GENERAL TERMS AND CONDITIONS IN THE SALE CONTRACTS UNDER TURKISH CODE OF OBLIGATIONS (MAY 2014)

“General terms and conditions” (“GTC”) have been regulated under Turkish Code of Obligations (“TCO”) numbered 6098.

General terms and conditions have been initially regulated under Turkish Law, as unfair conditions under Consumer Protection Law numbered 4077 and the new Consumer Protection Law numbered 6502 which enter into force on 28.05.2014. However, These latter mentioned regulations have been provided in favor of consumers and ruling the contracts which are concluded with consumers. General terms and conditions regulated under TCO numbered 6098 have been provided in order to eliminate unequal applications due to the personality of the parties of the contract. In other words, general terms and conditions regulated under TCO eliminate the differences between consumer and merchants. 

The GTCs are also known as standard contract, formalited contracts or typical contracts. The issuing party of a GTC, specifies the content of the contract previously and unilaterally and provides the contract for the acceptance of the counter party as a standard.

Pursuant to the Article 20 of TCO, in case the article of the contract includes below mentioned elements, the provision shall be deemed as a general term and condition. These elements are as follows;

regulated with the aim to be used for a wide range of similar contracts.
regulated previously and unilaterally; and submitted to the counter party. 

Pursuant to Article 21 of TCO, general terms and conditions in the contract are valid if only the providing party;

informs the counter party about the existence of GTC explicitly, 
provides the counter party time to investigate the content of the GTC,
demands the explicit acceptance of the counter party. 

Otherwise, these terms and conditions shall be deemed as void. Moreover, in case the condition is not compatible with characteristics of the contract and nature of the business specified in the contract, this condition shall be deemed as void. Articles which provides option to the regulating party to alter or to amend an article of the contract unilaterally against will of the counter party shall be also deemed as void.

In case some articles are found as void due to the existence of the conditions under  Article 21 of TCO, the other articles of the contract shall be still valid. The issuing party cannot assert that the contract would not be concluded without the existence of invalid terms and conditions. 

In case an article concerning general terms and conditions is not explicit and comprehensible or has more than one meaning, this article is interpreted in favor of the counter party and against the providing party. Pursuant to Article 25 of TCO, general terms and conditions cannot be regulated against good faith principle, against the counter party or as an aggravated article. General terms and conditions, which are deemed as unfair conditions, are not limited with the article aforementioned. The judge has been charged to determinate whether a general term and condition has to be deemed as unfair conditions in his own discretion. 

GTCs are generally used for and exist in sale, insurance, subscription, carriage and loan contracts. New regulations regarding general terms and conditions under TCO prevent treatments which is contrary to the freedom of will and contract.