Severability Clauses in Turkish-German Contract Law

Although nullity agreements and their variants are rarely encountered in practice, unlike in German law, they nevertheless represent a topic of particular importance within the broader system of invalidity. Despite the limited amount of research devoted to this subject in Turkish law, the issue carries significant weight. This is because the parties to a contract, to protect themselves against potential invalidity problems that may arise in the future, may prefer to adopt precautionary measures at the outset by incorporating certain clauses into their agreement. At this juncture, substitute and severability clauses, which play a vital role in determining the fate of the contract, emerge as distinct legal issues regarding their enforceability within the agreement. While Article 27/1 of the Turkish Code of Obligations establishes the general limitation on the validity of such clauses, a separate review of enforceability may nevertheless be required depending on the nature of the specific contract in which they are included.A nullity agreement, even if presumed valid, does not necessarily yield the outcome desired by the parties in every instance, as certain additional conditions may be required. With this in mind, the present study aims to shed light on the appearances and validity controls of such clauses within the context of Turkish and German contract law. Accordingly, our analysis only examines the enforceability of severability and substitute clauses either within the contract itself or in relation to standard form contracts, agreements concerning the consequences of divorce, matrimonial property agreements, contracts containing quantitative clauses, testamentary dispositions, and depending on the specific context because they are among the areas where severability clauses are most extensively debated.