Contract Law

Unless the law provides otherwise, the validity of a contract does not depend on any particular form; an oral contract is also valid (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 12 (Official text, opens in a new tab)). Where the law prescribes a form, a contract concluded without observing that form has no legal effect; for example, the sale of immovable property must be made in official form (TBK art. 237 (Official text, opens in a new tab)). The difficulty often lies in proof: as a rule, legal transactions exceeding a certain amount must be proved by a written instrument (Code of Civil Procedure (Hukuk Muhakemeleri Kanunu – HMK, Law No. 6100) art. 200 (Official text, opens in a new tab)). This amount is updated every year by the revaluation rate. Please refer to the official text for the current position.

As a rule, the debtor of a due obligation is placed in default by the creditor's notice; where the date of performance was agreed jointly, the passing of that date is sufficient (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 117 (Official text, opens in a new tab)). In contracts creating reciprocal obligations, the debtor may be given a reasonable period for performance (TBK art. 123 (Official text, opens in a new tab)). If performance is not made within that period, the creditor may claim performance and damages for delay, or, by declaring immediately that it waives these, may claim compensation for its loss or withdraw from the contract (TBK art. 125 (Official text, opens in a new tab)). Between merchants, formal notices and notices of termination and rescission are given through a notary, by registered letter, by telegram or by KEP (Turkish Commercial Code (Türk Ticaret Kanunu – TTK, Law No. 6102) art. 18 (Official text, opens in a new tab)).

The buyer must examine the goods received as soon as this is possible in the ordinary course of business and must notify the seller of any defect within a reasonable time (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 223 (Official text, opens in a new tab)). If no notice is given, the goods are deemed accepted together with any defects that could have been detected by an ordinary examination; if a latent defect comes to light later, it must be notified immediately. Between merchants, an apparent defect must be notified within two days; for a defect that is not apparent, the goods must be examined within eight days and the defect notified within that period (Turkish Commercial Code (Türk Ticaret Kanunu – TTK, Law No. 6102) art. 23 (Official text, opens in a new tab)). Unless the seller has assumed liability for a longer period, claims arising from defects become time-barred two years after delivery (TBK art. 231 (Official text, opens in a new tab)). Please refer to the official text for the current position.

Unless the law provides otherwise, every claim is subject to a ten-year limitation period (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 146 (Official text, opens in a new tab)). Periodic payments such as rent and interest, and certain claims arising from mandate contracts and contracts for work, become time-barred after five years (TBK art. 147 (Official text, opens in a new tab)). These periods cannot be altered by contract (TBK art. 148 (Official text, opens in a new tab)). As a rule, the limitation period begins to run when the claim falls due. Please refer to the official text for the current position.

The parties may freely determine the amount of the penalty; however, the judge reduces a penalty clause considered excessive of the judge's own motion (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 182 (Official text, opens in a new tab)). The agreed penalty must be paid even if the creditor has suffered no loss at all (TBK art. 180 (Official text, opens in a new tab)). A debtor who is a merchant, however, cannot ask the court to reduce the penalty on the ground that it is excessive (Turkish Commercial Code (Türk Ticaret Kanunu – TTK, Law No. 6102) art. 22 (Official text, opens in a new tab)).

An extraordinary event that was not foreseen, and could not have been expected to be foreseen, when the contract was concluded may upset the balance to the debtor's detriment to an extent contrary to the principle of good faith. In that case the debtor may ask the judge to adapt the contract to the new circumstances or, if this is not possible, to withdraw from the contract (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 138 (Official text, opens in a new tab)). This requires that the situation was not caused by the debtor and that the debtor has not yet performed or has performed while reserving its rights. This rule also applies to obligations in foreign currency; in continuing contracts, the right of termination is, as a rule, exercised instead of withdrawal.

Clauses prepared unilaterally in advance by one party for use in many contracts are standard terms and conditions (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 20 (Official text, opens in a new tab)). Such terms to the detriment of the other party are deemed not to have been written if the other party was not expressly informed of their existence, was not given the opportunity to learn their content and did not accept them (TBK art. 21 (Official text, opens in a new tab)). Terms foreign to the nature of the contract are also deemed not to have been written. Provisions that worsen the other party's position contrary to the principle of good faith may not be included (TBK art. 25 (Official text, opens in a new tab)).

A suretyship must be made in writing and must state the maximum amount for which the surety will be liable and the date of the suretyship (Turkish Code of Obligations (Türk Borçlar Kanunu – TBK, Law No. 6098) art. 583 (Official text, opens in a new tab)). The surety must write this amount, the date and, if a joint and several surety, that capacity in the contract in their own handwriting. As a rule, a married person needs the written consent of their spouse to become a surety; certain suretyships relating to commercial enterprises and companies are exempt from this requirement (TBK art. 584 (Official text, opens in a new tab)). A suretyship made without meeting these requirements is not valid.

Only merchants or public legal entities may conclude a jurisdiction agreement among themselves (Code of Civil Procedure (Hukuk Muhakemeleri Kanunu – HMK, Law No. 6100) art. 17 (Official text, opens in a new tab)). The agreement must be in writing, the legal relationship from which the dispute arises must be specified or identifiable, and the competent court must be named (HMK art. 18 (Official text, opens in a new tab)). Unless the parties agree otherwise, an action may be brought only before the court designated in the agreement. A jurisdiction agreement cannot be made where exclusive jurisdiction applies or on matters the parties cannot freely dispose of.

A consumer may withdraw from a distance contract within fourteen days without giving reasons and without paying a contractual penalty (Consumer Protection Act (Tüketicinin Korunması Hakkında Kanun – TKHK, Law No. 6502) art. 48 (Official text, opens in a new tab)). It is sufficient for the notice to be sent to the seller within this period. If the consumer has not been duly informed of the right of withdrawal, the consumer is not bound by the fourteen-day period; in that case the right expires one year after the end of the withdrawal period. Contracts outside the scope and the details of the right of withdrawal are set out in a regulation. Please refer to the official text for the current position.