362 / 521
After defining the unfair terms, the LCP regulates the conse-
quences thereof. Accordingly, unfair terms are null and void. Further,
it is worth emphasizing that the contract as a whole will continue to be
effective, and solely the relevant unfair provision will become null and
void. The counterparty of the contract cannot argue that it wouldn’t
have concluded the contract in the absence of the nullified term. If
there is a gap due to the unenforceability of the invalid term, in the
event of a dispute, the judge shall fill the gap by applying ancillary pro-
visions of law or a norm which it shall define, depending on the cir-
cumstances of a given case. The fLCP did not state as clearly and
explicitly as the LCP that the invalidity related solely to the unfair
term. Thus, the express provision of the LCP is important for clarity.
Interpretation
Pursuant to Art. 5/4 LCP, the written contract terms must be clear
and comprehensible. The language should be easily comprehensible to
the consumer. As emphasized in the legislative justification of the law
4
,
the biggest obstacle in practice before consumers is that the contract
terms have very complicated wordings, as if incomprehensibility is the
goal. The LCP aims to prevent this practice.
The same paragraph also regulates how unclear terms will be inter-
preted. Accordingly, if a contract term is not clear or may have various
interpretations, it shall be interpreted to the benefit of the consumer.
The interpretation of an average consumer shall be taken as a basis
5
.
This provision introducing rules of wording and interpretation is
not new in consumer law, as a similar provision was included in Art. 6
of the abrogated Regulation regarding Unfair Terms in Consumer
Contracts
6
(“Abrogated Regulation”) which entered into force under
the fLCP. We believe that the codification of this principle under law is
positive.
346
NEWSLETTER 2014
4
Justification, art. 5.
5
Prof. Dr. İ Yılmaz Aslan
, Tüketici Hukuku Dersleri, 2006, p. 180.
6
Published on the Official Gazette dated 13.06.2003 and no. 25137.