NEWSLETTER-2020-metin

337 LABOR LAW principle. In the Turkish legal system, the principle of free- dom of contract is not absolute; it is subject to limitations. The parties may freely determine the content of a contract within the limits stipulated by law. Contracts contrary to the mandatory provisions of the law are null and void. • However, Article 27/II of the Law of Obligations is as fol- lows: “ The null and void part of the terms that a contract include does not affect the validity of other terms. Nonethe - less, if it is clearly understood that without such terms the contract would not have been concluded, the entire contract becomes null and void . ” Within the framework of this Artic- le, it is possible to declare a part of the contract as null and void while other parts are valid, according to the principle of maintaining the contracts and their validity. • In the event that the employment contract is concluded for a certain period of time and the “penalty clause related to unjust termination prior to the anticipated end date” is set forth in the contract, even if the contract is considered as an indefinite-term employment contract due to the lack of objective conditions, pursuant to Article 27 / II of the Law of Obligations, partial invalidity sanctions should be applied, and the will of the parties should be given superiority, and provision about the “penalty clause regarding unjust termi- nation of the contracts prior to the anticipated end date,” should be considered as valid for the anticipated period. • The employer and the employee try to guarantee that the contract will not be terminated for a certain period of time. Therefore, the parties include provisions regarding the penalty clause in order to use it as a means of pressure to ensure that they fulfill their commitments. Defining a fixed- term employment contract as an indefinite-term contract due to the lack of objective conditions, should not result in the invalidity of the will of the parties in relation to the penalty clause.