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As it is known, a contract is established when the parties declare their mutual and appropriate declarations of will. Exceptionally, contracts that give rise to an option with a unilateral declaration of will are also possible.
Contracts are one of the most important sources in our law, such as tort and unjust enrichment.
Establishment of the Contract:
The party that wishes to make a contract presents the proposal to make a contract to the other party, and the other party accepts this proposal and wants to discuss the contract reveals the concepts of proposal and acceptance in the contract law. The party wishing to make a contract may notify the other party of its will, content of the contract and expectations with a letter of intent. The letter of intent is not legally binding and is an offer for contract negotiations. In order to ensure the confidentiality of the contract negotiations, the parties may enter into a confidentiality agreement, a non-negotiation agreement on the subject of the same agreement. With these contracts; If the information provided during the negotiations is used and the party suffers damage, the penalty fee may be determined.
In order for a contract to be considered legally established, an agreement must be reached on the essential elements of the contract. The essential element will change due to the nature of each contract. For example, the determination of the product to be sold is essential when making a sales contract. If the essential elements are not included in the contract, the contract is legally null and void. Establishment of the contract and its entry into force do not mean the same. The effective date of the contract in terms of the birth of rights and obligations must be specified in the contract.
The elements that are important for the parties in the contract and that the parties do not want to establish the contract in case of deficiency are considered as the side elements of the contract.
Form of Contract:
Form freedom is adopted in contracts in our law. The parties can make contracts as they wish, apart from the contracts stipulated by law. However, even if the law does not stipulate, making the contract in writing is important in terms of proof. If the contracts for which the form requirement is required by law are not made in accordance with the form, the contract is void as per the TCO. For example; Construction contracts in return for land shares must be made in a notary “arrangement” manner.
Contents of the Contract:
The contract must primarily contain a date. When the contract was concluded; It is important in that the contract comes into force and creates rights and obligations. Contract; It will enter into force on the date it is signed, or it can enter into force on a date determined between the parties. If the parties to sign the contract are legal entities, the signatory circular must be checked from the trade registry gazette. Copies should be prepared in accordance with the number of parties and each page of the contract should be signed by the parties. If the contract includes technical elements, the technical specification should also be added to the contract. Writing the numbers in the contract in parentheses with handwriting will also prevent future confusion.
The rights and obligations arising from the contract should be clearly determined with the contract. As long as it does not constitute a violation of the mandatory provisions of the law, freedom is given to the parties in this regard. It is important for the parties to clearly determine the purpose of the contract in legal qualification. The place and time of performance, how the subject of the contract will be performed, whether delayed performance will be accepted or not should be determined in the contract. This issue is important in terms of the penal clause to be included in the contract. For which liabilities the penalty clause is valid, the price of the penal clause should be clearly written in the contract. If the performance is not as specified in the contract; If the performance creditor wants to terminate the contract or if the performance is not done properly, if the damage occurs, it can determine a penalty as a sanction. Another issue is whether to turn to alternative solutions in case of dispute. In case of breach of the contract between the parties, they may determine the way of arbitration or, in the contract, the intermediary they will choose to remedy the breach. The mediator is the person who will resolve the dispute objectively by protecting the interests of both sides. While establishing the contract, the parties; It can determine the competent court, provided that it is not against the law.
If it is suspected that there will be difficulties in performance while the contract is being established or the contract is currently in progress, the performance creditor may request a guarantee. Guarantees; It is divided into two as personal and in kind guarantees.
Surety agreements emerge when looking at the personal guarantee. With the surety agreement, the surety undertakes to pay the debt determined by the contract in cases where the performance debtor cannot fulfill its performance. Surety agreements are mainly made for unborn debts. It should be observed that the surety is under debt for the part after the date of the surety contract, in the event that a surety contract is made while there is an existing debt relationship. Guarantor; He should write clearly in his own handwriting which debt he has mainly secured with the contract, the amount he is responsible for and the period of time. Another important issue in terms of surety agreements is whether the consent of spouses is sought or not. The consent of the guarantor’s spouse must be obtained at the latest at the time of the contract establishment. Subsequent consent is absolutely void. If the spouse does not give consent; his will is completely protected by the law, and applying to the court does not have any sanctions in this regard. Finally, if the divorce case is filed and the spouses start to live separately, the consent of the guarantor’s spouse is not sought.
Since the surety agreement is of an expedient nature, it expires if the original contract is canceled.
If in kind coverage; There is a way to liquidate the mortgage. It should not be forgotten that the mortgage establishment must be made officially at the land registry.
Contract Renewal, Termination:
Termination conditions and results should be clearly defined in contracts that result in permanent debt. It should be kept in mind that the termination notification is forward-looking, and the termination has a retrospective effect.
Likewise, what will happen at the end of the contract should be clearly specified in the contract. When the contract is renewed, the termination of the contract and the conclusion of a new contract with the same rights and obligations is called renewal; revision of the contract provisions and the continuation of the contract by the parties is called amendment. The important point here is that the change in the contract cannot be made with a unilateral declaration of will. It must be done by fulfilling the condition of the form in which the contract is made. However, in cases where the debt is relieved, the ordinary form requirement is valid.
Hunting. Sirin Gungor
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