294 / 516
in force since July 1, 2012 stipulates that the parties may freely deter-
mine interest rates for business transactions.
Legal Problem
In this case, it is seen that the usury limitations set forth under
TCO and the freedom for determination of the interest rates for busi-
ness transactions stipulated by art. 8/1 of the TCC contradict.
Consequently, the problem is to examine whether the limitations set
forth under TCO shall be applied to business transactions despite the
provision of art. 8/1 of the TCC. In other words, may the interest rates
for business transactions be freely determined despite the provision of
TCO? Another provision complicating the problem is art. 9 of the
TCC. This article stipulates application of relevant legislation to legal,
capital and default interests. Since the provisions of TCO are also a
part of the legislation on interests, it is possible to defend that the inter-
est rates limitations shall be applied to business transactions.
This legal problem arises from the fact that the TCO does not
include any specification regarding the scope of application of the rel-
evant provisions from the point of persons and this problem is dis-
cussed in the doctrine
2
. According to an opinion
3
, the TCO does not
make any difference between the persons within the scope of applica-
tion of the article such as merchants or non-merchants. The TCO pro-
visions regarding interest rate limitations aim not only to protect the
non-merchants but also the merchants because the excessive interest
rates practices which is effective for the occurrence of the idea to limit
the contractual interest rates caused negative effects also over the mer-
chants. As a result, it must be accepted that the limitations for interest
rates shall be applied also to the merchants.
According to other opinion
4
, the relevant TCC provisions have the
nature as “specific provision” which entered into force on the same
280
NEWSLETTER 2012
2
Legal Hukuk Dergisi, September 2005, Year: 3 No: 34, p. 3641;
AYDOGDU, Murat
, 6098
Sayili Turk Borclar Kanununda Faiz ile İlgili Duzenlemeler, Dokuz Eylul Universitesi Dergisi,
2010, Tome 12, N. 1, p. 95;
OGUZMAN, Kemal/OZ, Turgut
, Borclar Hukuku, Istanbul 2011,
p. 523;
ARKAN, Sabih
, Ticari Isletme Hukuku, Ankara 2011, p. 77 vd.
3
AYDOGDU
, p. 95.
4
OGUZMAN/OZ
, p. 523.