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The absence of the factor of “lack of opportunity to negotiate” or
“imposition” is criticized by academics.
2
Although the factor of “not
being negotiated” is regulated under article 6 of the Act nr. 4077 with
respect to consumer transactions, it is not indicated in article 20 of NCO.
The factor of “submission to the other party” which is used in the
definition is not a distinctive factor. The important matter here is, not only
submission of these terms to the other party but also unequal bargaining
power between the parties in other words the weak party’s position of
lacking the opportunity to negotiate. As a result, such party is faced with
either accepting the standard form contract including GTT or not reaching
the relevant service, performance or value simply worded as “take it or
leave it”.
3
Article 20 of NCO, following the definition of GTT, sets forth some
rules for not letting the terms in those kinds of contracts put out of the
definition by using some artificial methods. According to these rules:
- Placing those terms in the main text or in the annexes of the
contract, the scope, type script or form shall not be important for
the qualification.
- Not having the same texts for the contracts prepared for the same
purpose shall not prevent considering those terms as GTT.
- The terms and condition, inserted in the contract containing GTT
or another contract which are indicating that those terms are
accepted through negotiations, shall not, alone, take those terms
out of GTT definition.
The aim of the above provisions is to assess the merits of the matter
and to prevent getting round the mandatory provisions of the law.
In accordance with the last paragraph of this article,
“these provisions
for GTT are also applicable for the contracts prepared by the persons or
entities who are rendering services as per the permits given by law or by
2
Kuntalp, E
; Türk Borçlar Kanunu Tasarısı’na ilişkin Değerlendirmeler, p. 25, Galatasaray
Üniversitesi Yayınları, Istanbul 2005.
3
Demir, M
; 2008 Şubat Tarihli Borçlar Kanunu Tasarısı’nın Genel İşlem Koşullarına İlişkin
Maddelerinin (m.20-25) Değerlendirilmesi ve Çözüm Önerileri, TBB Dergisi, Sayı 76, p.
217, 2008.