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Can we make any contract as we want? - Freedom of Contract


İstediğimiz gibi sözleşme yapabilir miyiz? Sözleşme Serbestisi

FREEDOM OF WILL PRINCIPLE


The right and authority of individuals to regulate their legal relations as they wish is called the principle of freedom of will. In the field of Law of Obligations, there are 3 sub-branches that ensure the implementation of freedom of will:

  • Freedom of Contract

  • Freedom of Form

  • Principle of Equality

A) Freedom of Contract


It is called the right and authority of individuals to regulate their contractual relationships as they wish. Freedom of contract has 4 meanings:

  1. Freedom to enter into or not to conclude any contract

  2. Freedom to choose the counterparty to the contract

  3. Making a contract in the desired type and content

  4. Freedom to revoke a signed contract

It is not an absolute rule. There are exceptions. For example, it is not possible for organizations that carry out public services, especially those in a monopoly position, to act in accordance with freedom of contract. Because they are obliged to take the public service to everyone who applies for it. For example, when you go to a pharmacy, the pharmacist does not have the right to say that I do not like your type and do not give medicine.


Content of the contract

I. Freedom of contract

TBK 26: Parties may freely determine the content of a contract within the limits stipulated in the law.


II. Absolute nullity

TBK 27: Contracts that are contrary to the mandatory provisions of the law, morality, public order and personal rights or whose subject matter is impossible are absolutely null and void. The fact that some of the provisions contained in the contract are void does not affect the validity of the others. However, if it becomes clear that the contract cannot be concluded without these provisions, the entire contract will be absolutely null and void.


B) Freedom of Form


According to the law of obligations, individuals have the right to make contracts in any way they wish. No form requirement is foreseen. The purpose of the figure here is whether it will be written, oral, official, etc. There are some exceptions to freedom of form that are enumerated in the law. Some of them are:

  • Marriage contract

  • Contracts giving rise to the obligation of transfer of immovable property (subject to official form) (exception; the lease agreement for immovables is not subject to form, the contract for the right of pre-purchase of immovables is made in ordinary written form.)

  • Inheritance contract (subject to official form)

  • Granting power of attorney to a lawyer (subject to official form)

  • Surety contract (subject to ordinary written form, that is, it must be made in writing)

  • Contract for the transfer of receivables (subject to ordinary written form, i.e. must be made in writing)


What happens if a contract that is subject to the form in the law is made without complying with that form?


Contracts that lack constituent elements are subject to the sanction of nonexistence. In Turkish law, form is not the constituent element but the element of validity. Contracts made contrary to the form are subject to the sanction of invalidity, not the sanction of nonexistence, since there is no deficiency in the constituent element. In the sanction of invalidity, it is also invalid with absolute butlan.


Form of contracts - I. General rule

TBK 12: The validity of contracts does not depend on any form, unless otherwise stipulated by law. The form prescribed in the law for contracts is, as a rule, the form of validity. Contracts concluded without complying with the prescribed form shall not be valid.


C) Principle of Equality


A contract cannot offer any party special rights. However, this is not an absolute rule. Because in contracts with social content, special provisions have been introduced for the protection of the weak party of the contract. (Such as the presence of legal provisions to protect the tenant in lease agreements and the employee in employment contracts)


For example; In A's apartment, K lives as a tenant. The start date of the lease agreement is October 1, 2021. Since the lease is for 1 year, the tenant's lease will expire on October 1, 2022. Normally, when this period expires, A will be able to file an eviction lawsuit against K to vacate the house. However, according to the legal regulation that protects the tenant, it does not matter whether a 1-year period is written in the lease agreement made on October 1, 2021. Unless the landlord is notified by the tenant that it will be terminated at least 15 days before October 1, 2022, the lease agreement is deemed renewed for 1 year under the same terms and there is nothing the landlord can do against it. In short, the landlord does not have the right to terminate the contract in terms of duration. The legislator has restricted the landlord lessor in terms of time to protect the tenant.