What are the General Terms and Conditions?

What are the General Terms and Conditions? | Izmir Lawyer

Definition

Turkish Code of Obligations In this context, general terms and conditions are defined as contractual provisions that the drafter prepares unilaterally in advance and presents to the other party for use in numerous similar contracts in the future. Whether these conditions appear in the contract text or an annex, their scope, writing style, and form are irrelevant in their classification. The fact that the texts of contracts drawn up for the same purpose are not identical does not prevent the provisions contained in these contracts from being considered general terms and conditions.

The mere inclusion of clauses in a contract containing general terms and conditions, or in a separate contract, stating that each of these terms and conditions has been discussed and accepted, does not, by itself, render them ineligible as general terms and conditions.

The provisions regarding general terms and conditions of business also apply to contracts prepared by individuals and organizations that carry out their services with permission granted by law or competent authorities, regardless of their nature.

Ignored

For general terms and conditions that are contrary to the interests of the other party to be included in a contract, it is necessary that the party drafting the contract explicitly informs the other party of the existence of these conditions at the time of contract formation, provides them with the opportunity to learn about their content, and that the other party accepts these conditions. In other words, if the consumer is not explicitly informed about provisions in the contract that are detrimental to them, and is not given the opportunity to learn about them, the general terms and conditions are considered null and void.

General terms and conditions that are irrelevant to the nature of the contract and the specifics of the transaction are also deemed not to have been written. The provisions of the contract other than the general terms and conditions deemed not to have been written remain valid. In this case, the party drafting the contract cannot claim that they would not have entered into the contract with the other provisions if the general terms and conditions deemed not to have been written had not existed.

Interpretation

If a provision in the general terms and conditions of a transaction is not clear or understandable, or if it has multiple meanings, it will be interpreted to the detriment of the party that drafted it and to the benefit of the other party.

Unilateral Modification Prohibition

Clauses in a contract containing general terms and conditions, or in a separate contract, that grant the drafter the unilateral power to amend or introduce a provision of the contract containing the general terms and conditions to the detriment of the other party. considered unwritten.

Content Moderation

In violation of general terms and conditions of business and rules of honesty, to the detriment of the other party or to their situation No aggravating circumstances can be imposed.

Supreme Court Decisions

SUPREME COURT GENERAL ASSEMBLY OF LAW E. 2014/855 K. 2016/187

General terms and conditions are contractual terms unilaterally determined in advance by one party to a contract, with the intention of presenting them to the other party for acceptance without modification in future contracts. As this definition suggests, certain elements must be met for general terms and conditions to be considered valid. General terms and conditions are generally prepared to regulate the content of a contract, and this activity takes place unilaterally before the contract is concluded. The aim is to determine the terms to be used in multiple contractual relationships and to include them in the contract as a whole without allowing the other party to interfere. How these terms are prepared, whether they are written down, the type of writing, and whether the text is included in the contract text are not important factors in determining whether they qualify as general terms and conditions. For general terms and conditions to be considered valid, the other party must not have been able to influence their content.

Therefore, the elements of general terms and conditions are: a) They constitute the terms of a contract, b) They are drawn up before the conclusion of the contract, c) They are designed for use in more than one contractual relationship, d) They are presented to the other party by the user with the intention of including them in the contract (Yeşim M. Atamer, The Control of General Terms and Conditions within the Framework of the Problem of Limiting Contractual Freedom, 2nd Edition, Istanbul 2001, p. 61 et seq.).

Article 6 of the repealed Law No. 4077 on Consumer Protection, titled "Unfair Terms in Contracts," which should be applied to the specific dispute, states: "Contractual terms unilaterally imposed by the seller or provider without negotiation with the consumer, which cause an imbalance against the consumer in a manner contrary to the principle of good faith in the rights and obligations arising from the contract, are unfair terms.".

Unfair terms in any contract where one of the parties is a consumer are not binding on the consumer. If a contract term has been predetermined and the consumer has not been able to influence its content, especially if it is included in a standard contract, it is considered that the contract term was not negotiated with the consumer.

If, upon evaluation of the contract as a whole, it is concluded that it is a standard contract, the fact that certain elements of a clause or an individual provision in this contract have been negotiated does not prevent the application of this clause to the rest of the contract.

If a vendor or supplier claims that a standard requirement was individually discussed, the burden of proof rests with them.

Consumer contracts, which are required to be in writing under articles 6/A, 6/B, 6/C, 7, 9, 9/A, 10, 10/A, and 11/A, must be written in at least twelve-point bold black letters. The absence of one or more of the required conditions in the contract does not affect its validity. This deficiency shall be immediately remedied by the seller or supplier.

The regulation states: "The Ministry shall determine the procedures and principles for identifying unfair terms in standard contracts and ensuring their removal from the contract text.".

In light of this clear provision, it is undeniable that unfair general terms and conditions included in standard contracts are not binding on the consumer….

Supreme Court of Appeals, 23rd Civil Chamber, Case No: 2018/1425, Decision No: 2427

The plaintiff claims that Article 16 of the Connection Agreement, concerning the penalty clause, contains a warning clause. Although the warning clause for violations of Article 9, which regulates penalty clauses, was removed in the System Usage Agreement dated May 31, 2012, the issue of which clause should prevail in the case of conflicting provisions regarding the warning clause in the System Usage Agreement and the Connection Agreement must be considered. Given that the defendant is the sole service provider and therefore has the power to unilaterally determine the content of the contract, the penalty clause provision in the revised System Usage Agreement dated May 31, 2012, should be considered a general condition of transaction according to Article 20/1 of the Turkish Code of Obligations. Therefore, in accordance with the content review conducted under Article 25, it should be accepted that the penalty clause can only be applied if the violation committed by the plaintiff is not remedied despite the warning.

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