e-book2011

NEWSLETTER 2011

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one private individual and large organization do not negotiate equitably,

because one of the parties has the power to determine the terms of the

contract in favor of itself.

Before NCO

Imbalanced relationship under GTT generates a need for upholding

legal protection for the party who enter into contract for the acquiring

the services or the products without bargaining opportunity. This need

initially draws attention for unconscionable consumer credit contracts in

which one party has superior bargaining power over other contracting

party. Arising thereof, GTT is mainly regulated with respect to the

transactions of which the addressees are consumers under article 6 titled

“Unfair Conditions of Contracts” of the Act concerning Protection of

Consumers numbered 4077 (“Act nr. 4077”).

Before regulated under Act nr. 4077, since there was no provision

with respect to GTT and the legal protection tried to be achieved based

on the mandatory provisions of Code of Obligations, Civil Code or

Commercial Code such as bona fides, violation of law, public morality or

public order or fraudulent actions.

In accordance with Article 6, added to the Act nr. 4077 with an

amendment announced in the Official Gazette dated 14.03.2003

, the

terms and conditions of contract, which are set forth in the agreement

unilaterally by the seller or the provider of the services without any

negotiation with the consumer -in other terms adhering party- and which

are against the bona fides, and thus causes extensively imbalanced

relationship against the consumer, are defined as “Unfair Conditions”.

This article also indicates that unfair conditions are not binding for the

consumers and can be put aside by the judge. Again, in accordance with

this article, as per article 7 of the “Regulation on Unfair Conditions under

Consumer Contracts” (“Unfair Conditions Regulation”) announced in

the Official Gazette dated 13.06.2003 and numbered 25137 emphasize

the invalidity of the unfair conditions and it sets forth that if the contract

stands, the remaining parts of the contract will be valid.

The “Law for Amending the Law concerning the Protection of Consumers” numbered 4822

announced in the Official Gazette dated 14.03.2003 and numbered 25048.