Abstract:

Interpretation of the contracts which is an important field in the law of contracts aims to determine the true will of the parties. Our study that deals with how this determination should be carried out intends to find answers to two questions. First of these questions is whether it is meant internal will with the term true will. The second question is whether two ways of interpretation (subjective-objective) that are against each other and that have priority-posteriority relationship between each other are in question. In the context of these questions the present author is in the opinion that the contract is drawn up based on the true will of the parties if the parties actually understand each other correctly and the interpretation of the contract will not be necessary. But if the parties do not actually understand each other correctly, in other words do not know the true will of each other, in this case it will be interpreted from the point of view of a reasonable and honest third person according to the principle of trust. But trust principle will not be applicable in two situations. First of these is the situation in which the counterparty is aware of the true will of the declarant. More precisely it is the situation in which the counterparty grounds on the objective interpretation since it is in the counterparty’s favor although the counterparty knows the true will of the declarant. In such case, the declarant will have to prove that the counterparty knows the declarant's true will. Because if true, in other words actual, will of the parties can be proved, interpretation will not be necessary and the contract will have been drawn up according to the true will of the parties. In the second situation the principle of trust will not be applicable if the counterpart would have known or would have been able to know the true will of the declarant whether the counterpart had shown due care and diligence although the counterpart does not know the true will of the declarant when all conditions of the concrete case are taken into consideration. In this case, again the declarant will have to prove that the counterparty would have known or would have been able to know the true will of the declarant whether the counterparty had shown due care and diligence. But if the declarant cannot prove these, the fictitious will of the parties will be tried to find according to objective interpretation in line of the trust principle. Thus, we believe that the assumed difference between the true will and the fictitious will be determined according to the trust principle or the assumed difference between objective and subjective interpretation are degraded to which explanations and situations can be proved. In this way, we believe that which explanations and situations are proved and can be proved is determinant rather than the method of interpretation.

Keywords: