Conditions of Coercion (Ikrah), Proof, and Its Effect on Contracts

1) Introduction

The Turkish Code of Obligations ("TBK"), while protecting freedom of contract, also seeks to prevent a party from being bound to a contract against their true will by considering defects of consent. In this context, Article 30 of the TBK regulates coercion as a defect of consent. Coercion is when one party forces the other into a contract by placing them under a serious and imminent threat of danger, in a situation where they would not normally declare their will.

2) Definition and legal basis of intimidation

According to Article 37 of the Turkish Code of Obligations:
"A person a serious and immediate danger /her relatives."

Therefore, the following elements are required for the existence of coercion:

1. The act of threatening or intimidating,

2. The threat poses a serious and imminent danger,

3. The threat must be unlawful , or even if lawful, it must be used excessively and unfairly.

4. This contract is being formed under threat.

3) Conditions of coercion

• Seriousness and proximity: The threat must be serious enough to frighten a reasonable person; the danger must be highly probable. For example, a threat like, "If you don't sign, I will harm you" or "I will harm your loved ones."

• Illegality: If the subject of the threat is unlawful, then coercion is already present. However, the abuse can also constitute coercion (within the framework of the principle of good faith, Article 2 of the Turkish Code of Obligations).

• A causal link between will and coercion: The person must have been compelled to enter into the contract solely because of this threat.

4) Proof

According to Article 190 of the Turkish Code of Civil Procedure, the party alleging coercion is responsible for proving it. In practice, witness statements, written threats, message records, camera recordings, post-incident reports, and the parties' conduct can be used as evidence. Proof is possible through any kind of evidence because impaired consent is a matter of public order.

5) Effect on the contract

A contract made under duress is not void by absolute nullity; cancellation . According to Article 39 of the Turkish Code of Obligations, the intimidated party must exercise this right within one year . The period begins to run from the date the coercion ceases.

• If the right of cancellation is exercised: The contract becomes null and void from the outset; the parties may reclaim what they have given according to the provisions on unjust enrichment.

• If the right of cancellation is not exercised: The contract becomes valid.

Furthermore, a party who enters into a contract under duress may also have the right to claim compensation for the other party's negligent conduct

6) The importance of the HGK-K.2021/304 Decision

The Supreme Court's General Assembly of Civil Law, in its decision dated March 17, 2021, E.2017/1280, K.2021/304, stated that;

• For a claim of intimidation to exist, the threatened danger must be serious, imminent, and of a nature that would impair the person's free will.

• Economic difficulties or ordinary commercial pressures do not constitute coercion,

• the claim of coercion can only by concrete evidence .

This decision is particularly important because it clarifies the distinction between "coercion and duress" in economic pressure and contractual relationships.

7) Conclusion

Coercion is one of the most important reasons that impair a party's free will. Within the framework of Articles 37-39 of the Turkish Code of Obligations, coercion renders the contract voidable and gives the coerced party the right to cancel it within a one-year statute of limitations. The Supreme Court's Grand Chamber decision (Decision No. 2021/304) of a serious, imminent, and concrete threat ; ordinary pressure and distress are not considered within the scope of coercion. In this respect, the decision reflects the balance between the protection of freedom of contract and freedom of will.

Asel DONGELLI