PT - TR contract law

1. SUMMARIZE OF PORTUGUESE AND
TURKISH CONTRACT LAW
ISMAIL TALHA YAVUZYEGIT

2. Overview to Turkish Contract Law
 The contract is a legal procedure which consists of mutual and
interdependent declarations of the parties to produce a certain legal
outcome.
 The persons who are party to the contract are called the creditor and the
debtor.
 As a rule, a contract has at least one creditor and at least one debtor.
 However, more than one person may take part in a contract as a creditor and
a debtor.

3.  In the Constitution of the Republic of Turkey there is not such field like
contract law.
 However, the law of contracts is usually seen within the Law of Obligations.
 In accordance with the Code of Obligations, the parties do not have to comply
with any type of contract regulated by law.
 The first code was adopted from Swiss Law of Obligations.
 The Code of Obligations, which was emended many times over time, started
to fail to respond to the current conditions in terms of both the language and
the institutions it contains.

4.  Turkish Republic Constitution states in Article 48 that everyone have the
freedom to work and contract .
 Constitutional situations regarding the right to work that is described in the
law of employment are valid here.
 In the same way, the right to collective contact is a constitutionally
recognized right.
 In Article 38/7 of the Constitution; “No one can be detained from his freedom
because he has not fulfilled the contract. “it says.
 In order to draw up a contract, the parties' mutual wills must be matched.

5.  The most fundamental principle in the law of contracts is the principle of
freedom of contract.
 The principle of freedom of contract is restricted in terms of the criteria for
the subject selection of the law.
 Pursuant to the Code of Obligations, the parties cannot conclude contracts
with issues that are contrary to the moral level of the society.
 The principle of freedom of contract covers the freedom to do or not to do a
contract.

6.  Similarly, people have the freedom to choose the other party.
 As a rule, the parties shall conclude the contract entered into in accordance
with the freedom of contract.
 However, there are conditions of shape brought by the law itself.
 The parties need to determine exactly what they want by contract.
 The legal nature of the contract to be prepared should be laid down and its
possible consequences should be foreseeable.

7.  First, a draft contract should be prepared. This draft should be clear and
understandable.
 It should be investigated whether it covers all the matters that should be
included in a contract.
 Convention is also included in the contract and that the parties are fully
accepted.
 The principles governing the Turkish Contract Law include; Freedom of
contracting, freedom of not to do contract, protection of the contract terms,
harmonization of the will of the party.

8. Overview to Portuguese Contract Law
 The most important legislative source of Portuguese contract law is the Civil
Code of 1966.
 This code was modelled upon the German Bürgerche Gesetzbuch(BGB).
 Some commercial contracts are regulated in the Commercial Code of 1888.
 And the labour contract is now regulated in the Labour Code of 2004.
 Significant rules of general contract law can also be found in non-codified
statutes.

9.  The most basic principle of Portuguese contract law is that of freedom of
contract.
 Freedom to enter into a contract is implied throughout its provisions.
 When making a contract, and later on, when performing that contract, the
parties must comply with the requirements of good faith.
 Freedom of form is the default rule that is applicable to the making of a
contract.
 Certain types of contract such as the insurance contract are required to be
drawn up in writing.

10.  Any interested party may invoke the nullity of a contract at any time.
 Conversely, a contract may only be avoided by the party in whose interest the
voidability is legally prescribed.
 Both the avoidance and confirmation of a contract are retroactive.
 Once a contract is avoided or declared null and void, the parties must
concurrently make restitution of whatever each one has supplied to the other
under the contract, or an equivalent monetary value.
 Partial invalidity will not entail that the whole contract is rendered invalid.

11.  A contract said to be null and void if the contracted obligation is impossible.
 A contract that lacks the required form will be null and void.
 A simulated transaction is also null and void.
 When the parties concluded a simulated contract, but meant to agree to a
different set of terms, their true agreement will prevail, notwithstanding the
nullity of simulated contract.
 A contract whose object is contrary to public policy or morality (boni mores)
will be null and void.

12.  A contract term may be express or implied.
 Silence may only be interpreted to amount to an indirect demonstration of
intention.
 Unless otherwise agreed by the parties, performance of a contractual
obligation may be carried out by the debtor or by a third party.
 A contractual obligation must be performed at the time or within the period
of time fixed in the contract.

13. Sources:
 1) http://aofisletme.biz/calisma-alani/e-
kitap/1.SINIF/BAHAR_DONEMI/HUK110U%20-
%20BOR%C3%87LAR%20HUKUKU.pdf
 2) https://alonot.com/zihni-kayit-nedir-2/
 3) http://www.cetinkaya.av.tr/1-Hizmetlerimiz-sozlesme-hukuku-7
 4) https://eksisozluk.com/iltihaki-sozlesmeler--2538914