Introduction
The Turkish Law of Obligations (Türk Borçlar Kanunu – TBK) is the foundation of private law in Turkey, setting the rules for how contracts are formed, how obligations are fulfilled, and what happens when they are breached. For foreigners engaging in contracts, investments, or even day-to-day transactions in Turkey, understanding the basic framework of the TBK is essential.
The first 230 articles of the Turkish Code of Obligations form the General Provisions (Genel Hükümler). These rules apply to all obligations, regardless of their source—contracts, torts, unjust enrichment, or other legal grounds. They establish the fundamental principles of Turkish contract law, offering guidance on performance, default, termination, and liability.
1. Sources of Obligations
The TBK begins by defining where obligations come from (Art. 1–2):
- Contracts (Sözleşmeler): When two parties agree on a performance.
- Torts (Haksız Fiiller): When someone unlawfully causes harm.
- Unjust Enrichment (Sebepsiz Zenginleşme): When a party gains at the expense of another without legal cause.
This classification ensures that every obligation in Turkey has a legal source and framework.
2. Formation of Contracts
The code dedicates significant attention to how contracts are formed:
- Offer (İcap) and Acceptance (Kabul): A contract is concluded when one party’s offer is accepted by the other (Art. 1–10).
- Freedom of Contract (Sözleşme Serbestisi): Parties are free to determine the content of their contract, provided it does not violate mandatory law, public order, or morality (Art. 26–27).
- Form Requirements: Contracts may be oral unless a specific form is required by law (e.g., real estate sales must be notarized).
3. Validity of Contracts
For a contract to be valid, certain conditions must be satisfied:
- Consent (İrade): Parties must declare their will freely and without defects such as mistake, fraud, or duress (Arts. 30–39).
- Capacity (Ehliyet): Parties must have the legal capacity to act (Art. 9).
- Lawful and Possible Performance (Edim): The subject of the contract must be possible, lawful, and determinable (Art. 27).
Contracts that lack these conditions may be void or voidable.
4. Interpretation and Good Faith
- Interpretation (Yorum – Art. 19–21): Courts interpret contracts in line with the parties’ true intentions and good faith.
- Good Faith (Dürüstlük Kuralı – Art. 2): This is a cornerstone of the TBK. Parties must exercise their rights and fulfill obligations honestly and fairly. Abuse of rights is prohibited.
5. Performance of Obligations (İfa)
Articles 83–132 regulate performance:
- Who Performs: The debtor usually performs, but a third party may also render performance (Art. 83).
- To Whom: Performance must be made to the creditor or an authorized person (Art. 86).
- Place and Time: If not agreed, payment of money is made at the creditor’s domicile; other performances at the debtor’s domicile (Art. 89–90).
- Partial Performance: Creditors are not obliged to accept partial performance unless otherwise agreed (Art. 84).
- Proof of Performance: Debtors may request a receipt or return of the debt instrument (Art. 104).
6. Default and Impossibility
- Debtor’s Default (Borçlunun Temerrüdü – Arts. 117–126): If the debtor fails to perform on time, the creditor may demand performance with damages or rescind the contract.
- Creditor’s Default (Alacaklının Temerrüdü – Arts. 106–110): If the creditor unjustifiably refuses performance, the debtor may be released from liability.
- Impossibility (İfa İmkânsızlığı – Art. 136): If performance becomes impossible due to no fault of the debtor, the obligation ends.
7. Consequences of Breach
When an obligation is breached, the TBK offers remedies:
- Specific Performance (İfa Talebi): The creditor may demand performance.
- Termination (Sözleşmeden Dönme): For substantial breaches, the creditor may withdraw.
- Compensation (Tazminat): Damages may be claimed for losses suffered.
8. Multiplicity of Debtors and Creditors
The TBK also regulates relationships where there are multiple parties:
- Joint Liability (Müşterek Borçluluk – Arts. 162–169): Each debtor is responsible for their share.
- Solidary Liability (Müteselsil Borçluluk – Arts. 162–169): Creditors may demand full performance from any debtor.
- Plurality of Creditors (Alacaklı Çoğulluğu – Arts. 162–170): When multiple creditors exist, the rules determine whether they hold rights jointly or separately.
9. Prescription (Zamanaşımı)
Articles 146–161 set out limitation periods:
- General Limitation Period: 10 years.
- Special Periods: 5 years for rent, salary, interest, and similar claims.
- Effect: Once limitation expires, the debtor may refuse payment, but if voluntarily paid, it cannot be reclaimed.
10. Termination and Rescission
Contracts may be terminated or rescinded in specific cases (Arts. 117–126, 136, 138):
- Unilateral Rescission: Allowed where explicitly permitted or in cases of default.
- Hardship (Aşırı İfa Güçlüğü – Art. 138): If unforeseen events make performance excessively burdensome, a party may request contract adaptation or rescission.
Conclusion
The first 230 articles of the Turkish Code of Obligations form a coherent and flexible framework regulating obligations in Turkey. They cover how contracts are formed, performed, and terminated, as well as the consequences of breach. For foreigners engaging in Turkish legal and commercial life, knowing these principles helps navigate daily transactions, business contracts, and disputes with confidence
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