republic of Turkey (Art.48 § 1).16 Freedom of
contract has many aspects.
i.) Freedom to conclude or not to conclude a Contract: The principle of freedom of
contract implies, first of all, the freedom to conclude and not to conclude a contract.
Everybody benefits from a general liberty to conclude contracts. Everyone is free to
enter into a contractual relation with whoever he desires. Nobody is bound to conclude a
contract against his will. An obligation to enter into a determined contract may
exceptionally result from a special provision of the law. Such obligations are normally
foreseen for entities conducting a public service.
ii.) Freedom to determine the Content of a Contract: The parties are free to
establish the subject and terms of a contract at their discretion. In this respect, the CO
provides that the subject matter of a contract may be freely determined within the limits
of the law. The parties have the liberty to determine their mutual obligations as well as
the consequences of non-performance. This includes the freedom to depart from the
specific types of contracts regulated in the special part of the CO. Thus, the parties may
adopt an individual type of contract defined in the CO or even establish totally different
terms.
Limitation of the Freedom of Contract. — Freedom of contract is limited by the law.
The limits of the freedom of contract are generally defined in CO which provides that
contracts are valid unless they are contrary to peremptory legal rules, morals, public order or
individual rights or contain impossible subject matters. Therefore a contract not respecting
these limits will be null (batıl).
D)
Reality of Consent
Principle. — Contract is realized through an agreement of wills involving the consent
of the parties. Therefore it is logical that the validity of a contract is dependent upon the
genuineness of the assents of the parties. As to protect the liberty of persons the CO
recognizes that certain types of vices of consent (irade bozuklukları) affect the validity of a
contract.
1.
Mistake
Concept. — Mistake (hata) signifies the situation where somebody consents to a
contract because he is mistaken about one of its elements. Thus we speak of a mistake when
somebody’s declaration of will unintentionally does not accord with his state of mind. A
contracting party may have been mistaken on various elements having relevance to a contract;
however only an essential mistake will provide him the faculty to void the contract.
Essential Mistake (Esaslı Hata). — According to the CO the party who, at the moment
of conclusion of the contract, was in an essential error will not be bound by the contract.
Pursuant to the CO an error is essential, in particular, in the following situations:
i.)
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Mistake as to the nature of the transaction (Akdin mahiyetinde hata): It is the situation
where the mistaken party had the intention to conclude a contract other than the one to
Any. m.48 § 1 — Herkes, dilediği alanda çalışma ve sözleşme hürriyetlerine sahiptir.
9
which he declared his consent. (- 1) For example, a person may accept to purchase a
good by mistake, although he intended to lease it.
ii.)
Mistake as to the object of the contract (Akde konu olan şeyde hata): It is the situation
where the mistaken party had in view another thing than the one which made the object
of the contract. (- 2) For example, a person may mistakenly lease a car other than the
one he intended to lease.
iii.) Mistake as to the identity of the counter-party: It is the situation where the mistaken
party had principally another person in mind than the person with whom the contract
was concluded. (- 2)
iv.)
Mistake as to quantity: It is the situation where the mistaken party undertakes a
substantially greater prestation or accepts a substantially smaller counter-prestation than
he intended in reality. (- 3) For example, a person may by error accept to pay for one ton
of wheat instead of hundred kg.
v.)
Mistake as to the necessary state of facts of a contract: It is the situation where the
mistake relates to facts which, according to sound commercial custom, may be
considered as necessary elements of the contract. (- 4) For example, a person may buy a
desk thinking that it is a genuine antique piece of furniture although it is an ordinary
imitation.
Mistake relating to the Motives (Saik Hatası). — According to the CO a mistake
relating solely to the motives of the contract does not constitute an essential error. For
example, when somebody purchases a good, thinking that its value will later increase due to
economic developments and that he will considerably benefit by reselling it, if such an
increase in the prices does not occur we may say that he was mistaken on the motive of
entering into the contract. However, such a mistake will not be regarded as an essential
mistake within the meaning of the CO.
Consequence of a Mistake: Voidability. — In case of an essential mistake, the contract
is voidable by the mistaken party within one year from the discovery of the mistake (CO. Art.
31 § 1). However, the mistaken party may not invoke a mistake in a manner contrary to rules
of good faith. He, in particular, will be bound by the contract he indented to conclude, if the
other party declares his assent to it .
2.
Fraud
A fraud (hile) may be described as a misleading act practiced to induce a person to
conclude a contract. CO provides that the party induced to conclude a contract by the fraud of
the other party is not bound by the contract, even if his mistake is not essential. The defrauded
party is entitled to void the contract within one year from the discovery of the fraud.
3.
Duress
Duress (korkutma) is coercion exercised over an individual in order to force him to enter
into a contract. According to CO where a party is induced to conclude a contract because of
duress by the other contracting party or a third person, such contract will not be binding upon
him.17 The party who has been a victim of duress is entitled to declare the contract void within
one year from the vanishment of the fear.
II.
Types of Invalidity
BK. m.29 § 1 — Eğer iki taraftan biri diğer tarafın yahut üçüncü bir şahsın ikrahiyle bir akit yapmış olursa,
kendi hakkında lüzum ifade etmez.
17
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A) Inexistence
Lack of a Constituent Element. — In case of absence of reciprocal and concordant
declarations of will the contract will not come into existence. The inexistence (yokluk) of a
contract may be asserted by every concerned person at any time.
B) Nullity
Despite having come into existence, a contract is null (batıl) if not respecting a
condition of validity interesting public order. The causes resulting in the nullity (butlan) of a
contract may be listed as follows:
i.)
ii.)
iii.)
iv.)
Full incapacity of a party (lack of the capacity of discernment);
Contrariness of the subject matter to peremptory legal rules, morals, public order or
individual rights (illicitness of the subject matter);
Impossibility of the subject matter ;
Non-compliance with the form required by the law as a condition of validity
Just like in the case of inexistence, the nullity of a contract may be asserted by every
concerned person at any time. A contract that is null does not become valid with the elapse of
time or the rectification of the defective element. The contract must be regularly concluded
once again to be valid.
C) Voidability
Voidability (iptal edilebilirlik) is a term used to designate those situations where it is
possible on one hand to render a contract valid by correcting the defect affecting its validity
and on the other hand to invalidate the contract definitely due the defect. Thus, voidability
signifies that the protected party has a faculty to invalidate definitely the contract by canceling
(terminating) it. However, if the entitled party does not use this faculty within the period of
time foreseen by the law, the defective contract will become valid. Voidability arises in case
of a vice of consent resulting from a mistake (hata), a fraud (hile) or duress (korkutma) and as
well as in the event of gross disparity (gabin).
D) Partial Invalidity
According to CO the nullity of only certain clauses of a contract does not invalidate the
contract as a whole unless there is ground for admitting that the contract would not have been
concluded without these clauses. Partial invalidity (kısmi hükümsüzlük) is not, strictly
speaking, an independent type of invalidity. It is a term used to describe those situations
where a contract is only partly affected by a cause of invalidity and yet, the non affected parts
can be regarded as constituting an effective contract between the parties.
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