The principle of freedom of contract is a concept arising from the autonomy of individuals’ will. In general, it can be defined as the right of individuals to make a valid contract as they wish with their free will. The principle of freedom of contract, which is adopted as a fundamental principle in modern legal systems, is also accepted in Turkish law. In fact, Article 26 of the Code of Obligations states that the parties may regulate the content of a contract in any way they wish, subject to the limits stipulated by law. In addition, the principle of freedom of contract is one of the fundamental rights and freedoms protected by the Constitution.
What are the manifestations of the principle of freedom of contract?
The occurrence of the principle of freedom of contract in concrete cases generally occurs in four different ways. The first of these is the freedom to contract or not to contract. As a rule, no one can be forced to enter into a contract. The second is the freedom to terminate the contract. The parties have the right to completely or partially terminate the contract they have made. The third is the freedom to determine the content of the contract. The last freedom is the freedom to determine the form of the contract. Without prejudice to the exceptions in the law, the validity of contracts does not depend on any form.
What are the cases where the freedom of contract may be restricted?
The cases where the principle of freedom of contract may be restricted are regulated under Article 27 of the TCO. These can be listed as follows:
- Violation of the mandatory provisions of the law,
- Violation of morality, public order and personal rights,
- Impossibility of the subject matter.
The existence of one or more of these issues results in the nullity, i.e. invalidity, of the whole or, as the case may be, certain articles of the contract concluded between the parties.