ERDEM-NEWSLETTER-2018-metin

35 COMMERCIAL LAW goods, any agreement that removes or limits defects liability is invalid. • Swiss Law: Under Article 100 of the Swiss Code of Obli- gations, any agreement purporting, in advance, to exclude or limit liability for unlawful intent, or gross negligence, is invalid. • German Law: German law takes a more liberal approach to exemption clauses, and under Article 276/3 of the German Civil Code, these kinds of agreements are permitted, except in situations where the debtor deliberately violates the cont- ract. In German law, there is a special regulation regarding exemption clauses under standard conditions, and this shall be examined in detail, below. • English Law: Section 11 of the Unfair Contract Terms Act makes a stipulation for supervision regarding the reasonab- leness of the exemption clauses, and permits such clauses, to the extent they are reasonable. • CISG : Exemption clauses are not explicitly regulated under the CISG. However, Article 6 of the Convention permits the parties to agree to exclude the application of the Convention or, derogate from, or vary, the effect of any of its provisions. Also, under Article 7/2 of the Convention, questions con- cerning matters governed by the Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law. Accordingly, the parties may limit or remove seller’s liability. Also, under paragraph 4(a) of the CISG Advisory Council Opinion No. 17 on Limitation and Exclusion Clauses in CISG Contracts, it stipulates that the Convention does not preempt provisions of the applicable law, relying on notions, such as intentional or willful breach, gross negligence, breach of an essential term, gross unfairness, unreasonableness, or unconscionabi- lity, in cases where the Convention does not apply.