A contract is a legally binding agreement (a legal transaction) that is usually concluded between two parties. Therefore, it is generally referred to as a bilateral legal transaction. For instance, in a sale contract, there are two parties: a buyer and a seller. In a lease contract, there are also two parties: a lessor and a lessee. However, a contract may be concluded between more than two parties—e.g., a partnership contract with multiple partners. Another example is an inheritance partition agreement made between more than two heirs. These kinds of contracts are referred to as multilateral legal transactions or, more precisely, as multilateral contracts.
1.1. General1
A contract is a legally binding agreement (a legal transaction)2 that is usually concluded between two parties. Therefore, it is generally referred to as a bilateral legal transaction. For instance, in a sale contract, there are two parties: a buyer and a seller. In a lease contract, there are also two parties: a lessor and a lessee. However, a contract may be concluded between more than two parties—e.g., a partnership contract with multiple partners. Another example is an inheritance partition agreement made between more than two heirs. These kinds of contracts are referred to as multilateral legal transactions or, more precisely, as multilateral contracts.
The Turkish Code of Obligations regulates contracts as bilateral legal transactions. That is why the general provisions relating to contracts in the Turkish Code of Obligations are applicable to multilateral contracts only by analogy. As the Turkish Code of Obligations governs contracts as bilateral legal transactions, this book will also treat them as such.
The elements that are required for the formation of a contract are offer and acceptance. In addition, the parties must have the intention to establish a legal relationship.3 This intention may be express or implied. An agreement cannot be binding as a contract if it was made without any intention to create legal relations.
The offer is the first declaration of will (intention)4 in time,5 whereas acceptance is the second. In order for a contract to be concluded, the offer and the acceptance must be mutual and consistent (TCO art. 1 par. 1). The offer and the acceptance may be express or implied (TCO art. 1 par. 2).
1.2. The Offer
An offer is a unilateral declaration of will (intention) expressed by the offeror. This declaration contains the offeror’s proposal to enter into a contract with the offeree. An offer may be made by a person who intends to undertake an obligation, that is to say, who intends to become a debtor. Furthermore, an offer may also be made by a person who intends to be entitled to a right, in other words, who intends to become a creditor.6 In certain contracts, both parties undertake an obligation. Such contracts are referred to as bilateral contracts (e.g., a sale contract, a lease contract).7 Any of the parties may also make an offer on the conclusion of these types of contracts.
An offer must be addressed to a prospective contracting party. In this sense, it may be addressed to determined or undetermined persons (e.g., the general public).8 For instance, when a seller S makes an offer to sell a chattel for a determined price to a prospective buyer B, this offer is addressed to a determined person. On the other hand, an example of an offer being addressed to undetermined persons is when a shopkeeper displays a chattel indicating its price in the shop window. Indeed, according to TCO art. 8 par. 2, displaying goods with an indication of their price is considered to be an offer, unless the contrary is understood readily and clearly.
By the offer, the offeror expresses his willingness to enter into a contract on a specific set of terms on the mere acceptance of the offeree. Consequently, the offer, as a rule, must contain the objectively and subjectively necessary elements of the contract so that the offeree can form the contract with his mere acceptance.9 In order for an offer to be valid, there are no specific form requirements. However, in certain cases, the contract to be concluded may require a specific form due to the law itself or due to the parties’ agreement. In such cases, the offer must be made in compliance with this form requirement. Otherwise, the offer is invalid, and an invalid offer does not provide the offeree with the right to conclude the contract by accepting it. For example, a sale contract relating to real estate must be made before a land registry officer. Thus, if the owner of a field intends to sell it and erects a sign on the field indicating that it is to be sold and also indicates the price, then this is not deemed to be an offer.
As mentioned above, according to TCO art. 8 par. 2, displaying goods with an indication of their price, sending a price list, a tariff, etc. are considered to be offers unless the contrary is understood readily and clearly. However, merely sending unsolicited goods does not constitute an offer. In addition, the recipient does not have an obligation to keep or to return the goods (TCO art. 7).
1.3. Binding Effect of the Offer
The offeror is bound by the offer.10 This means that the offeree’s mere acceptance will result in the formation (conclusion) of the contract. In addition, the offeror, as a rule, is not entitled to revoke the offer and, thus, may not preclude the formation of the contract. The offeree (addressee) may reject the offer. Furthermore, he may make a counter-offer. In both cases, the binding effect of the original offer is terminated.
If the offeror dies or loses the capacity to act, which is necessary in order to enter into a contract, then the binding effect of the offer must be analysed according to two separate possibilities:11 (1) if the person or the personal skills of the offeror are important for the offeree, then the offer is terminated. For example, an offer made by a well-known surgeon to a patient regarding vital surgery is terminated by the offeror’s death or his subsequent incapacity to act; (2) in cases where the person or personal skills of the offeror are not important for the offeree, the binding effect of the offer nevertheless stands. For instance, if a seller makes an offer to sell a chattel to a buyer, then the death or subsequent incapacity of the seller does not affect the offer’s binding effect. Consequently, where the offeror dies, the offer will bind his heirs. Similarly, if the offeror loses the capacity to act, the binding effect of the offer remains nevertheless. Another factor that may terminate the binding effect of an offer is the lapse of time, which is analysed in the paragraphs below.
1.3.1. Offer with Time Limit for Acceptance
If an offeror sets a time limit for acceptance, then the offeror will be bound by the offer until the fixed time expires. Where the addressee wants to accept the offer, his acceptance should reach the offeror before the set time expires (TCO art. 3).
1.3.2. Offer Without Time Limit for Acceptance
Where the offeror does not set a time limit for acceptance, it will be useful to consider two possibilities separately.
1.3.2.1. Among Persons Present
In cases where an offer is made without a time limit in the presence of the offeree, if the offeree wants to accept it, he must declare this forthwith. Otherwise, the offeror will no longer be bound (TCO art. 4 par. 1). It is worth noting that if the contracting parties communicate directly by telephone, electronically, etc., the offer is deemed to be made between persons present (TCO art. 4 par. 2). If, at the stage of the contract negotiations, both the contracting parties’ agents are present or one party and the other party’s agent are present, then the offer is nevertheless deemed to be made between persons present.
1.3.2.2. Among Persons Not Present
Where an offer is made without a time limit in the absence of an offeree, the offeror will remain bound for a reasonable time. That is to say, the offeror will be bound until such time as he might expect a reply, which is sent properly and in due time to reach him (TCO art. 5 par. 1).
A reasonable time is determined according to what a reasonable person would consider sufficient time to accept the offer.12 It means that the offeree will need time for the offer to reach him, to think about the offer and to send the acceptance. Therefore, the expiration time varies according to the specific circumstances. For instance, the offeree in a contract for the sale of a car needs a longer period of time in comparison to the offeree in a simple book sale contract.
In certain cases, the offeror sends the offer properly but the offer is late in reaching the offeree. If the offeror does not know of this delay, then he may presume that the offer reached the offeree in due time (TCO art. 5 par. 2). Moreover, although the offeree sends the acceptance in due course and time, it may reach the offeror after a reasonable period of time has expired. In this case, where the offeror does not want to be bound by the offer any longer, he must give notice immediately to the offeree of his intent not to be bound (TCO art. 5 par. 3). Otherwise, the contract will be formed.
1.4. Acceptance
Acceptance is a unilateral declaration of will (intention)13 by the offeree and must be addressed to the offeror. For example, a seller S proposes to sell a chattel for a determined price to a prospective buyer B. Where this offer is accepted by B and this acceptance is addressed to S, the contract may be concluded. However, if the offer was accepted by a person other than the offeree (addressee), the contract may not be concluded. This is because, according to TCO art. 1 par. 1, the parties’ declarations of will (intention) must be mutual. In addition, according to TCO art. 1 par. 1, acceptance must be in compliance with the offer. Otherwise, the contract will not be formed. For instance, despite the fact that a seller wants to sell a car for TL 10,000, a buyer may not wish to pay this amount and may propose to pay TL 8000 instead. In this case, the contract will also not be concluded.
There are no specific form requirements regarding the validity of an acceptance. However, if the contract to be concluded requires a form by virtue of law or of the parties’ agreement, then the validity of the acceptance is subject to compliance with these form requirements. If the acceptance is non-compliant with the form requirements, then the contract is nevertheless concluded but is void.14
If the offeree dies or loses the capacity to act after sending the acceptance but before the acceptance reaches the offeror, this precludes the formation of the contract in cases where the offeree’s person or his personal skills are important for the offeror.
Acceptance can be either express or implied (TCO art. 1 par. 2). When an offeree states his will clearly and explicitly to the offeror, the acceptance is deemed to be express. However, where the offeree does not state his will directly but demonstrates this will by any acts indicating assent, the acceptance is deemed to be implied. For instance, where a shopper selects an item in a supermarket and hands it to the cashier, such conduct demonstrates that he accepts the supermarket owner’s offer at the price stated on the item. As mentioned above, TCO art. 8 par. 2 states that the display of goods with an indication of their price is, as a rule, considered to be an offer.
Even silence may constitute an implied acceptance. In certain cases, the offeror does not have to receive an express acceptance if the law, the special nature of the transactions or the circumstances do not require it. In such a case, if the offeree does not reject the offer in a reasonable time, then the contract is considered to be concluded (TCO art. 6). For instance, TCO art. 503 does not require an express acceptance for the conclusion of an agency contract. Indeed, pursuant to said article, an agency contract is deemed to be concluded when an agent receives an offer with respect to the services he carries out in an official capacity or on a professional basis or he has publicly announced that he will accept offers relating to these services, unless the agent immediately rejects this offer.
1.5. Invitation to Offer (Invitation to Treat)15
Where the offeror, in his offer, declares that he reserves the right not to be bound by the offer or where such reservation arises from the nature or the circumstances of the transaction, there is only an invitation to make an offer (invitation to treat).16 Therefore, mere acceptance of the invitation to offer by the addressee does not result in the formation of the contract. Accordingly, where the addressee intends to enter into a contract, he should make an offer.
The most common example of the difference between the offer and the invitation to offer is in ascending price auctions. For example, a seller wishes to sell certain goods by such an auction. If the seller declares that the subject matter of the auction is to be sold to the highest bidder, then the seller’s declaration is deemed to be an offer and the highest bid is deemed to be an acceptance. However, if the seller does not intend to make a sale contract but merely wishes to collect certain proposals with regard to a probable sale contract and declares this intention, then this declaration is deemed to be an invitation to offer. Consequently, the participants’ bids are deemed to be an offer (TCO art. 275 par. 1). These explanations are also applicable to reverse auctions (procurement auctions)—i.e., a type of auction in which the price of the goods is decreased with each bid.17
Advertisements in newspapers, on TV or on the Internet18 may not be considered to be an offer, even if they contain the price of the goods to be sold or the service to be rendered. On the contrary, such advertisements must be considered as an invitation to offer. Accordingly, the purchaser’s conduct, such as clicking on an advertisement on the Internet, is deemed to be an offer. In such a case, the counter-party’s acceptance may be express or implied. For example, accepting online payment by credit card is deemed to be an implied acceptance. However, in cases where a person is able to download a program online, the advertising of the program on the Internet is deemed to be an offer and the customer clicking on the advertisement is deemed to be an acceptance.19
Even though a vending machine displays goods and indicates their price, the conduct of the seller who operates the vending machine, in the view of the author, may only be deemed as an invitation to offer, rather than an offer. Consequently, when a customer puts the necessary money for the item that he wishes to buy in the machine’s slot, then his act is deemed to be an offer and the machine’s delivery of the goods is deemed to be an acceptance.20
Tenders are also considered to be an invitation to offer. Indeed, where a person invites others to submit tenders regarding a particular project, a sale contract or a lease contract, as a rule, this invitation is simply an invitation to offer. The offers are made by the persons who submit the tenders. If the person who invited them to submit tenders accepts one of them, then the contract is concluded.
1.6. Intention to Create a Contract
As a general principle, a person who makes or accepts an offer must have the intention to be legally bound. If a person makes a declaration of will21 without having the intention to be legally bound, there is either a reservatio mentalis (mental reservation) or a declaration that is not serious.
In the case of reservatio mentalis, a person declares that he intends to make a contract but, in reality, he does not have such an intention. In this case, if the declaring party’s real intention is hidden from the other party, then the contract is concluded according to the receiving party’s understanding.22 The declaring party is not entitled to assert that the contract is not concluded.23 As an example, in a sale auction, a bidder does not intend to buy the goods to be sold. However, he participates in the auction and makes an offer by submitting the highest bid. The auctioneer, being unaware of the real intention of the bidder, accepts this offer. In this case, the contract is concluded and the bidder is not entitled to assert that his real intention was, for example, to increase the price of the goods but not to buy the goods.
In the case of a frivolous declaration, there is a declaration apparently made as a joke, on stage, or for teaching purposes. The declaring party’s real intention is not to create a contract. In this instance, as opposed to the above-mentioned case, the declaration of will has no legal effect. However, pursuant to the ‘trust theory’ (théorie de la confiance, Vertrauenstheorie), if the addressee does not know of and, as a reasonable person, should not know that this declaration is frivolous, then the contract is concluded according to his understanding.24 In such a case, the declaring party (for example, the joking party) is entitled to rescind (avoid) the contract according to the provisions relating to mistake in the declaration of will (intention).25
1.7. Content of the Agreement
In order to form a contract, the parties must agree on all of the necessary elements of the contract. The necessary elements of a contract are divided into two categories: (1) objectively essential elements and (2) subjectively essential elements.
Objectively essential elements (essentialia negotii) constitute the minimum contents of a contract in order for it to be valid and legally binding. Such elements form the core of the contract by themselves (per se), and thus, they are indispensable (conditio sine qua non) for the conclusion of the contract. In other words, they must be determined in order to individualise the contract.26 As a general rule, where the parties do not agree on the objectively necessary elements, the contract will not be concluded. For instance, in a sale contract, a description of the goods and the price are the objectively necessary elements. If the parties do not agree on these elements, the contract will not be concluded.27 At this point, it should be kept in mind that in a sale contract, the price of the goods does not have to be determined. It is sufficient for this price to be determinable. Indeed, according to TCO art. 233, where the buyer has placed a definite order without indicating the price, the goods are deemed to have been sold at the average market price at the time and place of performance. Moreover, the objectively essential elements of the contract may be determinable. In other words, the parties may agree as to how these elements will be determined in the future.
Subjectively essential elements are subsidiary elements of the contract. They are not objectively indispensable for the formation of the contract, but they may be necessary for one or both of the parties in order to form the contract. In other words, they do not form the core of the contract by themselves (per se).28 However, they are added to the core of the contract by virtue of the intentions of the parties or of one of the parties. For instance, a suspensive condition (condition precedent)29 or a resolutive condition (condition subsequent)30 may constitute a subjectively essential element for all contracting parties or for only one of them. If the parties do not agree on such a subsidiary element, then the contract will not come into existence.
Furthermore, there are also secondary elements of a contract, which neither form its core nor are a part of it. In other words, they are not objectively or subjectively indispensable for the formation of the contract. For instance, in a sale contract, the time of performance and the place of delivery of the goods are accepted as secondary elements. According to TCO art. 2 par. 1, if the parties have agreed on the essential elements of the contract, then the contract is deemed to be concluded, even if they have not negotiated the secondary elements at all.31 It is also possible that the parties may negotiate the secondary elements before the formation of the contract and decide that they will be determined at a later time. In such a case, the contract is also deemed to be concluded.32 Actually, TCO art. 2 par. 1 does not state this possibility; it only regulates situations where the parties have not negotiated the secondary elements at all. However, it is appropriate to accept that the scope of the provision may also apply to these situations.
Where the parties negotiate the secondary elements of the contract at the stage of contract negotiations but do not come to an agreement, the contract cannot be concluded. This is because a secondary element is deemed to have become a subjectively necessary element of the contract due to the wishes of one or both parties.33
1.8. Revocation of Offer and Revocation of Acceptance
If contract negotiations take place between persons present, then the offeror is not entitled to revoke his offer. This is because once the offer is made between persons present, it is known by the offeree.
If the contract negotiations take place between persons not present, the following rules are applied: (1) if the offeror intends to revoke the offer, he must make a revocation statement. This revocation statement should reach the offeree prior to the offer. In this case, the offer is deemed not to have been made (TCO art. 10 par. 1); (2) however, if the offeror’s revocation statement reaches the offeree at the same time as or after the offer, then in order for the offeror to be able to revoke the offer, the offeree should have knowledge of the revocation statement before he has knowledge of the offer (TCO art. 10 par. 1). The above-mentioned rules are also applicable to the revocation of acceptance (TCO art. 10 par. 2).
1.9. Coming into Effect of the Contract
Where contract negotiations take place among persons present, the conclusion of the contract and its coming into effect occur at the same time.34 In other words, the contract is concluded and comes into effect at the time the offeree declares acceptance.
If contract negotiations take place between persons who are not in each other’s presence, then the conclusion of the contract and its coming into effect occur at different times. The contract is concluded when the acceptance reaches the offeror (cf. TCO art. 5 par. 1). However, the contract comes into effect when the acceptance is sent (TCO art. 11 par. 1).35
Where an express acceptance is not necessary, the contract is concluded when the reasonable time limit for the rejection of the offer expires or at the time the act that constitutes implied acceptance occurs.36 In this case, the contract comes into effect at the time the offer reaches the offeree (TCO art. 11 par. 2).
1.10. Pre-contractual Duties
Persons commencing negotiations for a contract must act in accordance with the principles of good faith (TCC art. 2). During negotiations, each party must provide the other with any information that may affect their decisions regarding the conclusion of the contract.37 In addition, they must avoid deceptive conduct. If one of the parties realises that the other is mistaken, he must warn the mistaken party. Moreover, the negotiating parties must take precautionary measures in order to protect the assets and personal rights of each other.38 This duty to protect the other also arises from the principles of good faith. For instance, if the floors are wet in a restaurant, the owner must warn the customers of this fact. Another example is that in a supermarket, the items on the shelves must be properly stacked so as to avoid harming customers.
If a negotiating party breaches these kinds of pre-contractual duties and is at fault (culpa in contrahendo, fault in contracting) and the other party suffers damage as a result, he must compensate the other party for that damage.39
References
Antalya OG (2012) Borçlar hukuku genel hükümler, vol 1. Legal, İstanbul
Ansay T, Wallace D (Eds.) (2002) Introduction to Turkish Law. Turan, Ankara
Aybay A (2011) Borçlar hukuku dersleri genel bölüm. Filiz, İstanbul
Becker H (1941) Kommentar zum Schweizerischen Zivilgesetzbuch, Volume VI, Obligationenrecht, 1. Abteilung: Allgemeine Bestimmungen, Art. 1-183. Stämpfli, Bern
Berger B (2012) Allgemeines Schuldrecht. Stämpfli, Bern
Engel P (1997) Traité des obligations en droit Suisse. Stämpfli, Bern
Eren F (2015) Borçlar hukuku genel hükümler. Yetkin, Ankara
Erten A (2009) Türk ve Alman hukukunda mesafeli sözleşmeler. Banka ve ticaret hukuku araştırma enstitüsü, Ankara
Feyzioğlu FN (1976) Borçlar hukuku genel hükümler, Volume 1. Fakülteler, İstanbul
Gauch P, Schluep WR, Schmid J (2008) Schweizerisches Obligationenrecht, Allgemeiner Teil, vol 1. Schulthess, Zürich
Honsell H, Vogt NP, Wiegand W (Eds.) (2003) Basler Kommentar zum Schweizerischen Privatrecht, Obligationenrecht 1: Art. 1-529 OR. Helbing Lichtenhahn, Basel
İnal E (2005) E-ticaret hukukunda gelişmeler ve internette sözleşmelerin kurulması. Vedat, İstanbul
Kılıçoğlu AM (2013) Borçlar hukuku genel hükümler. Turhan, İstanbul
Kocayusufpaşaoğlu N (2014) Borçlar hukuku genel bölüm, vol 1 (Kocayusufpaşaoğlu/Hatemi/Serozan/Arpacı). Filiz, İstanbul
Nomer HN (2015) Borçlar hukuku genel hükümler. Beta, İstanbul
Oğuzman K, Öz T (2015) Borçlar hukuku genel hükümler, vol 1. Vedat, İstanbul
Oser H, Schönenberger W (1929) Kommentar zum Schweizerischen Zivilgesetzbuch, Volume V: Das Obligationenrecht, Erster Halbband: Art. 1-183. Schulthess, Zürich
Özsunay E (1983) Borçlar hukuku, vol I. Filiz, İstanbul
Reisoğlu S (2014) Türk borçlar hukuku genel hükümler. Beta, İstanbul
Schwenzer I (2009) Schweizerisches Obligationenrecht, Allgemeiner Teil. Schulthess, Bern
Tekinay SS, Akman S, Burcuoğlu H, Altop A (1993) Tekinay borçlar hukuku genel hükümler. Filiz, İstanbul
Tercier P (2004) Le droit des obligations. Schulthess, Zurich
Tercier P, Pichonnaz P, Develioğlu HM (2016) Borçlar hukuku genel hükümler. On iki levha, İstanbul
Thévenoz L, Werro F (éd) (2012) Commentaire romand code des obligations 1: art. 1-529 CO. Helbing Lichtenhahn, Bâle
von Tuhr A, Peter H (1979) Allgemeiner Teil des Schweizerischen Obligationenrecht, Volume 1. Schulthess, Zürich
Esener T (2000) Turkish business law Vol. 1. Boğaziçi University Library, İstanbul
1 Antalya (2012), pp. 155–198; Aybay (2011), pp. 25–32; Becker (1941), art. 1–10; Berger (2012), pp. 207–221; Engel (1997), pp. 184–209; Eren (2015), pp. 227–263; Feyzioğlu (1976), pp. 59–101; Gauch et al. (2008), pp. 53–90; Honsell et al. (2003), art. 1–10; Kılıçoğlu (2013), pp. 52–75; Kocayusufpaşaoğlu (2014), pp. 165–213; Nomer (2015), pp. 36–48; Oser and Schönenberger (1929), Vorbemerkungen zum ersten Abschnitt (Art. 1–40), art. 1–10; Oğuzman and Öz (2015), pp. 49–79; Özsunay (1983), pp. 61–70; Reisoğlu (2014), pp. 62–70; Schwenzer (2009), pp. 182–210; Tekinay et al. (1993), pp. 81–99; Tercier (2004), pp. 112–129; Tercier et al. (2016), pp. 147–205; Thévenoz and Werro (2012), art. 1–10, and von Tuhr and Peter (1979), pp. 181–193.
2 A juridical act, (acte juridique, Rechtsgeschäft).
3
It is obvious that the parties must have the necessary capacity to act (exercise des droits civils, Handlungsfähigkeit) required to enter into a contract. For further explanations see Esener (2000), pp. 48–52; Ansay and Wallace (2002), pp. 84–87.
4
Déclaration de volonté, Willenserklärung.
5
Gauch et al. (2008), p. 69; Eren (2015), p. 244.
6
von Tuhr and Peter (1979), §24, II, p. 182; Eren (2015), pp. 243–244; Feyzioğlu (1976), p. 69; Reisoğlu (2014), p. 64.
7
Oğuzman and Öz (2015), p. 45; Eren (2015), p. 210; Reisoğlu (2014), p. 52; Thévenoz and Werro (2012), art. 1, N. 65; Tercier (2004), p. 59.
8
Reisoğlu (2014), p. 65; Eren (2015), p. 244.
9
For the objectively and subjectively essential elements of the contract, see Sect. 1.7.
10
Eren (2015), p. 250; Oğuzman and Öz (2015), p. 57; Tekinay et al. (1993), p. 86; Feyzioğlu (1976), p. 71; Thévenoz and Werro (2012), art. 1, N. 84; Engel (1997), p. 194; Gauch et al. (2008), p. 73.
11
von Tuhr and Peter (1979), § 24, III, p. 187; Reisoğlu (2014), pp. 67–68; Eren (2015), p. 260; Oğuzman and Öz (2015), p. 64.
12
Honsell et al. (2003), art. 5, N. 3; Gauch et al. (2008), p. 75; Eren (2015), p. 253; Reisoğlu (2014), p. 67; Tekinay et al. (1993), p. 89; Nomer (2015), pp. 46–47.
13
Déclaration de volonté, Willenserklärung.
14
See Chap. 3 .
15
Invitatio ad offerendum.
16
Tercier (2004), p. 120; Gauch et al. (2008), p. 69; von Tuhr and Peter (1979), § 24, II, p. 183; Tekinay et al. (1993), pp. 84–85; Eren (2015), pp. 246–247; Reisoğlu (2014), p. 65; Tercier et al. (2016), p. 190; Kocayusufpaşaoğlu (2014), p. 182.
17
For instance, a company intends to purchase certain goods or services and the price will be determined by the lowest bid. Thus, prospective sellers or providers underbid each other.
18
For contracts that are concluded on the Internet see İnal (2005), Erten (2009).
19
Oğuzman and Öz (2015), p. 54; Kocayusufpaşaoğlu (2014), p. 188.
20
See Kocayusufpaşaoğlu (2014), p. 181.
21
Déclaration de volonté, Willenserklärung.
22
Engel (1997), p. 223; Thévenoz and Werro (2012), art. 18, N. 76; Oğuzman and Öz (2015), pp. 90–91.
23
See BGB §116.
24
See BGB §118.
25
Oğuzman and Öz (2015), p. 91; Eren (2015), p. 348, See Sect. 11.1.2 .
26
von Tuhr and Peter (1979), § 20, VIII, 1, p. 155; Becker (1941), art. 2, N. 4; Gauch et al. (2008), p. 62; Tercier (2004), pp. 113–114; Reisoğlu (2014), p. 63; Eren (2015), p. 234; Oğuzman and Öz (2015), p. 72; Feyzioğlu (1976), pp. 65–66; Kocayusufpaşaoğlu (2014), pp. 174–175; Nomer (2015), p. 45; Tercier et al. (2016), p. 179.
27
von Tuhr and Peter (1979), § 20, VIII, 1, p. 155; Becker (1941), art. 2, N. 5; Oğuzman and Öz (2015), p. 72.
28
Tercier (2004), p. 114; Gauch et al. (2008), pp. 64–65; Eren (2015), pp. 235–237; Oğuzman and Öz (2015), p. 73; Kocayusufpaşaoğlu (2014), pp. 175–176; Nomer (2015), p. 45; Tercier et al. (2016), p. 179.
29
See Sect. 29.2.
30
See Sect. 29.3.
31
Oğuzman and Öz (2015), p. 73.
32
Oğuzman and Öz (2015), p. 73.
33
Tekinay et al. (1993), pp. 75–76; Oğuzman and Öz (2015), p. 73.
34
Thévenoz and Werro (2012), art. 10, N. 1; Engel (1997), p. 208; Eren (2015), p. 262; Oğuzman and Öz (2015), pp. 73–74; Feyzioğlu (1976), p. 94.
35
von Tuhr and Peter (1979), § 24, VI, p. 191.
36
Oğuzman and Öz (2015), p. 75.
37
von Tuhr and Peter (1979), § 24, VIII, p. 192; Gauch et al. (2008), p. 202.
38
Oğuzman and Öz (2015), pp. 77–78; Tekinay et al. (1993), p. 976.
39
See Sect. 22.6.