NEWSLETTER-2020-metin

336 NEWSLETTER 2020 ment contract, the termination right (with notice periods) of the par- ties in the employment contracts could be limited by a penalty clause inserted into contracts in a manner that does not violate the essence of the rights 6 . However, the validity of such penalty clauses depends on the absence of justified reasons for termination of an employment contract and the principle of reciprocity. It is also possible to add pro- visions to this extent to minimum-term employment contracts. In this context, the General Assembly, in its decision dated 08.03.2019, numbered 2017/10 E and 2019/1 K. examined the validity of penalty clauses entailed to unjust termination prior to the antici- pated term in the employment contracts concluded by the parties for a fixed term, but which are accepted as indefinite-term contracts, due to the lack of objective conditions stipulated in Article 11 of the Labor Law, and ruled that the penalty clause is valid, limited to the period in question. Therefore, the doctrinal discussion 7 was over, and the differences of opinion of the Chambers of the Court of Appeals were eliminated. General Assembly’s Reasoning In its reasoning, the General Assembly, firstly, indicated that the principle of having an indefinite-term employment contract, whilst having an indefinite-term contract is exceptional, due to the principle of protection of the employee. However, the General Assembly point- ed out that the acceptance of the contract for an indefinite term is a determination regarding the qualification of the contract; meanwhile, it should be separately assessed whether the acceptance of the contract for an indefinite term results in invalidity of the penalty clause. In the justification of the decision the following points are also noted: • The basic principle prevalent in the Turkish Law of Ob- ligations is the principle of freedom of will. The natural consequence of freedom of will is the “freedom of contract ” 6 Süzek , p. 717. 7 For the opinion stating the validity of the penaltyclause please see: 22nd Chamber of the Court of Cassations, E. 2015/18939, K. 2016/26066, 29.11.2016; for the opinion stating the invalidity of the penalty clause please see: 9th Chamber of the Court of Cassation, E. 1993/15152, K. 1993/16726, 17.11.1993.