Article 32 MÖHUK – Existence and validity of a contract

Article 32 of Turkish Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK) is headed “Existence and material validity of the contractual relationship” (sözleşmeden doğan ilişkinin varlığı ve maddî geçerliliği). Whether a contract was formed and whether it is materially valid is decided under the law that would govern the contract if it were valid. Paragraph 2 protects a party whose conduct or silence might count as consent under a foreign law. You may run into this article if you did not reply to an offer from Turkey, or if there is a dispute about whether an agreement was concluded by email alone.

Article 32 MÖHUK – text

Unofficial translation:

Existence and material validity of the contractual relationship
Article 32 – (1) The existence and material validity of a contractual relationship or of any of its terms are governed by the law that would apply if the contract were valid.
(2) Where it appears from the circumstances that it would not be equitable to determine the effect of a party’s conduct under the applicable law, the existence of the declaration of intent is governed by the law of the country in which the party claiming not to have consented has its habitual residence.

Turkish original:

Sözleşmeden doğan ilişkinin varlığı ve maddî geçerliliği
MADDE 32 – (1) Sözleşmeden doğan ilişkinin veya bir hükmünün varlığı ve maddî geçerliliği, sözleşmenin geçerli olması hâlinde hangi hukuk uygulanacaksa o hukuka tâbidir.
(2) Taraflardan birinin davranışına hüküm tanımanın, uygulanacak hukuka tâbi kılınmasının hakkaniyete uygun olmayacağı hâlin şartlarından anlaşılırsa, irade beyanının varlığına, rızası olmadığını iddia eden tarafın mutad meskeninin bulunduğu ülke hukuku uygulanır.

The current text in the UYAP Mevzuat system shows no amendment to this article (as of November 2026).

Legislative reasoning

According to the reasoning of the draft law, the article is new; the former Law No. 2675 had no equivalent. The law governing the terms of the contract is also to govern its formation, except for capacity and form. Paragraph 2 is an exception: whether a party’s conduct or silence has any legal effect is decided under the law of the habitual residence (mutad mesken) of the party claiming not to have consented. The reasoning uses the article numbers of the draft (draft Article 23 corresponds to Article 24 of the Law, draft Article 31 to today’s Article 32).

Explanation

Paragraph 1: first the applicable law, then formation. When the parties disagree about whether a contract exists at all, the court first assumes the contract is valid and identifies the law that would govern it under Articles 24–29 MÖHUK. That is the chosen law if there is a choice-of-law clause; otherwise the most closely connected law under Article 24(4) or one of the special rules in Articles 25–29. The court then uses that law to decide whether the offer was accepted and whether the contract is materially valid. Formation and effects of the contract thus follow the same law.

Capacity and form are outside this article. The reasoning excludes both expressly. Capacity is governed by the person’s national law (Article 9 MÖHUK), form by the law of the place where the transaction was made or the law governing the transaction itself (Article 7 MÖHUK). The Law does not define “material validity”. In the author’s assessment, defects of consent such as mistake, fraud or duress, and the illegality of the contract’s content, fall within it.

Individual terms. The article covers not only the contract as a whole but also “any of its terms”. On the wording, whether a clause in standard terms and conditions (genel işlem koşulları) became part of the contract is also decided under the law governing the contract. The Law does not say expressly whether the formation of the choice-of-law clause itself is tested under the chosen law; the wording supports this reading, but it is the author’s assessment.

Paragraph 2: conduct and silence. The exception requires three things:

The question is whether a party’s conduct (according to the reasoning, also its silence) has legal effect.
The circumstances show that it would be inequitable to decide this under the law governing the contract.
The party claims that it did not consent.

If these conditions are met, only the question whether a declaration of intent (irade beyanı) exists is decided under the law of that party’s habitual residence. Everything else stays with the law under paragraph 1. The Law does not list when a result is inequitable; the court decides this in the individual case.

Silence under Turkish law. If your habitual residence is in Turkey, paragraph 2 leads to Turkish law. Under Turkish law, too, silence is not always a rejection. Article 6 of the Turkish Code of Obligations No. 6098 (Türk Borçlar Kanunu, TBK), headed “Implied acceptance” (örtülü kabul), reads in unofficial translation:

Article 6 – Where the offeror is not obliged, by law, by the particular nature of the transaction or by the circumstances, to expect an express acceptance, the contract is deemed concluded if the offer is not rejected within a reasonable time.

Turkish original:

MADDE 6- Öneren, kanun veya işin özelliği ya da durumun gereği açık bir kabulü beklemek zorunda değilse, öneri uygun bir sürede reddedilmediği takdirde, sözleşme kurulmuş sayılır.

What this means if you live abroad

An offer you did not answer. You live in Germany or the Netherlands, and a company in Turkey sends you a written offer or order confirmation stating that Turkish law applies; you do not reply. A Turkish court first looks at Turkish law under Article 32(1), and therefore at Article 6 TBK. If the circumstances show that giving your silence an effect under Turkish law would be inequitable, and you claim that you did not consent, whether you made a declaration of intent is decided under the law of your habitual residence, for example German law. What German or Dutch law says on this is not covered here; for that part, please consult a lawyer admitted in that country.

If you do not want to accept, say so in writing. Article 6 TBK makes implied acceptance depend on the offer not being rejected “within a reasonable time”. The author recommends rejecting an offer you do not accept in a dated letter or email. Then neither the equity test in Article 32(2) nor the question of what counts as a reasonable time comes into play.

If the case is brought in Germany or the Netherlands. This article describes the view of a Turkish court. Courts in EU member states generally determine the law applicable to contracts under the Rome I Regulation. For the outcome there, consult a lawyer admitted in that country.

How the applicable law is determined is explained in Article 24 MÖHUK – Choice of law in contracts. For other contract topics, see commercial and contract law.

Frequently asked questions

Is a contract formed if I do not reply to an offer from Turkey?

That depends on the law that would govern the contract if it were valid (Article 32(1) MÖHUK). Under Turkish law, the contract is deemed concluded if no express acceptance was to be expected and the offer was not rejected within a reasonable time (Article 6 TBK). Where the circumstances justify it, the law of the habitual residence of the party denying consent applies (Article 32(2) MÖHUK).

Which law decides whether a contract is invalid?

Material validity is governed by the law applicable to the contract: the chosen law or, without a choice, the law determined under Articles 24–29 MÖHUK.

Does Article 32 also cover capacity and form?

No. Capacity is governed by Article 9 MÖHUK and form by Article 7 MÖHUK.

Sources

Questions about your case

If there is a dispute about whether a contract was concluded between you and a company or person in Turkey, for example because of an unanswered offer or an order placed only by email, and you would like to know which law a Turkish court would apply, you can book a video call, a phone call or a meeting in Düsseldorf on the appointment page, or send a written question through the contact form. Consultations are held in Turkish and cover Turkish law only (§ 206 BRAO); for the position under German or Dutch law, please consult a lawyer admitted there. Useful to have ready:

the offer, the order confirmation and all correspondence, with dates,
any standard terms and conditions and choice-of-law clause,
the country you lived in when the offer arrived.