Freedom of contract can be briefly defined as the freedom of the parties to contract as they wish. “Everyone has the freedom to work and to conclude a contract in any field they wish. Private entrepreneurs are free to establish.” according to article 48 of the Constitution of the Republic of Turkey. On the other hand, “Parties can freely determine the content of a contract within the limits stipulated in the law” according to the article 26 of the Turkish Code of Obligations no 6098 titled Freedom of Contract. As can be seen; the freedom of contract is guaranteed by the Constitution and the Code of Obligations. (1)
Freedom of contract is a concept that should be considered together with limitations. (2) In this context; the article 13 of the Constitution which is a framework for the limitation of fundamental rights and freedoms, is as follows; “Fundamental rights and freedoms can only be limited by law without affecting their essence only depending on the reasons specified on the relevant articles of the Constitution. These limitations cannot be contrary to the word and spirit of the Constitution itself, to the requirements of the democratic social order and the secular republic and to the principle of proportionality.” Article 27 of the Turkish Code of Obligation is in line with the provision in question, it can be said that this is the most important limitation that has brought in. According to the mentioned article, “Contracts that are contrary to the mandatory rules of law, morality, public order, personal rights or whose subject matter is contrary are void. The nullity of some of the provisions of the contract does not affect the validity of other provisions. However, the entire contract will be null and void if it is clearly understood that the contract will not be executed without these provisions.” As can be seen; exception to this rule is regulated that in case of nullity and the reasons of the nullity of the contract that partial nullity sanction will be applied in this article titled “nullity” (3)
In my opinion it would be useful to discuss and explain this article according to its elements (mandatory provisions, morality, public order, violation of personal rights, impossibility of the subject and partial nullity). Therefore, let’s examine in detail what a limitation of contract is, how it works and what its elements are.
Opposition to Mandatory Provisions
Mandatory provisions are regulations that cannot be acted upon, that aim to protect public order, that cannot be changed by individuals and that must be strictly enforced. For example, article 125 of the Turkish Civil Code; “Those without mental competence cannot marry.” is a mandatory provision. Marriage of persons who do not have mental competence is null and void in actuality. Because
as stated in the article 27 of the TBK; Violation of the mandatory provision leads to nullity, unless another sanction provision is stipulated in the law as an exception. (e.g., TBK art. 28, 39/f. I). (2.)
The meaning of the concept of morality according to TDK (Turkish Language Association) (4) is in the form of; “The behavioral patterns and rules that people have to comply within a society; ethics; morals.” The definition of the concept of moral rule, which is relatively specific is as follows according to Yilmaz (5); “It is the totality of the rules that have been established in the life of a society over the ages or over time and which the majority of the members of the society are obliged to abide by because they cause the society to develop and mature. These rules, which regulate behavior such as rules of religion and law, mean the rules that a person is morally (spiritually) obliged to obey both towards his/her own personality and towards other people.” Moral rules are related to the life of society and regulate social relations like legal rules. The most important difference between moral and legal rules is that moral rules do not have the power of enforcement. However, some legal rules that have the quality of a mandatory provision essentially contain the moral rule and the main reason for the enforcement envisaged will be the moral rule in case of violation of the said imperative provision. Indeed, in the article 27 of the TBK, immorality is counted as one of the reasons for nullity.
Cases of executing a contract for the commission of crimes such as sexual conjunction for money, surrogate motherhood for money, homicide, compulsion, and injury can be given as examples for the immorality. (1)
Opposition to Public Orders
It is difficult to define the concept of public order because it is a very broad and an abstract concept. It is defined as “the order formed by the institutions and rules of a country ensuring the security of a state, the good functioning of public services, the peace in relations between individuals and compliance with the rules of law and morality” in the Law Dictionary of the Ministry of Justice (6). According to Güven (7); “Public order refers to the arrangement of the phenomena, which are constantly changing in political, economic, and social terms in a way that will be beneficial to the public in order to ensure the social order. “The contracts made to violate these rules are invalid with absolute nullity due to the violation of the mandatory provisions, since the rules of law aiming to protect the public order are in the nature of a Mandatory rule of law. (8) According to another explanation; the actions taken are deemed to be against public order and will be null and void in the event that the actions that the law has ordered to be carried out to protect the public interest are not taken at all or the provisions made for the same purpose are severely violated. (9) Finally, it is also stated that the violation of public order will result in nullity in article 27 of the TBK. An example for the said reason for a nullity can be given as a contract for the importation of a prohibited item. In fact, such a contract is subject to an enforcement of nullity on the grounds that it is contrary to public order.
Opposition to Personal Rights
Personal rights are defined as “The rights of individuals regarding their bodily integrity, honor, secrets and spiritual world.” in Yılmaz’s Law Dictionary (5) According to Dural and Öğüz (10) “… it would be hold true to define the right of personality as the right of all assets that ensure the dignity of the person in society and the free development of his personality.” Personal rights are absolute, inviolable, inalienable and can not be transferred rights protected by law even against the people themselves. In fact, the provisions that preserve personality and personality rights are regulated in the articles between 23-25 of Turkish Civil Code. Provision in article 23 of our civil code (No one can give up their rights and capacity to act even partially. No one may renounce their freedom or limit them unlawfully or unethically. It is possible to receive, vaccinate and transport biological materials of human origin upon written consent. However the person who is under the obligation to give biological substance can not be asked to fulfill their obligation; and there cannot be claimed material and moral indemnities.) is a provision that protects the personal right against attacks based on the consent of the holder of a grant.(11) The elements of the attack on personal rights are specified and the irregularity is regulated (A person whose personal rights have been attacked unlawfully may request protection from the judge against those who attack. Any attack on personal rights is unlawful unless justified by one of the reasons such as the consent of the person whose personal rights have been violated, a superior private or public interest or the use of the authority given by the law. ) in the article 24. And finally, it’s expressed that personal rights are protected through litigation (The plaintiff may ask the judge to prevent the danger of attack, to end the ongoing attack, and to determine the unlawfulness of the attack whose effects continue even if it has ended. Along with these the plaintiff may also request the notification or publication of the correction or decision to third parties. The plaintiff’s right to demand material and moral indemnity claims and the earnings obtained due to unlawful attack to be given to them in accordance with the provisions of working without power of attorney is reserved. The non-pecuniary damage claim cannot be transferred unless accepted by the other party; it doesn’t pass to them unless it is claimed by the inheritor. The plaintiff may file a lawsuit in the court of their own domicile or the domicile of the defendant for the protection of their personality rights.) in the article 25. (12) The legislator attached great importance to personal rights as it can be understood from the provisions in question, therefore they felt the need to specifically state that the breach of the provisions protect personal rights would also invalidate the contract. (11) As a matter of fact, according to TBK article 27 contracts contrary to personal rights are null and void. At this point it should be noted that there is a debate about which decision should be made in the possible violation of the subject because TMK art. 23 does not foresee any sanctions. According to the predominant view a contract becomes null and void in accordance with the art. 27 of the TBK if a person has made a contract that severely restricts their freedoms despite the prohibition in art. 23 of the TMK. For example, handcuffing contracts which significantly limit the economic freedom of the individual are null and void according to article 27 of TBK.
It is stated that contracts whose subject is impossible will also be null and void in addition to the violation of mandatory provisions, morality, public order and personal rights. The impossibility that appears after the conclusion of the contracts is the next impossibility and is regulated in other provisions of the law. It must exist at the time the contract is concluded although the impossibility mentioned in this article is called initial impossibility. (8) Impossibility must be objective as well as continuous. Being objective means that the impossibility is available to everyone since the performance cannot be performed by the debtor or any other third party. Subjective impossibility is the fact that the performance is not performed by the debtor even though it is objectively possible. (11) For example, there is an objective impossibility in the sale of a property that was destroyed during the formation of the contract and the contract of sale concluded is null and void. It is a subjective impossibility for a male tailor to undertake to sew wedding dresses even though he has no experience; in this case the contract is valid and the debtor bears the consequences of non-performance.
Terms such as nullity, invalidity and voidness are broad terms that are used interchangeably. The phenomenon of invalidity can occur in a variety of ways. Yet the types of invalidity will not be discussed comprehensively but the concepts of nullity and partial nullity which are directly related to the subject of the study will be mentioned in this study.
Legal transactions must have validity conditions such as not being contrary to the imperative provisions, morality, public order, personal rights; the subject to not be impossible and the parties performing the transaction to have juridical capacity. Transactions lacking the aforementioned conditions are invalid with nullity.
The nullity of a legal act means that the said transaction is stillborn without making any judgement despite the presence of its constituent elements in contrast to the non-existence type situation. A legal action that is invalid by nullity is invalid from the beginning and has no consequences in the legal world. (13) In the event that only some of the provisions of the contract are impossible to perform such as being against the mandatory rules of law, morality, public order, personal rights or if it is impossible to perform, not nullity is mentioned but a partial nullity. Art 27/f.II regulating partial invalidity is in the form of “The invalidity of some of the provisions of the contract does not affect the validity of the others. However, the entire contract will be null and void if it is clearly understood that the contract will not be concluded without these provisions.” First of all, the contract must be divisible; that is, after removing the invalid part, the remaining parts should constitute a meaningful whole for partial nullity to be in question. On the other hand, the hypothetical will of the parties must be appropriate in order for the valid part of the contract to be sustained. This point is very important because the entire contract will be null and void if it’s not possible to determine the compatibility of the joint hypothetical will.
Freedom of contract is the ability of the parties to make the contract they want within the framework stipulated by the laws. This freedom is guaranteed by the Constitution and related laws. Just as no freedom is unlimited the freedom of contract is not limited either. The most important provision determining the limits of the freedom in question regulated in article 48 of the Constitution and article 26 of the TBK; is article 27 of TBK. Contracts that are contrary to mandatory provisions, morality, public order, personal rights or whose subject is impossible are strictly null and void according to the article titled as “Nullity.” Nullity is a type of invalidity, and it means that the legal act does not have a legal consequence because it does not meet the validity conditions despite its constituent elements; so, to speak, it is stillborn. Partial nullity is regulated with an exception in the second paragraph of the same article. Accordingly the invalidity of some of the provisions of the contract does not affect the validity of the others unless it is clearly understood that the contract can not be concluded without the invalid provisions. In other words, the entire contract will be null and void if it is obvious that the contract cannot be concluded without invalid provisions.
- Bilir, Prof.Dr. Faruk. Kişisel Verilerin Korunması Kişinin Kendisinin Korunmasıdır. [röp.] Sezen Yüce. basım yeri bilinmiyor : trtakademi, Ocak 2021.
- Article 1. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 1981.
- Chart of signatures and ratifications of Treaty 108. Council Of Europe. [Çevrimiçi] 24 11 2022. [Alıntı Tarihi: 24 11 2022.] https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=108.
- Convention 108 and Protocols. Council Of Europe. [Çevrimiçi] https://rm.coe.int/convention-108-convention-for-the-protection-of-individuals-with-regar/16808b36f1.
- Article 37. General Data Protection Regulation. 2016.
- Kişisel Verilerin Korunması Kurumu. [Çevrimiçi] https://www.kvkk.gov.tr/Icerik/4183/Kisisel-Verilerin-Korunmasi-Alaninda-Uluslararasi-ve-Ulusal-Duzenlemeler.
- Article 4 General Data Protection Regulation . 2016.
- Article 9. General Data Protection Regulation. 2016.
- Kaya, Cemil. Avrupa Birliği Veri Koruma Direktifi Ekseninde Hassas (Kişisel) Veriler ve İşlenmesi. İstanbul Üniversitesi Hukuk Fakültesi Mecmuası. 2011. Cilt 69, 1-2, s. 322.
Akdeniz University Faculty of Law 4th Year Student
Legal Intern İrem Nur ORBAY