General Terms and Conditions in Turkish Law of Obligations 22 January 2020
Contracts, which are prepared by one of the parties within the scope of freedom of contract and submitted for counter party’s signature without giving permission for any amendment or discussion on contract provisions, are valid in principle if the counter party agrees on the provisions and there is pressure to sign the contract. However, it is obvious that when the contract is about providing goods and services, one of the parties may abuse the standardized terms by preparing fixed standard contracts comprised of lots of pages named as “general terms and conditions” which are in favor of himself and against to counter party. Likewise, the party, who is generally weaker one and wants to get goods or services, would either accept the terms that are imposed to him through fixed standard contracts or would be destitute of those goods and services. Some provisions related general terms and conditions are regulated under the Articles between 20 and 25 of Turkish Code of Obligations (“TCO”) numbered 6098 in order to prevent such abuses.
General terms and conditions are defined as follows in Article 20 of TCO:
“General terms and conditions are provisions which have been drafted solely by a party and submitted to the other party in advance of a contract is concluded so as to be used in many similar contracts subsequent. When classifying these terms, no regard should be made upon their scope, font type or shape or whether they are located in the text or annex of the contract.”
With this regard, contract provisions which have been drafted by one of the parties unilaterally to use in many similar contracts in future and submitted to the counter party, are considered as general terms and conditions. However, due to the possibility of preparing a contract by adopting general terms and conditions which would result in legal consequences against one of the parties, protection measures have been adopted by the legislation.
Article 21 of TCO regulates that “General terms and conditions which are in the other party's disadvantage can only be included to the scope of a contract only upon his acceptance and providing that the party who draws the contract up has evidently informed the other party of the presence and the contents of them. Otherwise, the general terms and conditions shall be deemed unwritten.” Hence, if general terms and conditions are regulated in one party’s disadvantage, the party shall be informed about the presence and the contents of these conditions and counter party shall accept in order to be preserved their existence. Besides, the general terms and conditions which are not familiar with the nature of the contract and the characteristics of the transaction shall also be deemed unwritten. Additionally, it is regulated in the Article 23 of TCO, “Where one of the provisions of general terms and conditions is unclear, unreadable or comprehensible then it shall be interpreted in favor of the other party and in disadvantage of the party who prepares the contract”. Besides, it is prohibited in Article 24 of TCO to unilaterally make amendments which are in the disadvantage and in the detriment of the other party, however, it is authorized to amend or regulate the terms of contract in favor of counter party. Finally, it is stated in Article 25 of TCO that general terms and conditions cannot contain provisions which are contrary to good faith and in the disadvantage of the contrary party. Therefore, it is very important to consider the provisions of the relevant legislation and judgments when adopting general terms and conditions in the contracts as it would affect the validity of the provisions of the contract.
Türkçe Versiyonu İçin
http://www.kasaroglu.av.tr/tr/turk-hukukunda-genel-islem-sartlari
