What is freedom of contract?
Freedom of contract can be defined as the freedom of individuals to make any contract they wish valid. The general principle in Turkish law is the principle of freedom of contract. This is because both the provision in Article 26 of the Turkish Code of Obligations, which states that “The parties may freely determine the content of the contract within the limits prescribed by law,” and the provision in Article 48 of the Constitution, which states that “Everyone has the freedom to work and enter into contracts in any field they choose,” demonstrate the principle of freedom of contract. Looking at the rationale behind the Constitution, we see that freedom of contract can only be limited by public interest.
What are the forms in which freedom of contract manifests itself?
2.1. Freedom to Contract and Freedom to Refrain from Contracting:
As a rule, no one can be forced into a contractual relationship against their will. No one can be forced to make an offer to enter into a contract, nor are they obliged to accept an offer made to them.
2.2. Freedom to Terminate a Contract:
Persons who have signed a contract between themselves have the right to terminate the contract in its entirety or to terminate part of the contract.
2.3. Freedom to Determine the Content of a Contract:
The parties to a contract have the freedom to determine the content of the contract as they wish.
2.4. Freedom to Determine the Type of Contract:
The number and types of contracts are determined in areas such as Family Law and Property Law. In other words, the principle of limited number applies in these areas. However, the principle of freedom of type applies in the field of Contract Law, and individuals may determine the type of contract as they wish.
Restrictions on Contractual Freedom
The parties have the freedom to enter into any contract they wish, but this freedom is not unlimited and may be restricted in certain circumstances. This is because Article 27 of the Turkish Code of Obligations states: “Contracts that are contrary to the law, morality, public order, or personal rights, or that are impossible to enforce, are absolutely void. The invalidity of certain provisions of the contract does not affect the validity of others. However, if it is clear that the contract cannot be concluded without these provisions, the entire contract is absolutely invalid.“ This statement shows the limits of contractual freedom. The concept of ”determinacy” in the law means that the contract made between the parties is meaningless and legally invalid.