The preliminary sales contract of immovable property is one of the most debated contractual mechanisms in Turkish law, both in legal scholarship and practice. Due to the land registry offices’ refusal to execute conditional or term-bound sales contracts, parties frequently resort to notaries to conclude preliminary sales contracts. One of the most significant issues arising in these contracts is the impossibility of the subject matter and its legal consequences. The principle of freedom of contract, derived from the autonomy of will, grants parties the right to conclude contracts, determine their content, and terminate them. However, pursuant to Article 27 of the Turkish Code of Obligations, impossibility constitutes a limitation on contractual freedom, along with immorality, mandatory provisions, public order, and violation of personal rights. The absence of a statutory definition of impossibility has led to divergent views in legal doctrine. Therefore, determining in which circumstances the subject matter of a preliminary sales contract of immovable property becomes impossible, as well as examining the legal consequences of such impossibility, is of critical importance. This study analyzes the concept of impossibility within the context of preliminary sales contracts under Turkish law, addressing doctrinal perspectives and practical implications in detail.
Preliminary Sales Contract İmpossibility Freedom Of Contract Absolite Nullity Impossibility of Performance
1. Introduction
The preliminary sales contract of immovable property has long been one of the most controversial instruments in Turkish private law. Positioned between contract law and property law, it is frequently used by parties who seek to secure their agreement before a notary, as conditional or term-bound contracts cannot be executed directly at land registry offices. While such agreements are highly practical, especially in the real estate sector, they also generate significant legal questions when the subject matter becomes impossible to perform.
The concept of “impossibility” represents a limitation to contractual freedom. Although parties are free under the Turkish Code of Obligations to design contracts, impossibility restricts this freedom by invalidating contracts whose subject cannot be performed. Yet, the TBK does not provide a precise statutory definition of impossibility, leaving doctrine and judicial practice to fill the gap. The present study investigates this lacuna, analyzing the types of impossibility, their implications, and their specific consequences for preliminary sales contracts of immovable property.
2. Methodology
The study employs a doctrinal legal research method, based primarily on statutory analysis, comparative evaluation, and case law interpretation. First, the relevant provisions of the TBK (Arts. 27, 29, 112, 136, 137) and the Land Registry Law (Art. 26) are examined. Second, doctrinal debates in Turkish scholarship are reviewed, with special attention given to the classification of impossibility as factual, legal, logical, initial, supervening, permanent, temporary, partial, total, subjective, or objective. Third, judicial practice is analyzed, focusing on decisions of the Court of Cassation where preliminary sales contracts became unenforceable due to destruction, expropriation, or conflicting transfers.
The analysis follows a problem-oriented approach: it seeks to answer what happens when performance becomes impossible in preliminary sales contracts and whether the law adequately balances the interests of the promisor and the promisee. Comparative perspectives, especially from European private law, are also considered to assess whether Turkish law aligns with or diverges from broader international trends.
3. Findings
3.1 The Nature of Preliminary Sales Contracts
A preliminary sales contract is a preparatory legal instrument obligating parties to conclude a definitive sales contract in the future. It does not transfer ownership but establishes reciprocal duties: the seller promises to sell, and the buyer promises to purchase. Under TBK Article 29, such contracts are valid only if they follow the form of the final contract, meaning they must be executed before a notary. Additionally, if annotated in the land registry (Tapu Kanunu Art. 26), they provide protection against third parties for five years.
3.2 Types of Impossibility
The study identifies several key forms of impossibility in the context of preliminary sales:
• Initial impossibility: The subject matter is already impossible at the time of contract (e.g., the property is destroyed). Such contracts are void ab initio.
• Supervening impossibility: The impossibility arises later (e.g., expropriation, zoning changes, fire). If the debtor is not at fault, obligations are extinguished; if at fault, liability for damages follows.
• Subjective impossibility: Only the promisor cannot perform, although others could. Here, liability under TBK Art. 112 applies.
• Temporary impossibility: If performance is merely delayed by administrative or legal obstacles, the debtor may fall into default rather than being discharged, unless a fixed essential deadline exists.
3.3 Case Examples
Practical cases illustrate these distinctions:
• If the promisor transfers the property to a third party without registry annotation, the promisee may only seek damages. If annotated, the promisee may demand cancellation of the subsequent transfer.
• Contracts involving joint ownership require all co-owners’ consent. Lack of consent may lead to impossibility, but death of co-owners does not extinguish obligations since heirs succeed.
• Administrative measures like expropriation or rezoning may create legal impossibility, releasing the debtor without fault.
• Natural disasters such as earthquakes or fires create factual impossibility, extinguishing obligations.
3.4 Doctrinal Debates
Turkish doctrine diverges on whether impossibility should be construed broadly or narrowly. Some scholars emphasize that legal prohibitions amount to impossibility, while others argue that these should be treated as suspensions until the obstacle is removed. Another doctrinal debate concerns the distinction between impossibility and positive breach: if a debtor deliberately undermines obligations (e.g., signing another preliminary contract), this is not impossibility but a breach, requiring damages.
3.5 Legal Consequences
The consequences of impossibility are context-dependent:
• Contracts with initial impossibility are void.
• In supervening impossibility without fault, the debtor is discharged, and counter-performances must be returned.
• Where fault exists, damages are payable to cover the creditor’s positive interest.
• Substitute value may be claimed in expropriation or compensation cases.
• Annotation in the land registry empowers creditors to annul later transfers and demand registration in their name.
4. Conclusion and Discussion
The research demonstrates that impossibility in preliminary sales contracts raises fundamental challenges in Turkish private law. The TBK provides tools, but their fragmented application by courts leads to inconsistencies. The lack of a statutory definition forces heavy reliance on doctrinal interpretation, producing divergent approaches.
The study argues that impossibility should be interpreted restrictively to preserve contractual security. Overly broad recognition of impossibility risks weakening trust in preliminary sales contracts, which are vital in practice. Courts should distinguish carefully between impossibility, breach, and default, tailoring remedies accordingly. Where feasible, contracts should be preserved, with nullity or termination as a last resort. Furthermore, mechanisms like registry annotation and substitute value claims should be leveraged to safeguard promisees.
In conclusion, impossibility in preliminary sales contracts reflects the tension between contractual freedom and legal certainty. By adopting a more nuanced and proportionate approach, Turkish law can provide a balanced framework that protects both promisors and promisees, aligns with comparative insights, and enhances the stability of real estate transactions.
