NEWSLETTER-2017

277 LAW OF OBLIGATIONS constitutes a special provision with respect to the other provisions of law: “It may be inferred that the reasoning underlying this provi- sion is to give the judge the authority to limit the non-competition clause at the legal and appropriate level by way of considering the equitable principles pursuant to Article 4 of the Civil Code, in the event that the non-competition agreement exceeds the limitations that are stipulated in the TCO. The sanction of nullity shall not be applied, as Article 445/2 of the TCO is deemed as a special norm with respect to Articles 27/1 of the TCO and 23/2 of the Civil Code. Considering these explanations, although the first instance court accepted that the sanction for the expression of “Whole World” in the agreement concluded between the parties was a nullity, Articles 445/1 and 2 of the TCO gives the judge the authority to take the measures to sustain the agreement against the excessive clauses and to interfere in the agreement. In this case, as the will of parties corresponds, there is no situation of nullity, but an invalidity that can be eliminated by the intervention of the judge.” 9 The 11th Civil Chamber of the Court of Cassation, in another decision along the same line, emphasizes that Article 445/1 of the TCO stipulates locus and time limitation for non-competition clauses, and that pursuant to the second paragraph of this provision, the judge can limit the non-competition clauses in respect of scope and time in the event that they contain excessive limitations 10 . The 11th Civil Chamber, considering the fact that the employee has commenced work with another competitor enterprise, which operates in the same city as the employer, holds that alleging the nullity of the non-competition clauses, because the latter addresses a very broad geographical area, would be inconsistent with Article 2 of the Civil Code. In other words, in this case, the Court of Cassation acknowledges that the judge may use his/her authority to limit the non-competition clause under Article 9 Court of Cassation 11. HD, T. 16.6.2016, E. 2015/12450, K. 2016/6672, http:// www.kazanci.com.tr/ (Access Date: 23.11.2017). 10 Court of Cassation 11. HD. , T. 22.2.2016, E. 2015/7354, K. 2016/1838, https:// www.lexpera.com.tr (Access Date: 24.11.2017).