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special contract types as per some other laws (e.g. TCC 1266, NTCC
1425) to be easily legible, are also reviewed for the validity assessment.
Interpretation Assessment
The interpretation assessment will be made on the contract terms
which were held subject to the validity assessment and deemed as fall
under the agreement.
The provision of NCO with respect to the interpretation assessment is
article 23. According to this article, if a term in GTT is not expressed with
a plain language and easily understandable or ambiguous, then it shall be
construed against the party who prepared the contract and in favor of the
weaker party. This provision with respect to the interpretation assessment
is a reflection of the main principles of Roman Law “
in dubio contra
stipulatorem
” (in doubt, the contract construed against the drawee)
4
.
Content Assessment
Article 25 of the NCO sets forth that within GTT cannot contain terms
which are against bona fides, against the other party and significantly
disadvantageous for the other party.
As is seen, this provision does not set forth the typical examples of
unilateral GTT which could be qualified as unfair conditions and it does
not set any concrete criteria for the assessment as well. Therefore, it puts
such assessment within the broad discretion of the court.
Here the main issue is that being deviated from the ideal and equal
balance of contract contrary to bona fides. In our opinion, during the
content assessment, it is necessary to take into account the following
matters for determining the violation of bona fides:
- whether the distribution of rights and obligations arising out of the
nature of the agreement is deformed;
- when and where the balance of the agreement is deformed;
- whether there is any deviation from the substitute provisions of law;
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Altop, A
; Türk Borçlar Kanunu Tasarısı’ndaki Genel İşlem Koşullarının Düzenlenmesi,
Prof. Dr. Ergon Çetingil ve Prof. Dr. Rayegan Kender’e Armağan.