295 / 516
date as TCO. Because of this fact, the TCC provisions, rather than the
TCO, shall apply to the merchants. Within this scope, the interest rate
for the business transactions shall be freely determined by the parties.
According to this opinion, the reference made to application of legal
dispositions concerning the interest is addressed only to conditions of
interest, to its calculation, its subsidiary nature and interest rates; so
that the reference cannot be accepted as addressed to the limitation of
the rates. Another interpretation shall be in contradiction with art. 8/1
of the TCC.
It is also expressed in the doctrine that the interest rates for the
business transactions may freely be determined despite the fact that the
limitations under TCO are statutory for the non-business transactions
5
.
Conclusion
Indeed, it must be accepted that the merchants suffered during the
economic crises periods because of the excessive interest rates.
However, the fact that the TCC which has the nature of specific provi-
sion does not limit the freedom of the parties to determine a contractu-
al interest rate, contrarily it stipulates an explicit freedom for determi-
nation of them, should be interpreted as the provisions of the TCO pro-
visions regarding interest rate provisions shall not apply to business
transactions. Otherwise, legal value of art. 8/1 shall be discussed.
Within this scope, it is possible that the freedom stipulated under art.
8/1 of the TCC shall be interpreted as the freedom is valid within the
limitations stipulated under TCO. However, this idea cannot be defend-
ed by the justification of the article or the chronological development
of the article. If the legislator had the idea to limit the interest rates
even for business transactions; it would have stipulated it either explic-
itly or by a reference to TCO. In this case, it is more convenient to
accept that the interest rates shall be freely determined for business
transactions. However, it should be always reminded that the freedom
to determine the interest rates shall be limited with good faith princi-
ple, the situation of economic distress of the merchant or the possibil-
ity of reduction of the penal clause
6
.
LAW OF OBLIGATIONS
281
5
ARKAN
, p. 77.
6
OGUZMAN/OZ
, p. 523,
ARKAN
, p. 77.