This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Sözleşme Hazırlarken Atlanan On Madde.
Contracts turn into disputes mostly because of what is missing from them. A contract is formed once the parties, the subject matter and the price are written down — but without clauses on default, penalties, termination and service, there is nothing to rely on when things go wrong. The list below sets out the clauses whose absence causes the most trouble.
Contracts are usually signed while everything is going well, which is exactly why the most critical clauses are left out: what happens if there is a problem?
Parties, Subject Matter and Price
1. Name the parties fully and correctly. For an individual, full name and identity number; for a company, the full trade name, registry and tax numbers, and the person authorised to represent it. A contract signed by someone without authority causes trouble; check the signature circular.
2. Define the subject matter. Instead of “consultancy services will be provided”, list the scope, the deliverables and what is expressly excluded. Most disputes come from an undefined scope.
3. Price and payment terms. The amount, the currency, whether VAT is included, the payment schedule, and against which document payment is made. Where a foreign currency is used, the restrictions in the legislation on the use of Turkish lira must be checked.
Time, Default and Penalty Clauses
4. Time and delivery. Start, end and interim delivery dates — and what the start depends on (payment of an advance, handover of the site).
5. Default. Under Article 117 of the Code of Obligations, where the parties have fixed the day for performance together, the debtor falls into default when that day passes, without any notice being required. Where no date is fixed, a notice is needed.
So write in a fixed date. Set the rate of default interest too; without it the statutory rate applies, and in commercial matters the higher commercial rate comes into play.
6. A penalty clause. Permitted by Articles 179 and following, and the creditor may claim the penalty without proving loss. It is among the strongest deterrent clauses available.
But note: the court reduces a penalty it considers excessive, of its own motion (Article 182), and special rules apply between merchants. Set the figure realistically and proportionately.
State also whether the penalty is claimable in addition to performance or instead of it; otherwise the point becomes a matter of argument.
Termination and Force Majeure
7. Termination and rescission. In what circumstances, on what notice and in what manner the contract can be ended. Also:
- the grounds for immediate termination for just cause
- the form of the notice (in writing, by notary, by e-mail)
- the consequences — payment for work done, obligations to return, the treatment of advances
8. Force majeure. What happens to the parties' obligations in the event of natural disaster, epidemic, war or a change in the law. Say how force majeure is to be notified and after how long the contract ends.
Article 138 also governs hardship: where performance has become excessively difficult through an unforeseeable extraordinary event, the debtor may ask the court to adapt the contract to the new circumstances. An adaptation clause makes that process easier.
Jurisdiction, Evidence and Service
9. Jurisdiction and agreements as to evidence.
There is an important limit on jurisdiction agreements: under Article 17 of the Code of Civil Procedure, only merchants and public legal persons may agree jurisdiction for a dispute that has arisen or may arise between them. A jurisdiction clause does not bind a consumer.
An agreement as to evidence (Article 193) is highly practical: the parties may agree that their commercial books, e-mail correspondence and defined records shall be conclusive evidence. That makes proof far easier.
If arbitration is preferred, the arbitration clause must be written clearly and completely.
10. The address for service. Set out each party's address for notices, and provide that service at the old address remains valid unless a change is notified to the other party in writing. This clause heads off service problems when a dispute arises.
| Clause | What it prevents |
|---|---|
| Full identification of the parties | Signature by someone without authority |
| Defined scope and deliverables | Disputes about what was promised |
| Fixed date for performance | Argument about whether notice was required |
| Default interest rate | Falling back on the statutory rate |
| Penalty clause | Having to prove loss |
| Termination clause | Argument about how the contract ended |
| Force majeure and adaptation | Deadlock when circumstances change |
| Agreement as to evidence | Difficulty of proof |
| Address for service | Missed notices and lost deadlines |
A jurisdiction agreement binds only merchants and public legal persons; it does not bind a consumer.
Under Article 117, where the parties have fixed the day for performance the debtor falls into default automatically when it passes — no notice, no argument, and interest runs from that day. A single dated line does more work than any other clause in the contract.