WHAT IS THE DISTINCTION BETWEEN AN OFFER AND AN INVITATION TO TREAT?

ABSTRACT

Freedom of will is a fundamental principle that enables private-law persons to establish, regulate, and terminate their legal relationships according to their own preferences. Freedom of contract constitutes one of the principal manifestations of this principle in the law of obligations, although it is subject to limitations arising from mandatory legal rules, public policy, morality, personality rights, and the protection of the weaker party. For a contract to be concluded, an offer and an acceptance must correspond to one another. Article 7 of the Turkish Code of Obligations prevents a person from being compelled to enter into an unwanted contract by providing that the unsolicited delivery of goods does not constitute an offer. Article 8, in turn, regulates the limits of non-binding offers and establishes that displaying goods with their prices or sending price lists or tariffs generally constitutes an offer. This study examines these provisions within the framework of general contract formation theory, consumer law, and electronic commerce. It also identifies differences of opinion in legal scholarship and explains the limitations of the judicial decisions that could be accessed.

Keywords: Freedom of will, freedom of contract, formation of contracts, offer, acceptance, unsolicited goods, Article 7 of the Turkish Code of Obligations, Article 8 of the Turkish Code of Obligations.

TABLE OF CONTENTS

1. Introduction
2. Freedom of Will and Freedom of Contract in Private Law
3. Formation of Contracts: Offer and Acceptance
4. Article 7 of the Turkish Code of Obligations: Unsolicited Goods
5. Article 8 of the Turkish Code of Obligations: Non-Binding Offers and Offers to the Public
6. Comparison of Articles 7 and 8 of the Turkish Code of Obligations
7. Judicial Practice and Illustrative Cases
8. Conclusion and Evaluation

1. INTRODUCTION

Contracts are among the most important instruments through which individuals regulate their economic and social relationships in private law. However, a person becomes contractually bound not merely because goods have been delivered or a price has been announced in the outside world, but because conduct exists that the legal system recognizes as a declaration of intent capable of creating a contract. The fundamental question of contract law is to determine the point at which the parties move beyond negotiations and establish a legally binding relationship.

Article 1 of the Turkish Code of Obligations (TCO) provides that a contract is formed through mutual declarations of intent that correspond to one another. Articles 7 and 8 of the Code contain specific rules explaining whether certain conduct constitutes an offer and whether an offer is binding. Article 7 does not recognize the delivery of unsolicited goods as an offer to conclude a contract. Article 8(2), by contrast, provides that displaying goods with their prices or sending tariffs and price lists generally constitutes an offer, unless the contrary is clearly and readily apparent. Although these two provisions may initially appear contradictory, they in fact protect freedom of will and transactional certainty from different perspectives.

This study first establishes the theoretical and normative foundations of freedom of contract, then explains contract formation within the framework of general principles, and finally examines Articles 7 and 8 of the TCO through practical examples. The sources used include Fatma Çelik’s 2008 master’s thesis in the Ankara University repository, the 2024 academic article by İlarslan and Esen, the Studocu material entitled “Oğuzman Notes,” explanations concerning Articles 7 and 8 of the TCO, and the legislative rationale for Article 7. The Studocu material has been treated as supplementary study notes rather than as a binding authority or an academic publication.

2. FREEDOM OF WILL AND FREEDOM OF CONTRACT IN PRIVATE LAW

2.1. Freedom of will and freedom of contract

Freedom of will refers to the principle that individuals may shape their own legal sphere through their own decisions. Within the boundaries established by the legal system, private-law persons may acquire rights, assume obligations, and establish legal relationships. Freedom of contract is the manifestation of freedom of will in the field of obligations. It encompasses not only the freedom to decide whether to enter into a contract, but also the freedom to determine with whom to contract, what the contract will contain, and under which conditions it will be concluded.

Freedom of contract ensures that legal transactions are based on the parties’ intentions. However, the parties’ intentions alone do not automatically produce every conceivable legal consequence. The legal system attaches legal consequences to declarations of intent through rules concerning interpretation, legal capacity, formal requirements, mandatory provisions, and validity conditions. Accordingly, freedom of contract is not an unlimited power independent of the legal system; it is a freedom recognized by law and subject to legally defined boundaries.

2.2. Manifestations of freedom of contract

The freedom to enter into or refrain from entering into a contract generally means that a person cannot be compelled to establish an unwanted private-law relationship. Freedom to choose the other contracting party allows a party to determine with whom it wishes to contract. Freedom to determine the content of a contract concerns the agreement of terms such as the scope of performance, price, duration, and allocation of risks. Freedom to choose the type of contract, including the freedom to conclude contracts not expressly regulated by statute, means that parties are not restricted exclusively to the contract types enumerated in legislation.

Freedom of form means that, unless a specific form is prescribed by law, a contract need not be concluded in a particular form. Under Article 12 of the TCO, contracts are not subject to formal requirements for their validity unless otherwise provided by law. Special provisions, such as the requirement of official form for the sale of immovable property, remain applicable. Freedom to amend or terminate a contract may also be exercised through mutual agreement, statutory rights of termination or rescission, or powers granted under the contract. This freedom does not mean that every contract can always be terminated unilaterally at any time.

2.3. Constitutional and statutory foundations

Article 48 of the Constitution provides that everyone has the freedom to work in any field and the freedom to conclude contracts. This provision establishes a constitutional foundation for the free conduct of economic activity and the formation of private-law relationships. Nevertheless, the constitutional principles of the social state and the provisions governing the limitation of fundamental rights demonstrate that economic freedom is not absolute in the face of the rights of others and the public interest.

Under Article 26 of the TCO, the parties may freely determine the content of a contract within the limits prescribed by law. Article 27 provides that contracts whose subject matter is impossible, or whose provisions violate mandatory legal rules, morality, public policy, or personality rights, are absolutely null and void. Thus, Article 26 establishes the foundation of contractual freedom, while Article 27 sets out its fundamental limits. Absolute nullity means that the contract does not produce valid legal effects from the outset; the possibility of partial nullity and the scope of the invalidity must be assessed separately in each case.

2.4. Limits of freedom of contract and the obligation to contract

Freedom of contract is restricted by mandatory statutory provisions, public policy, morality, personality rights, impossibility, and the principle of good faith. For example, a provision in an employment contract that eliminates an employee’s statutory minimum rights does not become valid merely because the parties have agreed to it. Similarly, a contract that disproportionately restricts personality rights or pursues an unlawful purpose may be assessed under Article 27 of the TCO.

In certain circumstances, freedom may be limited by an obligation to contract. Such an obligation may arise from legislation, a preliminary contract, the nature of a regulated service, or the prohibition against abuse of a dominant position under competition law. However, it cannot be asserted that a general obligation to contract exists in every situation and applies to everyone. The legal basis and scope of any such obligation must be determined by reference to the specific applicable rule.

2.5. Economic inequality and the protection of the weaker party

The fact that parties formally enjoy freedom of contract does not mean that their bargaining power is equal in practice. Standard contractual terms prepared in advance, consumers’ inability to negotiate contractual conditions, or limited access to essential services may affect the practical exercise of contractual freedom. Accordingly, the legal system seeks to protect weaker parties through mechanisms such as consumer law and the review of general terms and conditions, without abolishing freedom of contract.

The provisions of Law No. 6502 on the Protection of Consumers concerning consumer transactions and the regime governing general terms and conditions under Articles 20–25 of the TCO are examples of this approach. The presumption established by Article 8(2) may also help consumers understand a seller’s intentions when goods are displayed with their prices. However, this provision does not automatically displace all the requirements of special consumer legislation.

3. FORMATION OF CONTRACTS: OFFER AND ACCEPTANCE

3.1. Elements of a contract and mutual assent

Under Article 1 of the TCO, a contract is formed when the parties make mutual declarations of intent that correspond to one another. Such declarations may be express or implied. Accordingly, a contract generally requires legally meaningful declarations of intent by at least two parties that correspond to one another. The essential elements of a contract vary according to its type. In a contract of sale, the subject matter of the sale and the price are fundamental elements on which the parties must agree. Under Article 2 of the TCO, if the parties have agreed on the essential terms, the absence of agreement on secondary terms does not prevent the formation of the contract; any dispute concerning those secondary terms may be resolved by the judge in light of the circumstances of the transaction.

Contract formation is assessed primarily on the basis of declarations of intent expressed externally rather than the parties’ internal thoughts. Nevertheless, the meaning of a declaration is not determined solely by its wording. The circumstances of the case, previous negotiations, commercial practices, and the principle of good faith must also be taken into account. Under the reliance theory, particular importance is attached to the meaning that a reasonable and honest recipient would attribute to the declaration.

3.2. The distinction between an offer and an invitation to treat

An offer is a declaration of intent sufficiently definite that acceptance by the other party will bring the contract into existence. As a rule, an offer contains the essential terms of the contract and demonstrates the offeror’s intention to be bound upon acceptance. An invitation to treat, by contrast, invites another person to make an offer or to enter into negotiations, without the person making the declaration intending that acceptance alone should conclude the contract.

For example, a seller’s definitive proposal to sell a particular computer for TRY 20,000 may constitute an offer. By contrast, if a company requests price quotations from three suppliers and reserves the right to select one of the quotations or reject all of them, the request generally constitutes an invitation to treat. The practical consequence of the distinction is that, if an offer is valid and binding, a corresponding acceptance forms the contract; a response to an invitation to treat, however, will often constitute a new offer.

3.3. Acceptance and counter-offers

Acceptance is a declaration of intent that corresponds to the offer. If the acceptance changes the essential terms of the offer, it generally constitutes a new offer rather than an acceptance. For example, a response stating, “I accept if the price is TRY 18,000,” to an offer to sell for TRY 20,000 does not accept the original offer as presented; it constitutes a counter-offer. A contract is formed if the original offeror accepts that counter-offer.

Acceptance may be expressed explicitly, orally or in writing, or it may be inferred from conduct. Article 6 of the TCO provides that, where an express acceptance is not expected in light of the law, the nature of the transaction, or the circumstances, a contract may be formed if the offer is not rejected within an appropriate period. This provision does not establish a general rule that silence constitutes acceptance; the conditions specified in the article must be satisfied.

3.4. Contracts between parties present and parties absent

Article 4 of the TCO provides that, where an offer is made to a person who is present and no time limit for acceptance is specified, the offeror is not bound if the offer is not accepted immediately. Presence is not limited to the parties being physically located in the same place; the decisive consideration is whether the recipient can learn of and respond to the offer within the communication setting in which it is made. A telephone conversation is generally an example of communication between parties present.

Under Article 5, an offer made to a person who is absent without specifying a period for acceptance binds the offeror until the time at which a response, sent in a timely and proper manner, could reasonably be expected to arrive. The time required for transmission, consideration, and response must be determined in light of the circumstances of the case. In relation to email and electronic platforms, the nature of the communication, the parties’ use of the relevant system, and any special legislation must also be considered.

3.5. Binding effect, withdrawal, and termination of an offer

Under Article 3 of the TCO, an offeror who specifies a period for acceptance remains bound by the offer during that period. If acceptance does not arrive within the specified period, the offeror is released from that commitment. Articles 4 and 5 apply to offers made without a specified acceptance period, depending on whether the offer is made to a person who is present or absent. Article 10 regulates withdrawal and provides that an offer may be withdrawn if the withdrawal reaches the recipient before or at the same time as the offer, or, even if it arrives later, if the recipient learns of the withdrawal before learning of the offer.

The binding effect of an offer ends if it is rejected or if the acceptance period expires. Where acceptance arrives late, the special rules under Article 5 and the principle of good faith must be taken into account. The commencement of negotiations does not, by itself, mean that a contract has been concluded. However, conduct contrary to good faith during negotiations may, where the relevant conditions are met, give rise to pre-contractual liability (culpa in contrahendo).

3.6. Electronic commerce and pre-contractual conduct

In transactions conducted through websites, mobile applications, and electronic marketplaces, the product page, the order button, the automated message confirming receipt of an order, and the seller’s confirmation of the order must be distinguished from one another. A message confirming that an order has been received may, depending on its content and the system’s design, constitute merely a technical acknowledgment of receipt; it does not necessarily amount to acceptance in every case. The rules governing information requirements and the ordering process under electronic commerce legislation must be considered together with the general provisions of the TCO.

In particular, whether displaying a physical product with a photograph and price on a website constitutes an offer directly under Article 8(2) is debated in legal scholarship. One view interprets the expression “displaying goods” narrowly and requires the goods themselves to be displayed; under this approach, merely displaying a photograph of the product may be regarded as an invitation to treat. Another approach may support a broader interpretation in light of the operation of electronic commerce and consumer reliance. Accordingly, it should not be assumed that every product listing on a website automatically constitutes a binding offer. The ordering process, stock disclosures, sales conditions, and special legislation must be examined together.

4. ARTICLE 7 OF THE TURKISH CODE OF OBLIGATIONS: UNSOLICITED GOODS

4.1. Current provision and legislative purpose

The current text of Article 7 of the TCO reads as follows: “The sending of something that has not been ordered does not constitute an offer. The person receiving such an item is under no obligation to return or retain it.” The provision is a new regulation that was not included in the same form in the former Code of Obligations No. 818. The legislature seeks to prevent a person from being compelled to enter into a contract through the delivery of goods that were never ordered, as well as to prevent silence or passive conduct from being interpreted as acceptance.

The provision is based on freedom of will and the protection of consumers. The arrival of goods at a person’s address does not, by itself, mean that the person has agreed to purchase them. An alternative interpretation would allow the sender to impose contractual obligations on the recipient through unilateral conduct, contrary to the principle that contracts are formed through mutual declarations of intent.

4.2. The recipient’s obligations and the legal nature of the delivery

Article 7 expressly provides that the unsolicited item does not constitute an offer and that the recipient is under no obligation to return or retain it. Consequently, the recipient does not incur an obligation to pay merely by accepting delivery, remaining silent, or failing to return the item. The sender cannot replace the recipient’s declaration of acceptance with a unilateral delivery.

For Article 7 to apply, the item must genuinely be unsolicited. If there was a prior order, a valid subscription, an automatic renewal arrangement, or another contractual arrangement between the parties, the legal nature of the delivery must be examined within the framework of that relationship. The scope and quantity of the order must be compared with the goods delivered, and the existence of any prior declaration of intent by the recipient must be established.

The current text of Article 7 consists of two sentences. Although the legislative rationale refers to an additional paragraph requiring the recipient to notify the sender within a reasonable period where it is evident that an item was sent by mistake, that sentence was not incorporated into the enacted text of the provision. It would therefore be incorrect to present the statement in the legislative rationale as an express statutory obligation under the current Article 7. Nevertheless, where an item has clearly been delivered to the wrong recipient by mistake, the principle of good faith under Article 2 of the Turkish Civil Code and other applicable provisions may be relevant, depending on the circumstances. Any resulting obligation must be justified by reference to the specific case.

4.3. Unjust enrichment, mistaken delivery, and consumption

Article 7 of the TCO must not be confused with the provisions on unjust enrichment. The provision prevents unsolicited deliveries from being treated as offers and prevents the recipient from being burdened with an obligation to return or retain the goods. However, the circumstances may give rise to separate issues where the recipient clearly knows that the goods belong to someone else, where the goods were delivered to the wrong address, where the recipient knowingly appropriates the goods, or where another legal relationship exists. Articles 77 et seq. of the TCO concerning unjust enrichment do not automatically create a payment obligation for every unsolicited item; the legal basis of the enrichment and the statutory requirements must be examined separately.

For example, if a consumer receives a product that they never ordered and is subsequently issued an invoice, no sales contract is formed merely because the product was delivered and an invoice was issued. The consumer may argue that no contract was concluded. By contrast, if an online retailer mistakenly delivers a second product alongside an item that was ordered, the fact that the first product was ordered does not establish that the second product was also ordered. The legal basis for sending the second product must be determined separately. Even if the recipient uses the second product, it cannot automatically be concluded that this conduct constitutes acceptance of a sales contract.

4.4. Analysis of illustrative cases

Example 1 — Delivery of a paid product without an order: The company’s unilateral delivery does not constitute an offer. The recipient does not automatically incur a contractual obligation or a debt to pay the price by retaining the item or failing to return it. If the sender claims that a contract was concluded, it must establish a separate order or declaration of acceptance supporting that claim.

Example 2 — Accidental delivery of a second product: The existence of a contract for the first product does not demonstrate that the second product was also ordered. The delivery of the second product must be assessed in light of whether it was genuinely unsolicited within the meaning of Article 7 and the terms of the parties’ existing contract. Where the mistake is obvious, the principle of good faith may be practically significant. However, the notification statement mentioned in the legislative rationale, but omitted from the enacted provision, must not be presented as part of the current text of Article 7.

Example 3 — Free promotional product: If a product is genuinely sent for promotional purposes without requiring any counter-performance from the recipient, no obligation to pay arises. The sender cannot subsequently impose a contract unilaterally by demanding payment. The terms of the promotion and the existence of any separately accepted campaign or subscription arrangement may, however, lead to a different conclusion.

Example 4 — Use of the product by the recipient: The purpose of Article 7 is to prevent the use of unsolicited goods from automatically creating a contract through implied acceptance. Nevertheless, separate questions may arise concerning the recipient’s clear knowledge that the goods belong to the sender, the nature of the goods, the meaning of the recipient’s conduct under the principle of good faith, and the existence of another legal basis. A payment obligation cannot be inferred from use alone in every case; equally, it cannot be assumed in advance that no other claim can arise in any circumstances.

5. ARTICLE 8 OF THE TURKISH CODE OF OBLIGATIONS: NON-BINDING OFFERS AND OFFERS TO THE PUBLIC

5.1. Structure of the provision and the first paragraph

The heading of Article 8 of the TCO is “Non-binding offers and offers to the public.” The first paragraph provides that an offer does not bind the offeror where the offeror expressly reserves the right not to be bound or where the nature of the transaction or the circumstances indicate that the offeror does not intend to be bound. This provision demonstrates that not every declaration that resembles an offer is necessarily binding; the intention to be bound must be assessed in light of the content of the declaration and its context.

Expressions such as “Our quotation is non-binding” or “Subject to stock availability and final approval” may indicate, in the circumstances of the case, that the offeror does not intend to be bound. However, it cannot be said that a standard phrase will produce the same result in every situation; the clarity and comprehensibility of the statement and its suitability to the context of the transaction must be examined. A party’s subsequent attempt to assign a different meaning to its own declaration is not, by itself, decisive.

5.2. Displaying goods with their prices: Article 8(2)

Under Article 8(2) of the TCO, displaying goods with their prices or sending tariffs, price lists, or similar materials constitutes an offer unless the contrary is clearly and readily apparent. The provision establishes a presumption that the declaration constitutes an offer addressed to the public. In this respect, it differs from Article 7: the delivery of unsolicited goods cannot reasonably be treated as establishing the recipient’s acceptance, whereas goods displayed with their prices may, under certain conditions, be regarded as an offer made by a seller prepared to conclude a sale.

The typical example is a product displayed for sale on a shelf or in a shop window with a price label attached. However, the application of Article 8(2) requires consideration not only of whether the goods are displayed and a price is indicated, but also of whether it is clear and readily apparent from the circumstances that no binding offer is intended. A product displayed solely for decorative purposes, for example, may be treated differently if it is clearly stated that the product is not for sale.

The provision also covers the sending of tariffs, price lists, and similar materials. A detailed price list sent to a customer may therefore constitute an offer unless the contrary is apparent. Nevertheless, a “request for a price quotation” and the “sending of a price list” are not the same thing. A business requesting price quotations from suppliers is generally inviting them to make offers; a supplier’s quotation specifying particular goods and a price may constitute an offer if it demonstrates an intention to be bound.

5.3. Websites, catalogues, and electronic marketplaces

The application of Article 8(2) to online advertisements is debated in legal scholarship. According to the narrower interpretation, the expression “displaying goods” requires the goods themselves to be displayed; showing a photograph, video, or model does not amount directly to displaying the goods. Under this approach, displaying a photograph and price of a physical product on a website will often constitute an invitation to treat, while the consumer’s order may constitute an offer. The seller’s confirmation or dispatch of the product may then amount to acceptance.

A broader interpretation takes account of the ordinary operation of digital commerce and consumer reliance and supports the possibility that a product page may constitute a binding offer. In particular, the design of platforms stating that a contract is formed upon completion of an order without requiring any separate confirmation by the seller may affect the assessment. Nevertheless, a single conclusion should not be adopted for every webpage. The terms displayed on the product page, stock information, the method of order confirmation, the content of automated emails, and electronic commerce legislation must be considered together.

The same caution applies to service listings. Services such as concert tickets, accommodation, and consultancy differ in nature from the display of tangible goods, and the direct application of Article 8(2) may be debatable. Whether the listing contains the essential terms of the contract and demonstrates an intention to be bound must be assessed under the general rules.

5.4. Incorrect prices, stock availability, and sales conditions

The appearance of an incorrect price on a product or website does not necessarily mean that the seller must sell the product at that price in every case. First, it must be determined whether the price statement constitutes an offer. The interpretation of the declaration, the applicability of mistake provisions, and the effect of consumer legislation must then be examined. For example, displaying a product of substantial market value at an obviously symbolic price may be relevant to determining whether a reasonable recipient would understand the statement as a genuine intention to sell. By contrast, an ordinary discount or a small price difference does not, by itself, establish that the mistake was obvious.

Stock depletion and the removal of a product from sale must also be assessed according to the circumstances. If the seller is bound by an express offer, an inability to manage stock does not always automatically eliminate that binding effect. The result may differ, however, if the offer expressly states that it is subject to stock availability or if that limitation is readily apparent from the nature of the transaction. Rules under consumer legislation concerning refusal to sell and unfair commercial practices must be considered alongside the provisions of the TCO.

5.5. Evaluation of illustrative cases

Example 1 — A physical product bearing a price label: If a product is displayed in a shop for sale and its price is indicated, the presumption under Article 8(2) applies unless the contrary is clearly and readily apparent. The customer’s corresponding acceptance to purchase the product may form the contract. However, it must also be examined whether the sale is subject to checkout procedures, payment, or special conditions.

Example 2 — A product listed on a website with a price: Whether the product page alone constitutes an offer is a debated issue. The platform’s terms, the meaning of the order button, and the seller’s confirmation mechanism are decisive. If the website states that “receipt of your order does not constitute acceptance of the contract; a separate confirmation will be sent,” that statement is relevant to determining the intention to be bound.

Example 3 — Sending a price list to a customer: Article 8(2) generally treats the sending of a tariff or price list as an offer. However, if the document clearly states that it is provided solely for informational purposes and that quantities and conditions will be negotiated later, it may be classified as an invitation to treat.

Example 4 — Incorrect pricing: The first step is to determine whether the declaration constitutes an offer and to establish its content. The next step is to examine whether the mistake is fundamental, whether the other party knew or ought to have known of it, and whether the provisions of the TCO concerning mistake are applicable. The publication of an incorrect price does not, by itself, establish that a contract must be concluded at that price.

Example 5 — Sales subject to specific conditions: Conditions such as “members only,” “while stocks last,” or “subject to separate approval” may determine the scope or binding effect of an offer if they are clear and understandable. The effect of conditions raised only after the fact and not disclosed in advance must be assessed separately in light of the principle of good faith and consumer legislation.

6. COMPARISON OF ARTICLES 7 AND 8 OF THE TURKISH CODE OF OBLIGATIONS

Articles 7 and 8 of the TCO are complementary rules governing the characterization of declarations of intent in contract formation. Article 7 protects the recipient against the imposition of contractual obligations through the sender’s unilateral conduct. Article 8(2), by contrast, establishes a presumption that displaying goods with their prices or sending a price list constitutes an offer unless the contrary is clearly apparent.

Criterion	Article 7 of the TCO	Article 8(1) of the TCO	Article 8(2) of the TCO
Purpose	Preventing unwanted contracts	Distinguishing offers made without an intention to be bound	Establishing a presumption of an offer to the public
Legal characterization	Delivery does not constitute an offer	An offer does not bind the offeror if there is no intention to be bound	An offer is presumed unless the contrary is clearly apparent
Typical example	Unordered goods or a condition attached to a quotation	A statement that negotiations are non-binding	Goods displayed with price labels or a price list
Is it an offer?	No	It may not be binding, depending on the circumstances	Generally yes
Position of the recipient	No obligation to return or retain the goods	Acceptance alone may not conclude the contract	Corresponding acceptance may form the contract
Main risk	Creating obligations through unilateral delivery	Mistaking negotiations for a binding offer	Assuming that every advertisement is binding
Practical issue	Unordered products	Conditions attached to quotations	Stock availability and incorrect pricing

The fundamental distinction between the two provisions concerns the meaning of the conduct in terms of the intention to be bound. The delivery of unsolicited goods does not establish the recipient’s intention and therefore does not constitute an offer. By contrast, displaying goods with their prices is generally treated as an expression of willingness to sell. Nevertheless, the presumption under Article 8(2) is not absolute; clearly apparent contrary circumstances, the nature of the contract, and special legislation may affect the outcome.

7. JUDICIAL PRACTICE AND ILLUSTRATIVE CASES

7.1. Evaluation of accessible judicial decisions

The research identified certain first-instance court decisions discussing the distinction between an offer and an invitation to treat. However, three to five Court of Cassation decisions directly resolving disputes concerning the delivery of unsolicited goods under Article 7 or the display of goods with price labels under Article 8(2), with full texts and case references that could be reliably verified, could not be accessed. Accordingly, no unverified docket numbers, decision numbers, or judicial quotations have been used. The decisions discussed below are presented solely as examples of accessible local court practice and not as Court of Cassation precedents.

7.2. Istanbul 12th Commercial Court of First Instance, Case No. 2020/632 E., Decision No. 2024/516 K.

In the accessible record of this decision, the court discusses whether declarations concerning a commercial campaign or sales commitment constitute an offer or an invitation to treat. The decision refers to the general principles that an offer must contain the essential elements of the contract and demonstrate an intention to be bound, whereas a declaration intended merely to initiate negotiations may constitute an invitation to treat. This approach illustrates the importance of general offer theory in circumstances where the specific presumption under Article 8(2) does not apply.

7.3. Istanbul 2nd Commercial Court of First Instance, Case No. 2025/689 E., Decision No. 2026/255 K.

In the accessible text of this decision, requesting market research and price quotations from companies for renovation and decoration work is treated as an invitation to treat. The claimant’s request for quotations, in light of the nature of the work and the circumstances, does not demonstrate an intention to be bound. Accordingly, it does not follow that the quotations received from the companies were automatically accepted. The decision provides a practical illustration of the distinction between a request for a quotation and an offer.

8. CONCLUSION AND EVALUATION

Freedom of will forms the foundation upon which individuals may establish legal relationships according to their own preferences. Freedom of contract is the manifestation of this principle in the law of obligations. However, the mere existence of conduct is insufficient for a contract-forming intention to produce legal consequences. Whether conduct qualifies as an offer or acceptance must be determined by considering the essential terms of the contract, the intention to be bound, the reliance created in the recipient, and the circumstances of the case.

Article 7 of the TCO prevents a person from automatically becoming a party to a contract merely because goods have been sent to them. The delivery of unsolicited goods does not constitute an offer, and the recipient does not incur a payment obligation merely by accepting delivery or remaining silent. Nevertheless, the provision should not be interpreted as granting general immunity from all possible claims arising from mistaken deliveries, clear knowledge that goods belong to another person, or the existence of another legal relationship. Any other potential claim must be examined independently in terms of its legal basis and applicable requirements.

Article 8(1) limits the binding effect of declarations that do not demonstrate an intention to be bound, while Article 8(2) establishes a presumption that displaying goods with their prices or sending price lists constitutes an offer unless the contrary is clearly apparent. This arrangement enhances transactional certainty. However, particularly in online sales, no automatic conclusion should be drawn regarding the legal nature of product photographs, prices, stock information, or order confirmations. The structure of electronic commerce and consumer legislation must be considered together.

In conclusion, Articles 7 and 8 protect freedom of will in two complementary ways: Article 7 prevents unwanted contracts from being formed through unilateral delivery, while Article 8 increases predictability in the contract formation process by ensuring that certain external manifestations are understood as offers. In practice, the decisive factor is not the label attached to a declaration of intent, but its content and context. Legal analysis must distinguish between the statutory text and its legislative rationale, academic opinions and binding judicial decisions, and the general provisions of the law of obligations and the legislation governing consumer protection and electronic commerce, while assessing them together.