In Turkey, in 2012, the new Obligation Code was adopted which for the first time contains regulations regarding general conditions of contract for business relationships in the B2B field.

Articles 20-25 of the Turkish Obligation Code now regulate the configuration, applicability and interpretation of general contract conditions. §§ 305 ff. German Civil Code served as a template for the new Turkish law.

Pre-formulated contractual conditions which are drafted by one contract party for a variety of contracts and which, in addition, were not negotiated in detail by the respective other contractual party will fall within the scope of articles 20-25 Turkish Obligation Code as being general conditions of contract. General conditions of contract are subject to more stringent requirements under the law. Under Turkish law, a note in a contractual clause indicating that all clauses were negotiated will no longer suffice as evidence to assume that the clauses were in fact negotiated and that therefore the application of the strict law on general conditions of contract is excluded. Instead, concrete proof of respective correspondence between the parties is necessary.

General conditions of contract become an integral part of the contract if the user expressly points out the general conditions of contract to the opposing party, so that the latter has the opportunity to check the conditions and then explicitly or implicitly agree to them. A hidden or ambiguous note is not sufficient, and neither is just printing the general conditions of contract on the reverse of the contract or in a catalogue. Unlike under German law, it is not under Turkish law considered to be a sufficient – i.e. conclusive - notification among contract parties in the B2B sector if the party which introduces its general terms and conditions simply attaches the general conditions of contract to its offer without direct reference to them. This issue was strongly criticised in the legal literature, with good reason. It contradicts commercial interests: It is highly time-consuming in commercial relationships first to inform the contractual partner with regard to the general conditions of contract and then to await the explicit acceptance of such terms.

Under Turkish law, general conditions of contract are invalid particularly if the party introducing its general conditions of contract into the business relationship is entitled under such terms to change the promised performance or to deviate from it, and if such change or deviation would be unacceptable for the other contractual party.

The fact that general conditions of contract were expressly accepted by the other contract party does eliminate the need for the content of contract clauses to be compliant with the law. General conditions of contract are therefore invalid if they unreasonably disadvantage the contractual partner under the principles of good faith. Such disadvantage might arise from a regulation being unclear and incomprehensible (violation of the so-called transparency principle). In case of doubt, an inadequate disadvantage also has to be assumed if a clause is inconsistent with the basic principle of the legal regulation from which the clause seeks to deviate or if it limits essential rights or duties which arise from the nature of the contract in such a way that reaching the contractual goal is at risk. 

Conclusion:

Due to the very imprecise wording in some cases, there is a lot of scope for the respective interpretation of the new law on general conditions of contract, and this was the intention of the lawmaker. Therefore, it will probably take some time until respective judicial decisions in the form of binding court judgments will fill this scope for interpretation and thereby increase legal certainty.

Dr Gökçe Uzar Schüller (Avukat)