What Is Contractual Freedom?
1. What is Contractual Freedom?
Contractual freedom can be defined as the freedom of individuals to enter into valid contracts of their choosing. Contractual freedom is a general principle in Turkish law. This is evident in both Article 26 of the Turkish Code of Obligations, which states, “The parties may freely determine the content of a contract within the limits prescribed by law,” and Article 48 of the Constitution, which states, “Everyone has the freedom to work and enter into contracts in any field they choose.” When we look at the rationale behind the Constitution, we see that freedom of contract can only be limited by the public interest.
2. What are the forms of freedom of contract?
2.1. Freedom to enter into or not enter into a contract:
As a rule, no one is obliged to enter into a contractual relationship against their will. No one can be compelled to make an offer to enter into a contract, nor are they compelled to accept an offer made to them.
2.2. Freedom to Terminate a Contract:
Persons who have entered into a contract with each other have the freedom to terminate the contract in its entirety or to terminate a part of the contract.
2.3. Freedom to Determine the Content of the Contract:
The parties to the contract have the freedom to determine the content of the contract as they wish.
2.4. Freedom to Determine the Type of Contract:
In areas such as Family Law and Property Law, the number and types of contracts are predetermined. In other words, the principle of limited number applies in these areas. However, in the field of Contract Law, the principle of freedom of type prevails, and individuals can determine the type of contract as they wish.
3. Restrictions on Contract Freedom
The parties are free to enter into any contract they wish, but this freedom is not unlimited and may be restricted in certain cases. As stated in Article 27 of the Turkish Law of Obligations: “Contracts that are contrary to the mandatory provisions of the law, morality, public order, or personal rights, or whose subject matter is impossible, are absolutely void. The invalidity of some of the provisions of the contract does not affect the validity of the others. However, if it is clear that the contract would not have been entered into without these provisions, the entire contract is absolutely void.“ The concept of ”absolute invalidity” in the wording of the law means that the contract entered into between the parties has no legal meaning and is legally invalid.