BA 300 – Business Law
(Course Notes)
Contractual Obligations
INTRODUCTION:
THE CONCEPT OF CONTRACT1
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.”
Determinant Elements. — The core elements of the above given definition deserve a
closer look:
Agreement of Wills. — Resulting from an agreement (anlaşma), contract differs
fundamentally from the unilateral act (tek taraflı işlem). As a product of the agreement
of wills, a contract is always attributable to at least two parties.
Legal Obligations. — Contract is characterized by its legally binding force. The
parties of a contract are conscious that they are legally bound and that therefore they
will expose themselves to enforcement procedures in case of failure to perform their
obligations.
Hence, contract differs fundamentally from agreements of pure courtesy or civility.
Indeed, social life comprises many agreements which do not aim at the creation of
legally enforceable obligations or the generation of other legal consequences. Such
agreements are based on rules of courtesy and good manner, not the law.
For instance, when two persons mutually agree to meet somewhere for
accomplishing a leisure activity, like having a dinner together at a restaurant or like
going to the cinema, such an agreement aiming at a social – and not legal – relation
does not constitute a contract. If one of the parties fails to honor his promise, the other
party cannot sue him.
Agreements which solely rely upon the honor of the parties and which do not create
legally binding obligations are sometimes referred to as “gentlemen’s agreement”.
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
1
The present course notes have been prepared to a large extent on the basis of the sources listed in the
bibliography.
2
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, juristic acts (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 Juristic Acts
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.
3
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 — Juristic Acts
Definition. — Juristic acts 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 juristic acts
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 by-laws are all legal acts.
Unilateral Juristic Acts and Multilateral Juristic Acts. — Juristic acts are classified as
unilateral juristic acts (tek taraflı hukuki işlemler) and multilateral juristic acts (çok taraflı
hukuki işlemler) following the number of parties to which they may be attributed.
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) Multilateral juristic acts 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.
However, contracts are generally of bilateral character. Accordingly, the CO mainly
apprehends and regulates the contract as a bilateral juristic act. Therefore the general
4
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).
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
5
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:
“The contract is formed when the two parties have reciprocally and
concordantly declared their assents.”2
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.
I.
A)
The Offer
Conceptual Analysis
Definition. — An offer (icap) is a declaration of intention by which a person (the
offeror) (icapçı / mucip) expresses his willingness to enter into a determined contract.
Characteristics of the Offer. — The offer is by definition a “definite” (kesin) proposal
for the conclusion of a contract. A declaration of will aiming at an agreement can be
considered as an offer only if: i) it is made with the intention of creating a legal relation; ii) it
must be definite an certain; and if iii) it is communicated to the addressee (muhatap).
Distinction between Offer and Invitation to offer. — A declaration made merely to
trigger negotiations for the conclusion of a contract is not an offer. Such a declaration of
intention is qualified as an “invitation to treat” (icaba davet). An invitation to treat does not
express an intention to be bound by the corresponding declaration of the addressee. It is in
fact a declaration made to provoke proposals which can be considered as offers.
2
BK.m. 1 § 1 — Sözleşme, tarafların iradelerini karşılıklı ve birbirine uygun olarak açıklamalarıyla kurulur.
6
For example, a person merely declaring that he is willing to purchase “ten
tons of wheat” cannot be considered as having effectuated an offer. Such a
declaration made to receive determined proposals which specify the type and price
of the wheat to be sold is an invitation to treat. Also when a person asks a
bookseller for a specific book of an author he does not make an offer. It is clear
that such a person does not desire the conclusion of a contract instantaneously
with the reply of the bookseller.
Specific Cases foreseen by the Code. — It might sometimes be difficult to determine
whether a statement of will constitutes an invitation to treat or an offer. However, in this
respect the CO comprises provisions relating to some specific cases. In this regard:
-
However according to Article 8 § 2 of the CO: “The exhibition of goods by
indicating the price is deemed, as a rule, to be an offer.”3
B)
Effect of the Offer
1 — Binding Effect.
Principle. — The offer constitutes a binding (bağlayıcı) declaration of will for the
offeror. This means that the addressee may provoke the conclusion of the contract by a
concordant declaration of will.
“Non-Binding” Offer (İltizamsız İcap / Bağlayıcı Olmayan İcap). — Article 8 § 1
of the CO bears in its title, somewhat paradoxically, the expression of “non-binding offers”.
However, the content of the provision refers, in fact, to declarations of intention which,
strictly speaking, do not carry the characteristics of an offer. According to Article 8 § 1:
“The author of the offer is not bound if he has made express reservations in
this regard or if his intention not to be bound results either from circumstances or
from the special nature of the dealing.”4
For example, when within a negotiation process a party submits to the other
party a draft text of contract merely to learn about his comments and expectations
such a submittal does not constitute a binding offer.
2 — Duration of the Binding Effect
Principle. — The offeror cannot stay bound by its offer indefinitely, in the sense that it
is necessary to limit the binding effect of the offer as to a period of time. The problem of the
duration of the binding effect of the offer is apprehended by the CO following two main
hypotheses:
a)
Offer for a fixed time (Kabul için müddet tayin ederek icap). — The offeror
may expressly fix a time within which his offer is to remain open. Where the offeror
prescribes a specific time limit for acceptance, the offer is conditional upon acceptance within
that time. Therefore, if the acceptance is not communicated to the offeror within the fixed
Fiyatını göstererek mal sergilenmesi veya tarife, fiyat listesi ya da benzerlerinin gönderilmesi, aksi açıkça ve
kolaylıkla anlaşılmadıkça öneri sayılır.
3
BK. m.8 § 1 — Öneren, önerisi ile bağlı olmama hakkının saklı olduğunu açıkça belirtirse veya işin özelliğinden ya da
durumun gereğinden bağlanma niyetinde olmadığı anlaşılırsa, önerisi kendisini bağlamaz.
4
7
period of time the offeror will not be bound by its offer. To this effect Article 3 of the CO
reads as follows:
“Any person who proposes to another the conclusion of a contract by fixing a
period of time for acceptance is bound by his offer until the expiration of that
period of time. He will be released if the acceptance does not reach him before
the expiration of the period of time.”5
b)
No fixed time (Kabul için müddet tayin olunmaksızın icap). — The problem of
the duration of the binding effect of an offer which does not specify a period of time for
acceptance is handled by the CO following two different situations.
i) Between Presents (Hazırlar Arasında). — According to Article 4 § 1 of the
CO: “When an offer made without fixing a period of time for acceptance to a
present person is not accepted immediately the author of the offer is released.”6
Hence, if an offer not specifying a period of time made to a present person is
not “immediately” accepted by the latter, the offeror will not be bound by his
offer.
Offer and Acceptance by Telephone. — Article 4 § 2 of the CO provides
that contracts concluded by telephone, computer are deemed to be made between
presents if the parties or their representatives have been personally in
communication7.
ii) Between Absents (hazır olmayanlar arasında). — Article 5 § 1 of the CO
provides that when the offer has been made without fixing a period of time to a
non present person, the author of the offer will remain bound by the offer until
the moment he may expect the arrival of a timely and regularly sent response.8
Concretely this means that the offeror shall be bound with his offer for a period
of time which includes the time necessary for the attaining of the offer; the
time necessary for the addressee to think about the offer and the time that a
regularly sent response will take to reach the offeror.
C)
Withdrawal of the Offer
Problem. — Although the offeror is bound by his offer, in order to preclude the heavy
consequences that may result from an absolute application of this principle, the CO
BK. m.3 —Kabul için süre belirleyerek bir sözleşme yapılmasını öneren, bu sürenin sona ermesine kadar
önerisiyle bağlıdır.
Kabul bu süre içinde kendisine ulaşmazsa; öneren, önerisiyle bağlılıktan kurtulur.
5
BK. m.7 § 3 — Kabul için bir müddet tayin olunmaksızın hazır olan bir şahsa karşı vaki olan icap derhal kabul
olunmadığı takdirde, anı yapan bağlı kalmaz.
7
BK m. 4 : Kabul için süre belirlenmeksizin hazır olan bir kişiye yapılan öneri hemen kabul edilmezse; öneren, önerisiyle
6
bağlılıktan kurtulur.
Telefon, bilgisayar gibi iletişim sağlayabilen araçlarla doğrudan iletişim sırasında yapılan öneri, hazır olanlar arasında
yapılmış sayılır.
8
BK. m.5 § 1 — Kabul için süre belirlenmeksizin hazır olmayan bir kişiye yapılan öneri, zamanında ve usulüne uygun
olarak gönderilmiş bir yanıtın ulaşmasının beklenebileceği ana kadar, önereni bağlar.
Öneren, önerisini zamanında ulaşmış sayabilir.
Zamanında gönderilen kabul, önerene geç ulaşır ve öneren onunla bağlı olmak istemezse, durumu hemen kabul edene
bildirmek zorundadır.
8
recognizes the possibility for the offeror to withdraw (geri alma) his offer under certain
conditions.
Regime of Withdrawal. — According to Article 10 § 1 of the CO the offer is considered
as void:
i)
ii)
If the withdrawal reaches the addressee before the offer or at the same time
with it; or
If, although having arrived subsequently, the withdrawal is communicated to
the addressee before he gets informed of the offer.9
It follows from the above that it is possible for the offeror to render his offer ineffective
by a notice of withdrawal which will reach the addressee either before or at the same time
with the offer. Moreover, even in the event that the withdrawal reaches the addressee after the
offer, the offer will still be withdrawn if the addressee comes to know about the withdrawal
before the offer.
II.
A)
The Acceptance
Conceptual Analysis
Definition. — An acceptance (kabul) is a declaration of will by which a person (the
offeree) expresses his assent to the terms of an offer made to him.
Characteristics of the Acceptance. — The main features of acceptance may be
highlighted as follows:
i.) The acceptance is a declaration of will made by the offeree. The making of an
offer does not mean that anyone may accept. Only the offeree is entitled to provoke the
conclusion of a contract by accepting the offer. A declaration aiming at the conclusion
of the contract by a third party will be ineffective in this respect.
ii.) The acceptance is by definition a definite (kesin) expression of assent to the
conclusion of the contract proposed by the offeror. The intention of the offeree to accept
must be expressed without leaving doubt as to the fact of acceptance, or as to the
coincidence of the terms of acceptance with those of the offer.
iii.) The acceptance is a declaration of will that is communicated to the offeror. A
non-communicated expression of assent will not result in the conclusion of the contract.
Therefore, if for instance the offeree prepares a letter of acceptance but does not send it
to the offeror we can’t speak of an acceptance.
Effect of Acceptance: Conclusion of the Contract. — The acceptance provokes the
conclusion of the contract. However, as explained above, a declaration of acceptance which
does not reach the offeror within the period of time fixed by the offeror will not have such
effect.
BK. m.9 — Geri alma açıklaması, diğer tarafa öneriden önce veya aynı anda ulaşmış ya da daha sonra ulaşmakla
birlikte diğer tarafça öneriden önce öğrenilmiş olursa, öneri yapılmamış sayılır.
Bu kural, kabulün geri alınmasında da uygulanır.
9
.
9
Withdrawal of the Acceptance. — Just as for the offer, it is possible to withdraw an
acceptance. In this respect, the principles governing the withdrawal of the offer apply to the
withdrawal of the acceptance (CO. Art. 10).
B)
Modality of Acceptance
Lack of a Specific Form Requirement. — The declaration of acceptance is not subject
to any specific form unless required by the law or indicated by the offeror. Therefore, the
declaration of acceptance may be effectuated orally, in writing, or even by conduct.
Possibility of an Implicit Acceptance (Zımni Kabul). — Normally, and generally, the
acceptance is made through an express (sarih) declaration. However, an implicit acceptance
(zımni kabul) is also possible (CO. Art. 1 § 2). To this effect, conclusive conduct such as the
usage of a sent good or the sending of the ordered good will constitute an acceptance.
The Problem of the Silence of the Offeree. — Notwithstanding the possibility of an
implicit acceptance, silence does not constitute a declaration of intention; therefore the offeree
cannot, in principle, be regarded as having accepted an offer by remaining silent. Contrary to
the saying “silence gives consent”, the principle is that silence does not amount to acceptance.
§ 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).10
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
10
MK. m.8 — Her insanın hak ehliyeti vardır.
Buna göre bütün insanlar, hukuk düzeninin sınırları içinde, haklara ve borçlara ehil olmada eşittirler.
10
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). —
i.) Scope. — Persons having the capacity to act are capable of acquiring rights and
assuming obligations through their own acts (CC. Art.9).11 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).12 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.13 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.14
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.15
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).
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.
13
MK. m.11 — Erginlik onsekiz yaşın doldurulmasıyla başlar.
Evlenme kişiyi ergin kılar.
14
MK. m.12 — Onbeş yaşını dolduran küçük, kendi isteği ve velisinin rızasıyla mahkemece ergin kılınabilir.
15
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.
11
12
11
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).16 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).17 Incapable persons can solely act through their statutory
representatives (yasal temsilci / kanuni temsilci), such as a parent (veli) or a guardian (vasi).
c) Limited Capacity (Sınırlı Ehliyetliler). — 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.
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).18 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).19 Such consent may be
tacit (örtülü / zımni) or explicit (açık / sarih).
B)
Form – requirements
MK. m.14 — Ayırt etme gücü bulunmayanların, küçüklerin ve kısıtlıların fiil ehliyeti yoktur.
MK. m.15 — Kanunda gösterilen ayrık durumlar saklı kalmak üzere, ayırt etme gücü bulunmayan kimsenin
fiilleri hukukî sonuç doğurmaz.
16
17
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.
19
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.
18
12
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.20 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).21 In
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).
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.
20
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.
(2) Bu madde uyarınca senetle ispatı gereken hususlarda birinci fıkradaki düzenleme hatırlatılarak karşı
tarafın açık muvafakati hâlinde tanık dinlenebilir.
21
13
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).22
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).23
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).24 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
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, ”
23
Noterlik Kanunu m.60 § 1, 3 — “Noterlerin görevleri:
[...] 3. Gayrımenkul satış vaadi sözleşmesi yapmak,”
24
Any. m.48 § 1 — Herkes, dilediği alanda çalışma ve sözleşme hürriyetlerine sahiptir.
22
14
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.)
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
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.
15
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.25 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
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
BK. m.29 § 1 — Eğer iki taraftan biri diğer tarafın yahut üçüncü bir şahsın ikrahiyle bir akit yapmış olursa,
kendi hakkında lüzum ifade etmez.
25
16
(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.
*
*
*
17