06.ANA METIN ingilizce.18

most cases are very long, written in incomprehensible wording, usual-

ly limiting the responsibilities of the party drafting such contract, and

which are not submitted for review nor negotiation by the counterparty.

This resulted in the increased need to provide protection, especially for

consumers who become party to goods and services contracts, as these

contracts usually include illegible and incomprehensible general terms.

This need resulted in an amendment to the fLCP by Law No. 4822,

introducing a new Art. 6 governing unfair terms in consumer transac-

tions, which regulated general transaction terms for the first time under

Turkish law. Art. 6 fLCP defines general transaction terms and refers

to unfair terms as “… contract terms which have been unilaterally

included in the contract without negotiating with the consumer, which

cause imbalance between the rights and obligations of the parties aris-

ing from the contract to the detriment of the consumer in violation of

the bona fide principle”. The law regulates that such conditions will not

be binding upon consumers.

Agreements between two merchants, which are not considered

consumer contracts, were not subject to the provisions of the LCP, and

Articles 19 and 20 of the abrogated Code of Obligations No. 818, gov-

erning invalidity, were applied in cases of unfair general terms.

However, said provisions regulated the invalidity of agreements due to

violation of the public order or morale, or whose subject matter was

impossible; and did not enable any intervention in the content of the

agreement. Nevertheless, unilaterally prepared contracts resulted in

major problems, not just for consumers, but also for merchants.

In order to mitigate these problems, the Turkish Code of

Obligations No. 6098 (“TCO”) regulated general transaction terms, to

govern all types of agreements

. The TCO initially provides a defini-

tion of general transaction terms, and regulates the inspection of

whether these terms became contractual terms (validity assessment),

how these terms will be construed (interpretation assessment), and

which terms will be deemed null and void (content assessment).

344

NEWSLETTER 2014

For detailed information on general transaction terms, see

Berna Aşık Zibel

, The Concept Of

“General Transaction Terms” And Its Implications Under New Code Of Obligations,

implications-under-new-code-of-obligations/ (accessed on 30 May 2014).