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LAW OF OBLIGATIONS
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The Concept of “General Transaction Terms” and its
Implications under New Code of Obligations
8
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Att. Berna Aşık Zibel
One of the significant issues introduced by the new Code of
Obligations, numbered 6098 (“NCO”) is the concept of “General
Transaction Terms (“GTT”)” which was not included in the current
Code of Obligations (“CCO”), and reflects the concept of “Terms and
Conditions” widely incorporated in standard form contracts in English
and American Law
The CCO based on “freedom of contract” principle and concept of
“individual contract” drafted as a result of mutual negotiations of the
parties. Individual contract is the contract in which the declarations of
intent such as offer, counter offer, acceptance are achieved as a result
of reciprocal negotiations. However, in present-day, enterprises such as
finance companies, insurance companies or companies that offers goods
and services to consumers use standard form contracts –also known as
adhesion contracts- which are unilaterally and abstractly prepared for
their later utilization in more than one transaction with respect to services
rendered by them.
GTT is a contractual term inserted in these contracts. They also
referred to as “adhesion contracts” or “standard form contracts”.
As to GTT, there is imbalanced relationship between the parties in
favor of one party over the other during the preparation of the agreement;
the terms of the agreement are not negotiated. Mostly, the prices are set
forth based on the tariffs. In such case, the party, who will enter into
an agreement with the related enterprise, has no opportunity other than
accepting or rejecting the text which was prepared unilaterally.
Regulations with respect to GTT may be considered as statutory
intervention to the principle of freedom of contract where unfair
contractual relationship between the contracting parties and the fairness in
the contract is mislaid. In actual case, the parties are usually composed of
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Article of July 2011