Author: Rüştü Mert Kaşka
The use of general terms and conditions is a commercial reality not only in consumer transactions but also in commercial transactions in certain industries such as automotive[1], banking, insurance, telecommunications and energy.[2] In fact, “general terms and conditions” have been around since the industrial revolution in the nineteenth century.[3]
Indeed, the reasonable use of general terms and conditions may serve to achieve efficiency, standardization and rationalization. Participants of the relevant sector may, through such terms, create a self-regulation mechanism. However, situations where users of such terms outright refuse to make any changes to them whatsoever for fear of distorting their operation are quite common. In such cases, attempts to negotiate such terms may easily become akin to the situation portrayed in the painting Duel with Cudgels,[4] as at least one of the parties is decidedly “dug-into” its position.
Acknowledging the fact that they may be abused by entities with stronger negotiating power, Turkish Code of Obligations numbered 6098 (“TCO”) contemplates a scrutiny mechanism for effectiveness of general terms and conditions. In case provisions contained in general terms and conditions fail to pass the effectiveness tests contemplated in the TCO, they are deemed as unwritten. However, the legal nature of being deemed unwritten is debatable. Popularity of general terms and conditions and unresolved debates surrounding what is meant by being deemed as unwritten demonstrates that this subject still warrants consideration.
