Türkçe
What are the Standardized Terms?
In general, contract liberty is accepted under Turkish Law of Obligations. Accordingly; unless contrary to the mandatory provisions of the law, the parties of a legal relationship can freely determine the terms of the contract to be signed between the same. The provisions determined in this way would be binding on both parties and would remain valid as long as the contract remains.
However; the standardized terms, in other words, the 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, are valid only in some circumstances. Such contracts may only be valid if the counter party agrees on the provisions and there isn’t any pressure on him to sign the contract.
In practice; banks, construction companies which offer real estates or companies providing goods and services to large masses have no chance to discuss the terms of their contracts with every single customer and thus, prepare standardized general terms and conditions which would be applied identically for each and every customer. Such general terms and conditions texts which include terms in favor the party who prepared the same are called “standardized terms” under Turkish code of Obligations. The party willing to purchase the goods or services would either accept such standardized terms imposed on the same or would be devoid of those goods and services.
In order to prevent the imposition of such standardized terms to the weaker one in a legal relationship, the legislator made some specific regulations under Articles 20 -25 of the Turkish code of Obligations. (“TCO”). The standardized terms are defined under Article 20 of TCO as follows:
“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.”
Which Contracts / General Terms and Conditions are Accepted as Standardized Terms?
In order for a contract text to be accepted as standardized terms under the TCO, the following conditions should be existing:
1) Drafted by one party unilaterally: As mentioned above; terms of contract should be drafted by one party unilaterally without the participation of the other party. Pursuant to the first paragraph of Article 20 of TCO, the scope, font type or shape or location in the text or annex of the contract would not matter while determining whether a contract is standardized term or not.
In addition; pursuant to Paragraph 2 of Article 20 of TCO, “It does not preclude the provisions of a contract be deemed as general terms and conditions even the text of the contracts which are concluded for the similar purposes are not equivalent with each other.” Therefore, provisions, whose language, title or article numbers are altered, would also be regarded as standardized terms under the TCO.
2) To be submitted to the counter party without granting any right for negotiation: In order for a contract, which is drafted by one party unilaterally, to be regarded as standardized terms, such contract should be submitted to the counter party without negotiation opportunity. In addition; pursuant to Paragraph 3 of Article 20 of the TCO “Where a contract with standardized terms involves in its text or in another contract provisions that each of the term or condition has been accepted upon negotiation do not solely exclude them of being general terms and conditions.”
3) To be drafted to be used in many similar further contracts: The contract with standardized terms should be drafted to be used in many similar further contracts to be signed by other customers without focusing on one specific person or group.
Are the Regulations for Standardized Terms also Applicable for Merchants?
Although it is commonly assumed that the standardized terms of transaction would merely find application for contracts executed with consumers and natural persons; in accordance with the decision of 11th Chamber of Supreme Court dated 29.05.2017 and numbered 2016/4676 E., 2017/3160 K.; “The standardized terms audit, which is valid for both consumers and traders, protects the parties of the contract, which is in a more negative state during the signing of the contracts, within the framework of honesty rules… The nature of the standardized terms in a contract needs to be determined according to objective factors, and it is not important whether the parties are professions and adjectives, whether they are merchants or consumers.” Accordingly, it is obvious that the regulations made under Article 20 and the following articles of TCO for the standardized terms would also be applicable for merchants.
What would be the Sanctions if a Contract is Regarded as Standardized Terms?
1) Being deemed unwritten under Article 21 of TCO:
In accordance with Article 21 of TCO;
“Standardized terms 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.”
The standardized terms which are not familiar with the nature of the contract and the characteristics of the transaction shall also be deemed unwritten.”
2) Consequences of being Deemed Unwritten under Article 22 of TCO:
In accordance with Article 22 of TCO;
“The provisions of the contract, other than the standardized terms which are deemed not written, remain valid. In this case, the regulator cannot claim that he would not make a contract with the other provisions without the conditions deemed to be written.”
However, in accordance with the decision of 11th Chamber of Supreme Court dated 29.05.2017 and numbered 2016/4676 E., 2017/3160 K.; “In case the contract provision, which is regarded as unwritten or null due to the standardized terms regulations, creates a gap in the implementation of the contract, the resulting intra-contractual gap should be filled by the judge by primarily using the reserved law or customary law under Article 1 of the Turkish Civil Code. If these would not be possible, such gap should be filled by the judge’s law creation method.”
3) Prohibition of Disadvantageous Interpretation under Article 23 of TCO:
Pursuant to 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.”
4) Prohibition of Unilaterally Change under Article 24 of TCO:
Pursuant to Article 24 of TCO;
“Provisions granting a unilateral right to the drafter of a contract to amend or regulate a provision against the favor of the other party under a contract including the standardized terms or under a separate contract shall be deemed unwritten.”
5) Prohibition of Regulating Provisions Contrary to Good Faith under Article 25 of TCO:
Pursuant to Article 25 of TCO;
“Standardized terms cannot contain provisions contrary to good faith, which are in the disadvantage and in the detriment of the other party.”
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