ABSTRACT
Tying contracts are such contracts with which a person delimitates his own economic freedom in an unacceptable manner and becomes dependent on the other party thereof. In our article, German law doctrine where the most academic studies have been conducted in this respect, is specifically embraced and besides, relevant decisions of German, Swiss and Turkish supreme courts and the sanctions applied to tying contracts within the scope of Turkish Code of Obligations and Swiss Code of Obligations, the source of our legislation, are scrutinized as well. Additionally, the factors conducing toward a contract which is acknowledged as a tying contract are analyzed and ultimately different approaches in doctrine pertaining to the legal results of tying contracts are canvassed hereunder.
I. INTRODUCTLON
Each executed contract more or less delimitates the freedom of a person. It is also possible to delimitate the economic activity freedom of a party by executing a contract. Despite the fact that delimitation of economic freedom may be considered unlawful at first sight, mere delimitation of economic freedom does not directly render the contract unlawful or immoral. Yet living in social life without engaging in a legal transaction or making a contract and accordingly managing an economic entity without delimitating the economic freedom is not within the bounds of possibility for a person. In this article, we will analyze the issue of delimitation of economic freedom of a person shifting to an unlawful or immoral form, by the way of executing tying contracts. The delimitation of the economic freedom of a person in an unlawful and immoral manner means the usurpation of freedom of such person1. Accordingly, the unlawful and immoral delimitation of the economic freedom of a person will result in emanation of the state of tying and, the contracts resulting tying in the economic freedom of a person will be named as tying contracts.
It is stated in Article 27 of Turkish Code of Obligations numbered 6098 (“TCO”) that the contracts executed in breach of imperative provisions of TCO and in contrariety against morality, public order and personal rights are null and void2. Accordingly, it is out of possibility for a person to delimitate his economic freedom, forming a part of his personal rights, in an unlawful and immoral manner by executing a contract. Furthermore, Article 23 of Turkish Civil Code numbered 4721 (“TCC”) states that no one can renounce his rights or unlawfully or illegally delimitate his freedoms3. In this context, Article 23 of TCC is applied to the state of unlawful or immoral delimitation of the economic freedom of a person. The delimitation of the economic freedom of a person by infringing the above-mentioned articles means that a person leaves himself to the other party’s wish, will and mercy4. For instance, this situation emanates when a person allocates his all economic life to the other party, undertakes to buy goods only from a specific firm and undertakes to sell only one type of good until the end of his life5. Likewise, pursuant to the partnership agreement between two partners, the undertaking of a partner not to leave the other partner throughout his life means the usurpation of the related partner’s economic entity, activity and future by the other partner and, this state is rendered null and void because of tying6. Accordingly, leaving one’s economic freedom to the wish, will or mercy of the other party of the contract will prompt the related contract to become a tying contract and this contract will be null and void within the scope of the factors analyzed in our article.
In our article, firstly, different definitions, pertaining to tying contracts, asserted in doctrine are adverted, and thereafter the freedom of contract being one of the key elements of tying contracts is analyzed in detail. Afterwards, the factors of tying contracts are analyzed and ultimately the sanctions to which the tying contracts are subject are interpreted.
II. DEFINLTLONS OF TYLNG CONTRACTS AND THE ISSUE OF TERMINOLOGY
Tying contracts are such contracts by which the economic freedom of a party of the contract is unduly delimitated in an immoral manner on the terms stipulated therein and accordingly his economic freedom becomes dependent on the will and wish of the other party7. The Supreme Court stated “…it is beyond question that a contract delimitating the economic freedom in an unacceptable manner is against good morals.” regarding tying contracts8.
There is no consensus in Turkish doctrine regarding the name of “the tying contracts”. Different names such as “throttling contracts”9, “enslaving contract”10, “garroting contract, deadlock contract”11, “mangle contract”12, “tightly tying contract”13, “tying contract”14 had been used in doctrine for tying contracts.
III. FREEDOM OF CONTRACT AS A COMPONENT OF TYING CONTRACTS
TCO and Swiss Code of Obligations which is the source of TCO indigenized a system based upon the principle of freedom of contract, regarding the determination of the content of the contract between the parties15.
Despite the fact that freedom of contract is an essential principle of law of obligations, neither in TCO nor in Swiss Code of Obligations constituting the source of TCO, this principle is defined16. The fact that there is no clear definition regarding freedom of contract in TCO is the very expected result of the nature of freedom of contract17. Yet, where freedom of contract is nonexistent, the freedom of determining content of contract will not have any meaning as well. Hence, this situation will render the existence of the principle of freedom of contract meaningless, which had been adopted as a basis in law of obligations. It should not be forgotten that there is a stringent bond between these two principles18.
According to the binary dissection indigenized by Turkish law and German law doctrine, the freedom of having the option whether to make a contract19 and the freedom of selecting the other party of the contract are included in the scope of freedom of contract20. When we move one more step down through the related dissection, we face the freedom of determining the content of contract. The freedom of determining the content of contract represents the determination of content21, amount, subject, term and type of the deeds stipulated in the contract, within the bounds regulated by the legislation22. Within the scope of this freedom, the parties of the contract have the option to implement the contract types regulated in TCO or, by modifying these types, draw up a contract type which is not regulated in TCO. This is called freedom of selecting the type23. TCO regulates the boundaries of freedom of contract and the sanctions meant for encroachment of this freedom. In Article 27 of TCO, said boundary is defined with the provision; “The contracts violating personal rights, public order, morality, imperative provisions of law or having an unfeasible subject are null and void.” The fate of tying contracts within the scope of TCO shall be interpreted the said provision.
Although in doctrine the view that tying contracts are deemed invalid because they constitute a contrariety to public morality prevails24; firstly, other factors conducing the definite nullity of the contracts, which are counted within the scope of TCO should be shortly discussed. Accordingly, the nullity of the contracts within the scope of TCO and Swiss Code of Obligations is analyzed depending on the dissection of the factors: contrariety against imperative provisions, public order, personal rights, public morality and the concept of impossibility.
The contrariety against the imperative provisions is the state of breach of the legal rules that cannot be altered, disabled by the will of the parties and must obligatorily be abided by25. In case of execution of a contract infringing the imperative provisions, the contract will be regarded as invalid and the imperative provisions will be implemented instead of the provisions of the contract26. From the broad perspective, it can be deduced that a contract contrarian against the public order, at the same time, infringes the imperative provisions of law27. However, in case there is no clear and concrete imperative provision, if the contract executed constitutes a contrariety against the public order; this contrariety has a different form than that of the contrariety against the imperative provisions28. Swiss Federal Court considers the concept of public order identical with the general legal order29; and the boundaries of the concept of public order have not been drawn in doctrine yet. To put it more generally, public order is a body of rules that individuals living in the society must obey for the sake of the society and the state30. So, the contrariety of a contract against these rules means the contrariety against the public order.
In case the contracts are executed in breach of personal rights, designation, on an individual basis, of components falling within the scope of personal rights is not possible31. For this reason, all dignity rendering someone “a person” on a legal basis shall be regarded as falling within the scope of personal rights32. The authority to decide on what personal rights and the protection regarding personal rights do comprise belongs to the judges in practice33. The contracts abolishing or profoundly delimitating personal rights and freedoms are null, in other words, crippled with nullity34. Another boundary of the freedom of determining the content of contract is the impossibility of the subject of contract. The impossibility of the subject of contract is the impossibility of the deed stipulated therein, objectively and abidingly, starting from the date of execution of the contract35. Because of such impossibility, the contract executed is regarded as null.
The contrariety of contracts against public morality is a criterion having obscure boundaries. Yet the definition of public morality and the conceptual reflection of public morality on law of contracts are interpreted in different ways in different doctrines. However, to make a definition complying with the notion embraced in Turkish legal doctrine, the contrariety against public morality is the contrariety against customs and etiquettes generally adopted in a society and the notion of morality and the public values36. Here, based on this notion of morality and public values, the contracts having unacceptable provisions can be regarded as contrarian against public morality37. In the contracts containing undertakings regarding compliance some actions and behaviors that should be a subject to the free will and choice of an individual according to the concept of morality, such undertakings are not contrarian against the morality per se. However compelling an individual to fulfil such undertaking stipulated in the contract and making this undertaking an obligatory deed of the contract constitutes contrariety against the morality38. For example, while changing or not changing a religion, occupation and residence will not constitute a contrariety against public morality conceptually, undertaking to do an act/ action to this end will be null and void by virtue of being in contrariety against the public morality39. Contrariety against morality may arise from the characteristics of the deed undertaken within the contract as well as exorbitance of the term of the contract or the burden thereof; and this kind of contracts constitutes tying contracts. Oğuzman stated the following regarding the manifestation of contrariety against morality in contracts: “If a contract is delimitating the economic freedom of a party exorbitantly, rendering a party dependent on another party’s arbitrary behaviour and creating such dependence for an exorbitant term, it may face nullity because of being in contrariety against public morality”40.
As is seen, the primary element of the contract that renders the nature “tying” for a party of the contract is that the contract is formed and executed in a contrarian manner against public morality. Specific to tying contracts, contrariety against public morality emanates in the unacceptable amount of delimitation of economic and personal freedom of a party. It is not possible to set a certain formula to detect when or in which conditions the freedom is delimitated in an exorbitant manner. Therefore, the contracts should be examined on a case by case basis and the conditions should be evaluated41. Having also said that the contracts delimitating personal and economic freedom of an individual in an amount unacceptable and contrarian against the public morality are further examined within the framework of the contrariety against personal rights, since the legal rules protecting the personal rights take part separately in Turkish law and Swiss law42. Accordingly, the criteria that have prominent roles in the emanation of tying contracts which are regarded as contrarian against public morality will be analyzed from this point of our article.
IV. THE CRLTERLONS OF TYLNG CONTRACTS
The criterions taking ascendant parts in the formation of tying contracts are mainly interpreted in two different divisions. In our article, these criterions are examined under the sections of “The Imperilment of Economic Freedom” and “Term”. Additionally, other criterions affecting the emanation of tying contracts are interpreted beside the abovementioned sections.
A. THE IMPERİLMENT OF ECONOMİC FREEDOM
With the implementation of contracts called “tying contracts”, a person loses his economic freedom and becomes dependent on the other party of the contract and moreover transforms into a flaccid tool in the hands of the other party43. Within the decisions of German, Swiss and Turkish supreme courts, this issue had been stated clearly44. According to the said decisions, if the conditions of a contract denotes the transfer of economic freedom of a party or render one of the parties dependent on the will and wish of the other party and the term of the contract is stipulated for a long time, then the economic freedom of related person is regarded exorbitantly delimitated. In our opinion, even if the conditions of the contract do not cause the exorbitant delimitation the economic freedom when considered solitarily, if the economic freedom of a person is delimitated exorbitantly when the contract is implemented as a whole, this contract will be regarded as tying contract as well. In conclusion, such delimitation of the economic freedom of a person in the present case conflicts with Articles 26 and 27 of TCO, Article 23 of TCC and Article 27 of Swiss Civil Code45. Within the decisions of German, Swiss and Turkish supreme courts, it has been emphasized that in case of the existence of certain components such as the transfer or imperilment of economic freedom of a person, and its nature becoming dependent on the other party, conclusion of that contract for long term would result in the emanation of tying contracts. If the content and/or the implementation of a contract do not put a person under economically burdensome obligations, only the long term of the contract does not render the contract a tying contract46.
Within the scope of tying contracts, the person whose economic freedom is delimitated exorbitantly and who becomes dependent on the other party does not have to be a real person. In case the authorized organs of a legal entity, within a contract executed by themselves, render the legal entity dependent on the wish and will of the other party of the contract or delimitate the economic freedom of the legal entity in a contrarian manner against public morality, the contract executed cannot be regarded as valid and consequently a tying contract emanates47.
.
B. Term
The second crucial criterion having an ascendant role in the formation of tying contracts is the lengthiness of the term48. The lengthiness of the term of a contract may not render the contract a tying contract alone49. This issue should be examined on a case by case basis50. Indeed, for a contract having been executed for a long term to be regarded as a tying contract, the economic freedom of one of the parties has to be delimitated exorbitantly and the related party has to become dependent on the other party51. However, even though the lengthiness of the term of a contract is not enough for a contract to be regarded as a tying contract, it is still a crucial trace and criterion therefore52.
It should be crystalized that how much time is meant when it comes to forming a tying contracts by the reason of long term. There is no clear legal prohibition that may affect the validity of the contracts that are not limited with a certain time. However, in doctrine and jurisprudence, these kinds of contracts are regarded as contrary to public morality and hence invalid53. In case of execution of a contract with a time limit but executed on a long term basis, there is no legal prohibition that may affect the validity of the contract. Accordingly, formation of tying contracts by the reason of long term criterion shall be subject to the type of the contract and the conditions of the present case54. It is not possible to determine a general term that covers all contract types in terms as to whether the lengthiness of the term would cause a contract to become in violation of the public morality55. Indeed, due to the terms and type of the contract, the period of time meant with the concept of “long term” may vary.
In the long-drawn out contracts, one of the most crucial criterions causing the emanation of tying is that there is no possibility to terminate the contract or this possibility is restricted significantly56. If the possibility to terminate the contract within a contract is not restricted significantly, a party of the contract has the opportunity to be freed from such contract putting a burdensome obligation on him and rendering him dependent on the other party. Where such right is existent, there is no need to invalidate the contract by the reason of tying57.
In conclusion, the long term stipulated within the contract, is mainly not enough to form a tying contract (exceptions may occur as a result of interpretation of the present case) and the contract must be completed with economic dependence therefore58. In other words, along with the fact that a contract is executed for a long term, one must also examine as to whether the economic freedom of a party is put under a considerable risk, and whether he becomes dependent on the other party thereof. Within the decisions of Swiss Federal Court, this issue has been stated very clearly59. Within the related court decisions, in case of the existence of criterions such as transfer and imperilment of the economic freedom of a person, and economic dependence of a party on the other party, the long term stipulated within the contract is regarded to cause the emanation of tying contracts.
C. Balance of The Deeds and Overcharge
Another criterion that should be taken into consideration regarding the detection of the exorbitant delimitation and imperilment of economic freedom within the scope of a contract is the balance of the deeds therein60. The imbalance between the deeds of the parties of a contract is not a sole criterion causing the emanation of a tying contract. When all terms and conditions of a contract are examined together with the imbalance between the deeds, the contract may be regarded as a tying contract. If there is a significant imbalance between the deeds in a contract, the contract should be examined within the scope of overcharge. Indeed, there are explicit differences between tying contracts and overcharge in Turkish and Swiss legal system. Specifically, the formation phase of overcharge is significantly different than that of tying contracts61. Yet, it is a matter of the formation phase of overcharge that a particular situation of a party is exploited by the other party of the contract62. On the contrary, tying contracts are examined not according to the subjective conditions during the formation phase, but according to the present case arising out of the implementation thereof63. Furthermore, while detecting whether a contract forms a tying contract, the existence of an exorbitant delimitation of the economic freedom of a person will be sought; however, in case of overcharge, such delimitations will not need to be existent and the exploitation of the particular condition of a person in the present case will be solely enough to cause overcharge.
V. OPINIONS ON REVOCABILITY AND NULLITY AS A SANCTION OF TYING CONTRACTS
There is no hesitation in doctrine that the legal basis to regard a contract as a tying contract is the contradiction with public morality64.Nonetheless, the regulations forming source for tying contracts in Turkish and Swiss law are set forth in two separate places as Articles 26 and 27 of TCO (Obligationenrecht, Article 19-20) and Article 23 of TCC (Zivilgesetzbuch, Article 27). In this context, there are two main opinions in doctrine regarding what sanction should be applied to the contracts restricting the personal freedoms and in what legal provision such contracts, including tying contracts, should be interpreted. According to the first opinion, the interests forming the protection regarding the contrariety against public morality varies in TCO and TCC, and in this direction tying contracts should be interpreted within the scope of the contracts restricting personal rights exorbitantly, under Article 23 of TCC. Consequently, those who support this opinion in doctrine argue that the sanction applicable to tying contracts should be revocability65. According to the second and prevailing opinion in doctrine, contrariety against public morality emphasized in the related articles of both TCO and TCC have been regulated to refer to the same meaning; hence there shouldn’t be any difference pertaining to the type of sanction and accordingly the sanction that should be applied to tying contracts should be nullity.
The concept of nullity is used to express a transaction which is legally invalid from the beginning. A null contract is a legally invalid transaction from the time of formation; hence it can neither gain validity nor bear any legal consequences. Therefore, the nullity arising from the contract does not disappear within time and cannot be remedied even with the consent of the parties or with the fulfilment of the deeds stipulated within the contract66. Even if the reason for nullity disappears later, the existence of nullity will remain. For example; should parties executed a sales contract for goods subject to import prohibition, the contract would not gain validity even if the import prohibition on such goods have been abrogated later. The contract will always stay null by the reason of having an unlawful content. Even if the parties fulfilled their obligations stipulated within the contract, there won’t be any difference regarding the fate of the contract. However, naturally, the parties may execute another legal sale contract. In this direction, the latter contract is totally a new contract, and does not form any validated or legitimized version of the previous contract in any wise67.
By nullity’s very nature, invalidity of a contract can always be asserted by the related persons. The judge also takes this situation into consideration ex officio68. While it is accepted in the doctrine that there is no difference between Articles 26-27 of TCO and Article 23 of TCC and the same sanction should be applied in both cases, there is another opinion arguing that the purpose these provisions should be assessed on each concrete case respectively and the fate of the contract should be decided considering the purpose of abovementioned articles. According to this opinion, unless and until the person whose freedom is restricted by the contract wishes so, the other party of the contract should not be able to assert the nullity of the contract by the reason of contrariety against public morality69. This opinion converges with the abovementioned opinion arguing revocability regarding tying contracts. Those who argue this opinion do not crystalize the issue of what kind of method should be adopted regarding whether the judge can take the situations by which a person’s freedom is restricted exorbitantly into consideration ex officio70.
In conclusion, as stated in prevailing opinion in doctrine as well, we are of the opinion that the sanction of tying contracts should be nullity. In this direction, the judge should evaluate the concrete case concerning the tying contracts within the scope of nullity and adjust the provisions delimitating the economic freedom exorbitantly to a reasonable level depending on the characteristics of the case or invalidate such provisions or decide on invalidity of the whole contract71.
VI. CONCLUSION
While conducting their economic activities in social life, one of the indispensable elements of the personal rights of persons that should be protected is the freedom of economic activity of persons. Freedom of executing contracts in order for those persons to execute their economic activities is another most essential freedom. However, delivery of the freedom of economic activity to all parties jointly within the scope of a contract will not always be possible. In some cases, one of the parties of a contract delimitates his own economic freedom in an unacceptable manner from the public morality rules’ aspect, for the sake of the other party thereof and hence a state of tying emerges within the contract. These contracts are called tying contracts.
The provisions causing the emanation of tying contracts, in other words the divestment of economic freedom of a party thereof cannot be regarded as a part of economic freedom of the other party. As all freedoms of persons have a limit, freedom of contract has also its limits. In this context, there is no possibility to deem tying contracts that emerge through exceeding the limits of freedom of contract, legally valid.
BIBLIOGRAPHY
Veysel Başpınar, Kişilik Hakkı Açısından Kelepçeleme Sözleşmeleri, Ankara Bar Journal, Vol. 1, Ankara 1999.
Necip Kocayusufpaşaoğlu/ Hüseyin Hatemi/ Rona Serozan/ Abdülkadir Arpacı, Borçlar Hukuku Genel Hükümler, Vol. 1, 4th Edition, Istanbul 2008.
Akın Ünal, Kelepçeleme Sözleşmeleri, 1st Edition, Ankara 2012.
Mustafa Dural/ Tufan Öğüz, Türk Özel Hukuku, Vol. 2, Kişiler Hukuku, 9th Edition, Istanbul 2009.
Ahmet Kılıçoğlu, Borçlar Hukuku Genel Hükümler, 17th Edition, Ankara 2013 Christian Heinrich, Formale Freiheit und Materiale Gerechtigkeit, 1st Edition, Tübingen 2000.
M. Kemal Oğuzman/ Turgut Öz, Borçlar Hukuku Genel Hükümler, 11th Edition, Istanbul 2013.
S. S. Tekinay/ S. Akman/ H. Burcuoğlu/ A. Altop, Tekinay Borçlar Hukuku Genel Hükümler, 7th Edition, Istanbul 1993.
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Cees van Dam, European Tort Law, 2nd Edition, Oxford 2013.
M. Kemal Oğuzman/ Özer Seliçi/ Saibe Oktay Özdemir, Kişiler Hukuku, 9th Edition, Istanbul 2009.
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Franco Lorandi, Dauerschuldverhältnisse im neuen Sanierungsrecht, Zurich 2014.
Hans Giger, Rechtsfolgen norm- und sittenwidriger Verträge, Zurich 1989 Franz Bydlinski, Zulässigkeit und Schranken ewiger und extrem langdauernder Vertragsbingdung, Wien 1991.
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FOOTNOTE
1 Veysel Başpınar, Kişilik Hakkı Açısından Kelepçeleme Sözleşmeleri (Kelepçeleme), Ankara Bar Journal Vol. 1, Ankara 1999, p. 18-19; Necip Kocayusufpaşaoğlu/ Hüseyin Hatemi/ Rona Serozan/ Abdülkadir Arpacı, Borçlar Hukuku Genel Hükümler, Vol. 1, 4th Edition, Istanbul 2008, p. 557-558.
2 TCO ARTICLE 27 – The contracts being contrarian against imperative provisions in legislation, morality, public order, personal rights or having an impossible subject are null and void. Nullity of a part of the provisions within a contract does not affect the validity of other provisions. However, if it is clear that without these provisions the contract cannot be executed, then the whole contract becomes invalid.
3 TCC ARTICLE 23 – Nobody can renounce his capacity to act and capacity to have rights even partially. Nobody can renounce his freedoms or delimitate them in defiance of law or morality. Upon written consent it is possible to take, vaccinate and transfer anthropogenic biological substance. However, it cannot be asked from a person to fulfil his obligation who undertook the covenant to give biological substance, pecuniary and non-pecuniary damages cannot be requested.
4 Başpınar, Kelepçeleme, transfered from p. 19, Edwin Schweingruber, Die wirtschaftlich schwächere Vertragspartei insbesondere nach den allgemeinen Bestimmungen des schweizerischen Obligationenrechtes, Bern 1930, p. 115.
5 Başpınar, Kelepçeleme, p. 19.
6 Başpınar, Kelepçeleme, transfered from p. 19, Rudolf Scheuing, Der Knebelvertrag, Stuttgart 1930, p. 3.
7 Akın Ünal, Kelepçeleme Sözleşmeleri, 1st Edition, Ankara 2012, p. 110.
8 Yargıtay HGK., T. 20.03.1974, E. 1970/T-1053, K. 1974/222.
9 Ünal, transfered from p. 5, Ergun Özsunay, Gerçek Kişilerin Hukuki Durumu, 5th Edition, Istanbul 1982, p. 152.
10 Ünal, transfered from p. 5, Şener Akyol, Dürüstlük Kuralı ve Hakkın Kötüye Kullanılması Yasağı, 2nd Edition, Istanbul 2006, p. 124.
11 Mustafa Dural/ Tufan Öğüz, Türk Özel Hukuku, Vol. 2, Kişiler Hukuku, 9th Edition, Istanbul 2009, p. 139.
12 Ünal, transfered from p. 5, Yeşim Atamer, Sözleşme Özgürlüğünün Sınırlandırılması Sorunu Çerçevesinde Genel İşlem Şartlarının Denetlenmesi, 2nd Edition, Istanbul 2001, p. 155.
13 Ünal, transfered from p. 5, Hasan İşgüzar, Tek Satıcılık Sözleşmesi, Ankara 1989, p. 102.
14 Ünal, transfered from p. 6, Veysel Başpınar, Borç Sözleşmelerinin Kısmi Butlanı (Butlan), Ankara 1998, p. 140.
15 Ahmet Kılıçoğlu, Borçlar Hukuku Genel Hükümler, 17th Edition, Ankara 2013, p. 78; Ünal, trasfered from p. 3, Hasan Erman, Borçlar Hukukunda Akit Serbestisi ve Genel Olarak Sınırlamaları, İÜHFM, Vol. 38, Edition 1-4, p. 601; Başpınar, Butlan, p. 2.
16 Başpınar, Butlan, p. 15; Eren, p. 270-271.
17 Ünal, p. 39.
18 Eren, p. 270-271.
19 Christian Heinrich, Formale Freiheit und materiale Gerechtigkeit, 1st Edition, Tübingen 2000, p. 55.
20 M. Kemal Oğuzman/ Turgut Öz, Borçlar Hukuku Genel Hükümler, 11th Edition, Istanbul 2013, p. 24; S. S. Tekinay/ S. Akman/ H. Burcuoğlu/ A. Altop, Tekinay Borçlar Hukuku Genel Hükümler, 7. Baskı, İstanbul 1993, p. 362.
21 Heinrich, p. 55.
22 Ünal, p. 52.
23 Derya Ateş, Sözleşme Özgürlüğü Yönünden Dürüstlük Kuralları, TBB Journal, Vol. 72, 2007, p. 80.
24 Oğuzman/Öz, p. 89; Ünal, p. 200; Oğuzman/ Seliçi/ Oktay Özdemir, p. 151; Eren, p. 292; Tekinay/ Akman/ Burcuğlu/ Altop, p. 390, 391.
25 Oğuzman/ Öz, p. 83; Tekinay/ Akman/ Burcuoğlu/ Altop, p. 395.
26 Eren, p. 287.
27 Oğuzman/ Öz, p. 84; Tekinay/ Akman/ Burcuoğlu/ Altop, p. 402-403.
28 Cees van Dam, European Tort Law, 2nd Edition, Oxford 2013, transfered from p. 83, Konstantin Simitis, Gute Sitten und Ordre Puplic, Ein kritischer Beitrag zur Anwendung des § 138 Abs. 1 BGB, Marburg 1960, p. 168, Oğuzman/Öz, p. 85.
29 BGE 56 I 431.
30 Van Dam, transfered from p. 83, Simitis, p. 78; Oğuzman/Öz, p. 85.
31 Ünal, p. 72.
32 M. Kemal Oğuzman/ Özer Seliçi/ Saibe Oktay Özdemir, Kişiler Hukuku, 9th Edition, Istanbul 2009, p. 135.
33 Oğuzman/ Seliçi/ Oktay Özdemir, p. 135; Dural/ Öğüz, p. 94-95.
34 Heinrich, p. 145; Eren, p. 289; Dural/ Öğüz, p. 138; Oğuzman/ Seliçi/ Oktay Özdemir, p. 150.
35 Eren, p. 295.
36 Tekinay/ Akman/ Burcuoğlu/ Altop, p. 398.
37 Reinhard Zimmermann, Richterliches Moderationsrecht oder Totalnichtigkeit: Die Rechtliche Behandlung anstössig-übermässiger Verträge, 1st Edition, Berlin 1979, p. 50.
38 Ünal, p. 93.
39 Tekinay/ Akman/ Burcuoğlu/ Altop, p. 398-402.
40 Oğuzman/Öz, p. 89.
41 Eren, p. 293.
42 See also. TCC Art. 23; ZGB Art. 27.
43 Ünal, p. 129.
44 BGE 114 II 159; BGE 123 III 345; BGE 111 II 330; BGE 104 II 6; HGK. 11.2.1976, E. 1974/4-1088, K. 1976/209; HGK 22.05.2013, E. 2012/11-1601, K. 2013/752; HGK. 07.12.2015, E. 2015/5612, K. 2015/13054; HGK. 02.11.2015, E. 2015/4311, K. 2015/11343; HGK. 25.10.1995, E. 1995/3545, K. 1995/8845; HGK. 26.11.1994, E. 1994/6472, K. 1994/11467.
45 Oğuzman/ Seliçi/ Oktay Özdemir, p. 152.
46 Eugen Bucher, Schweizerisches Obligationenrecht Allgemeiner Teil ohne Deliktsrecht, 2nd Edition, Zurich, 1988, p. 263; BGE 114 II 159; BGE 114 II 163.
47 Scheuing, p. 29, Başpınar, Kelepçeleme, p. 24.
48 Başpınar, Kelepçeleme, p. 25.
49 Franco Lorandi, Dauerschuldverhältnisse im neuen Sanierungsrecht, Zurich, 2014, p. 293.
50 Ünal, p. 131.
51 Oğuzman/ Seliçi/ Oktay Özdemir, p. 151.
52 Ünal, p. 133.
53 Tekinay/ Akman/ Burcuoğlu/ Altop, p. 392; BGE 25 II 450; BGE 25 II 473; BGE 93 II 300.
54 Hans Giger, Rechtsfolgen norm- und sittenwidriger Verträge, Zurich, 1989, p. 73.
55 Giger, p. 73.
56 Franz Bydlinski, Zulässigkeit und Schranken ewiger und extrem langdauernder Vertragsbindung, Wien, 1991, p. 33-34.
57 Ünal, p. 136.
58 Oğuzman/ Seliçi/ Oktay Özdemir, p. 151.
59 BGE 114 II 159; BGE 123 III 345; BGE 111 II 330; BGE 104 II 6; BGE 102 II 218.
60 Giger, p. 72-73; Başpınar, Kelepçeleme, p. 26.
61 Ünal, p. 138.
62 Eren, p. 380-381.
63 Ünal, p. 139.
64 Ünal, p. 199.
65 Ünal, p. 199.
66 Tekinay/ Akman/ Burcuoğlu/ Altop, p. 376.
67 Eren, p. 301.
68 Tekinay/ Akman/ Burcuoğlu/ Altop, p. 375- 376, Başpınar, Butlan, p. 141.
69 Eren, p. 302-303.
70 Ünal, p. 201.
71 Nihat Yavuz, Türk Borçlar Kanunu Şerhi, Ankara, 2013, p. 303-304.
