Contract Formation: Declaration of Intent, Offer and Acceptance

An offer must contain the essential terms and an intention to be bound upon acceptance; it may be addressed to an individual or the public. Under TBK m.8/2, displaying goods with a price or sending tariffs, price lists or similar documents counts as an offer unless the contrary is clearly and readily apparent. Shop displays and catalogues are not invariably mere invitations to offer.

Under TBK m.3, a person making an offer with a fixed period is bound until the period expires. An offer between persons present, without a fixed period, lapses if not accepted immediately (TBK m.4). For absent parties, the offer binds for a reasonable time normally required for a reply.

Acceptance is the unequivocal expression directed to the offeror that the contract is to be formed on the terms of the offer. Acceptance differing from the offer's terms constitutes a new offer; the original offer lapses and the roles are reversed.

For absent parties, formation when acceptance reaches the offeror must be distinguished from retroactive effect from dispatch under TBK m.11. Not every contract is formed merely by sending acceptance. Silence is generally not acceptance; cases where express acceptance is unnecessary are governed separately by m.6 and m.11/2.

Under TBK m.2, where the parties have agreed on the essential elements of the contract, it is deemed formed even if secondary points are unsettled. Disagreement on secondary points is resolved by the court according to the nature of the matter and good faith.

Essential terms depend on the contract type. An express numeric price is not invariably necessary where it is determinable or a statutory rule fills the gap. For example, TBK m.481 provides a valuation rule for a work contract where the price has not been fixed in advance.

The rule in Turkish law is freedom of form (TBK m.12/1): contracts are bound to no particular form unless statute provides otherwise. However, statute prescribes a validity form for some contracts — promises to sell immovables, suretyships, donations, construction in return for a share, marriage and inheritance contracts.

Failure to comply with the prescribed form generally results in absolute nullity (TBK m.12/2). Forms agreed by the parties are not statutory; unless proved otherwise, they are deemed validity forms.

In contractual disputes, not only the signed text but also offer correspondence, revision history, invoices, delivery records, payment records, formal notices and the parties' subsequent conduct are taken into account. The formation, performance and termination of a contract often acquire meaning only through these ancillary documents.

Form requirements, authority of representation, penalty clauses, exclusion-of-liability provisions, standard terms and consumer-protection rules may all affect the validity or enforceability of a contract. For standard terms, the requirements of clear information, an opportunity to learn their content and acceptance under Article 21 of the Code of Obligations must be considered, together with any special consumer rules.

Before any dispute arises, the scope of obligations, delivery date, defect notice, default notice, interest and competent-court clauses should be drafted explicitly. Vague provisions may give rise to interpretation disputes and to difficulties of proof later on.