ERDEM-NEWSLETTER-2018-metin

37 COMMERCIAL LAW Article 307 of the German Civil Code is the provision that corre- sponds and makes clear the standard of good faith that Article 25 of the TCO aims to formulate 6 . In German law, which generally has a more liberal regime as to exemption clauses, there is a special provision for exemption clauses included under general terms and conditions. In the second sentence of the second paragraph of the Article, if the es- sential rights and obligations inherent in the nature of the contract are limited to such an extent that attainment of the purpose of the contract is jeopardized, it is accepted that the limitation unfairly aggravates the condition of the opposing party; and such an aggravation violates the principle of good faith, rendering it invalid. Conclusion Contractual guarantees given by the seller in sales contracts that replace the provisions of law related to the liability of defects is common practice. With contractual guarantees, optional rights of the buyer, such as rescission of the contract, repair, replacement and price reduction can be extended, repeated, limited, or completely removed from the contract. In the event the parties are willing to apply the pro- visions of the contract by removing the regime of liability foreseen in the law, this must be explicitly determined. Provisions of sales contracts that limit or remove the liability of the seller qualify as “exemption clauses.” Exemption clauses are specifically regulated in many legal systems and international conven- tions, and are deemed invalid in cases of gross fault, willful neglect, or gross negligence of the seller, or when they are unreasonable or not proportionate. In the event the exemption clauses are included under the seller’s standard terms of sales, and qualify as general terms and conditions, limitations that are to the detriment of the seller, and aggravate its condition in such a way that violates the principle of good faith, are considered as not having been made. Under German law, the general terms and conditions that restrict the inherent rights and obligations arising from the nature of the contract, to the extent that the purpose of the contract is jeopardized, are invalid. 6 Başalp, Nilgün : Sorumsuzluk Anlaşmaları, İstanbul 2011, p. 207.