364 / 521
Furthermore, the freedom of contract principle shall not be
neglected. For this reason, Art. 5/7 explicitly states that the balance
between the main obligations of the parties, or the balance between the
actual price and the contractual price of the relevant good or service,
should be disregarded in assessing whether a contract term is unfair or
not. As long as the contract is clear and comprehensible, no interven-
tion shall be made as to the balance of obligations of the parties, and
the “actual price” should not be determined.
Secondary Legislation and Sanction
The LCP authorized the Ministry to issue secondary legislation in
order to determine the procedures and principles for avoiding the
inclusion in contracts and application of unfair terms, and the inspec-
tion thereof. As of the date of this article, the Ministry has not yet
issued the secondary legislation. Pursuant to provisional Art. 1/3 LCP,
until the entry into force of the regulations foreseen under the LCP, the
provisions of the secondary legislation enacted under the fLCP not in
contradiction with the LCP shall continue to apply. The Abrogated
Regulation was replaced with the Regulation regarding Unfair Terms
in Consumer Contracts enacted in compliance with the LCP
8
(“Regulation”).
Articles 5 to 7 of the Regulation repeat the general principles laid
out in art. 5 LCP governing the definition, assessment and invalidity of
unfair terms.
In addition to the LCP provisions, Schedule-1 of the Regulation
non-restrictively provides certain examples of terms which are deemed
unfair
9
. These terms referred to in the schedule are unfair terms.
Nevertheless, other contractual terms may also be deemed unfair in the
presence of conditions specified under the LCP and the Regulation.
348
NEWSLETTER 2014
8
Published on the Official Gazette dated 17.06.2014 and no. 29033. The Regulation entered into
force on its publication date.
9
These examples include contract terms which relieve the contractor of liability in case of death,
corporal or material damages of the consumer; which foresee disproportionally high compen-
sation or liquidated damages to be paid by the consumer who does not fulfill its contractual
obligations; which grant only the contractor, and not the consumer, the right to abstain from ful-
filling its duties unless certain conditions are met, or to request the full contract price even if it
renounces from the contract or from its performance; or which grant the contractor the right to
unilaterally amend contract provisions.