Applicability of standart business terms in commercial transactions

With the advent of the freedom of contract and the spread of the liberal economic order, individuals and commercial entities have adopted the practice of inserting unilateral terms and conditions that would become part and parcel of a contract with the intention of developing a uniform practice for similar transactions in the future and to for having precedent template contract, which would preclude any involvement by the counterpart to the contract. Consequently, while one party to the contract assumed the role of the party who unilaterally drew up the terms of the contract even prior to the signing of the contract, the other party who was unable to intervene in any way to the preparation of the contract inevitably had to submit to and become bound by the terms and conditions of a contract on which he had no opportunity to negotiate. As a result of the above, it became necessary over time to develop norms that would provide protection to the party who was not in any way involved with the drawing up of the contract and who was devoid of any opportunity to negotiate the terms of the contract, whereas the latter would under normal circumstances require the reflection of the parties mutual and free will. Notwithstanding the provision under Article 6, titled 'Unfair Terms', of Law No. 4077 on the Protection of the Consumer, which were in place prior to the enactment of Law No. 6098 on the Code of Obligations relating to general transaction in general, the said prior provision was not applicable for commercial transactions where one of the parties was not a consumer since it only provided protection in consumer-related transactions and vis-à-vis individuals who were deemed to be consumers. Consequently, lawmakers have inserted special provisions concerning the promulgation, scope and validity assessment of standart business terms. Since standart business terms have been regulated through the general provisions of the Code of Obligations and not through Law No. 6102 on the Turkish Commercial Code, which is silent on this issue has raised the question as to whether such terms would be equally applicable in circumstances where both parties are merchants or the subject matter of the contract is one that involves a commercial transaction, which is regulated through certain rules and provisions that stem from the inherent and peculiar nature of trade and commerce. In fact, as will be explored and illustrated in this academic work, whilst there exists no explicit restrictions on the applicability of general trading terms in commercial transactions, in view of the particular nature of commercial transactions as well as the fact that merchants are the principal actors in such contracts, the application of such general trading terms that were designed with general circumstances in mind, could have an adverse effect on the special rules and principles of commercial life. This study, therefore, intends to provide a uniform solution from an academic perspective with respect to the applicability of general transactional terms in commercial practice. Within the framework of the abovementioned context, this study shall explore and attempt to provide answers as to whether standart business terms could be applicable where commercial transactions are concerned or in cases where both parties are merchants; why there is a need for general transactional terms to be used in commercial transactions, and if such terms are used the criteria that has to be taken into consideration; a merchant's obligation to act as a prudent businessman; the impact upon validity assessment of provisions are either not applied insofar as merchants are concerned or provisions which have been deferred. The thesis shall, thereby, conclude by attempting to provide suggested solutions and proposals.