Table of Contents
General Overview
Can a foreigner who signs a contract written in Turkish later claim that he is not bound by the contract because he signed it without understanding its content? Although the answer to this question varies depending on the contracting parties and the content of the contract, it can be said that, as a rule, the claim of not knowing Turkish would not, by itself, make the contract invalid.
In practice, The Court of Cassation (Yargıtay) did not find the abstract claim of mistake regarding the mediation agreement alleging invalidity due to not knowing Turkish sufficient[1].
Similarly, The Court of Cassation ruled to dismiss the action, stating that while the allegation that a person who does not know Turkish was fraudulently made to sign a document for the transfer of ordinary partnership shares could be proven by witnesses, the witness statements in the file did not establish this fact[2].
For the contract to be invalid, the person who does not know Turkish must additionally prove that their consent was defective. For example, the Law recognizes the incorrect transmission of a person’s consent by an intermediary such as a translator as a case of defect of consent (mistake in transmission) (Law No. 6098, Art. 33). By proving this, the person can be relieved from being bound by the contract.
If a situation of mistake (error) that makes the contract invalid arises due to the party not knowing Turkish, attention must also be paid to the issues of fault in mistake[3] and the principle of good faith[4]. The issue of a foreigner’s failure to understand a contract cannot be resolved by a single general principle; it necessitates separate examination for different situations such as standard contract terms, consumer contracts, commercial contracts, and contracts subject to formal requirements.
Standard Contract Terms
Standard contract terms are the contractual clauses that the drafting party prepares unilaterally beforehand for use in many similar contracts, and presents to the other party when the contract is being concluded (Law No. 6098, Art. 20/1). According to the prevailing opinion in the doctrine, the validity of standard contract terms for a person who does not know Turkish depends on these terms being explained in a language the addressee understands[5]. The drafting party is the one who must prove that they made the necessary explanation. Scholars also indicate that the standard contract terms must be written in a language the foreigner understands[6].
An opposing view in the doctrine (legal scholarship) argues that it is sufficient for standard contract terms to be in the language of the country where they are presented to the other party[7]. This argument is supported by examples from German law, such as the case of a Turkish person opening an account at a German bank, where the standard contract terms being written in German (not Turkish) was considered sufficient. It seems appropriate to conclude that if the drafting party could not reasonably verify that the other party did not know the language while concluding the contract—for example, if the contract is concluded electronically—then the other party’s claim of invalidity should not be honored. However, in such a case, other reasons that cause the standard contract terms to be invalid may still exist.
Consumer Contracts
I n consumer contracts, a term included in the contract without being individually negotiated with the consumer and detrimental to the consumer in a manner contrary to the principle of good faith is considered an unfair term. Unfair terms are null and void, and the remainder of the contract retains its validity excluding these terms (Law No. 6502, Art. 5/1-2). Written consumer contracts are generally drafted as standard form contracts. If the drafting party claims that a term was individually negotiated with the consumer, that party bears the burden of proof (Law No. 6502, Art. 5/3). For consumers who do not understand Turkish, the negotiation must take place in a language they understand. Consumer contracts containing standard contract terms are primarily subject to the provisions of Law No. 6502. In the absence of specific provisions, the provisions of Law No. 6098 regarding standard contract terms shall apply.
Commercial Contracts
Every merchant must act as a prudent business person in all their commercial activities (Law No. 6102, Art. 18/2). A merchant who signs a contract without understanding its contents, without seeking the assistance of an interpreter, has failed to exercise the diligence and care required by law. In such a case, the merchant’s claim that the contract is invalid is not accepted. However, it is not accurate to conclude that a merchant who does not know Turkish can never claim the contract’s invalidity under any circumstances. When the merchant’s claim regarding a defect of consent is examined, it will also be assessed whether he acted as a prudent business person[8].
Contracts Subject to Formal Requirements
In contracts subject to formal requirements, such as a promise to sell real estate required to be drawn up before a notary, the presence of a sworn interpreter is mandatory for the party who does not know Turkish (Law No. 1512, Art. 74). Non-compliance with this rule causes the contract to be invalid[9].
Tenancy Agreements
It is appropriate to briefly address tenancy agreements, as they are transactions frequently concluded by foreigners. The important point concerning tenancy agreements is how the contract is classified based on the specific facts of the case. Depending on the situation, the clauses in the agreement may be considered standard contract terms, or the tenancy agreement itself may qualify as a consumer contract.
If the tenancy agreement does not relate to a merchant’s commercial activity, does not qualify as a consumer contract, and does not contain clauses that would be considered standard contract terms, the fact that the contract is in Turkish is not a cause for invalidity for the party who does not know Turkish. The party who does not know Turkish must additionally prove that their consent was defective.
[1] Y11HD, September 4, 2023, E. 2023/4118, K. 2023/4599
[2] Y2HD, April 2, 2015, E. 2015/4248, K. 2015/5488
[3] Law No. 6098, Art. 35/1: “If the mistaken party is at fault in their mistake, they are obliged to compensate the damage arising from the invalidity of the contract. However, compensation cannot be claimed if the other party knew of the mistake or ought to have known it.”
[4] Law No. 6098, Art. 34: “The mistaken party cannot claim their mistake in a manner contrary to the principle of good faith.
The contract shall be deemed established in the sense intended by the mistaken party, particularly where the other party declares their consent to its establishment in that sense.”
[5] Tuğçe Tuzcuoğlu. (2020). Avrupa Birliği Normları ve 6098 Sayılı Türk Borçlar Kanunu Hükümleri Işığında Genel İşlem Şartları. p.138
[6] Osman Gökhan Antalya. (2019). Marmara Hukuku Yorumu Borçlar Hukuku Genel Hükümler Vol: V/1,1. p.498
[7] Hilal Yüksel. (2023). Genel İşlem Koşullarında Kapsam (Yürürlük) Denetimi. (Doctoral Thesis). p.128-129
[8] İstanbul 2. ASTM, December 24, 2021, E. 2019/707, K. 2021/927
[9] Y14HD, October 1, 2013, E. 2013/5630, K. 2013/12434