ERDEM-NEWSLETTER-2018-metin

36 NEWSLETTER 2018 • Unidroit Principles 2016 (“Principles”): Under Article 7.1.6 of the Principles that regulate exemption clauses, exemption clauses may not be invoked if it would be grossly unfair to do so, having regard to the purpose of the contract. In the Commentary to the said Article, the concept of “grossly un- fair” is explained, and a term is defined as ‘grossly unfair,’ if it is inherently unfair, and its application, would lead to an evident imbalance between the performances of the parties. Moreover, according to the Commentary, again, even if the exemption clause is not in itself manifestly unfair, where the non-performance is the result of grossly negligent conduct, or where the aggrieved party could not have obviated the conse- quences of the limitation or exclusion of liability by taking out appropriate insurance, the exemption clause shall be invalid. Exemption Clauses Included under the General Conditions of Sale In practice, exemption clauses are generally included under a seller’s general conditions of sale. Standard conditions of sale are qualified as general terms and conditions. General terms and condi- tions are defined as “contract provisions that are prepared unilaterally in advance by the drafter for use in the future in numerous similar contracts and proposed to the other party” under Article 20 of the TCO . In a sales agreement, these conditions are generally stipulated by the seller, and requested to be signed by the seller as an annex to the sales agreement. Under Article 21 of the TCO, the general terms and conditions that are to the detriment of the opposing party shall be included within the scope of the contract only if the drafter informs the other party regarding the presence of that term, and gives the other party the option to review its content, and the other party so accepts. Otherwise, the general term and conditions shall be regarded as not having been made. Article 25 of the TCO also regulates that the general terms and conditions shall not include terms detrimental to the other party in a manner contrary to good faith. For example, a standard term that stipulates that the buyer can use its right of replacement or repair only within three days following the sale, in the event the computer it has purchased is defective, should be considered invalid.