The limits and invalidity of non-liability agreements

Non-liability agreements in Turkish law provide the debtor with the opportunity to partially or completely prevent its liability arising from its non- obligatory behavior with a prior agreement. However, this opportunity has not been regulated unlimitedly and has been limited by various provisions by the legislator. The purpose of the legislator's limitation of non-liability agreements is to protect the creditor and to ensure public order. Because in ordinary debt relations and in the ordinary course of life, it is not a behavior to be expected from the creditor to accept a non-liability agreement, which will have negative consequences in the future, without gaining any counter-benefit. However, in practice, creditors, who are economically and socially weaker, accept the non-liability agreement without understanding its terms and consequences and almost never think about it. As a matter of fact, the legislator has limited non-liability agreements by taking this fact into account. The reason why the legislator limits the non-liability agreements is to eliminate the uncertainty that the creditor will face with the agreement of non- liability. Because, when the non-liability agreement was drawn up, no breach of debt occurred and the creditor was not harmed. Therefore, the creditor draws up a non- liability agreement without knowing her/his loss and the right to compensation in this context, and to relieve the debtor from liability. For this reason, the legislator has limited non-liability agreements with general and special provisions. In our study, the limits of non-liability agreements, the invalidity of non-liability agreements that do not comply with these limits, and the results of the invalidity are tried to be explained. The first section of our study is divided into two subheadings, the concept of non-liability agreement and the nature of non-liability agreement. In the first sub- title, the concepts of liability and non-liability are explained so as to be able to define the non-liability agreement first, and then the definition of the non-liability agreement is made. Within the scope of the definition of the non-liability agreement, the non-liability agreements in the narrow and broad sense and the terminology of the non-liability agreement are explained. Then, the purpose of the non-liability agreements is explained, and then the principle of freedom of will, which is the legal basis of the non-liability agreements, and the freedom of contract are mentioned. In the second sub-title of the first section of our study, the nature of the non- liability agreement is mentioned. First of all, the establishment of the non-liability agreement, which is a bilateral contract, is explained, and the special situations regarding the establishment of the non-liability agreement are mentioned. In particular, the establishment of non-liability agreement through silence, its establishment with general transaction conditions, and its establishment by publication are explained, and different views on these issues are included. Afterwards, the legal nature, form, and types of the non-liability agreement are explained respectively. In our study, the types of non-liability agreements are divided into two as non-liability agreements that completely eliminate the liability of the debtor and limit the liability of the debtor. In order to explain the types of non-liability agreements that limit the liability of the debtor, examples are given from current loan agreements used by banks and Supreme Court decision. In the last part of the first section of our study, non-liability agreements are compared with similar legal institutions, and it is drawn attention to the similarities and differences between them. In the second section of our study, the limits of non-liability agreements are explained. The second section is divided into two sub-headings: general and special limits of non-liability agreements. While explaining the general limits of non-liability agreements, only the limits regulated in Articles 115 and 116 of the Turkish Code of Obligations are mentioned. In this context, the general limits of the non-liability agreements are examined in accordance with the law systematically, by dividing them into two as non-liability agreements for the debtor's own actions and the debtor's non-liability agreements for the actions of the assisting person. The limits regulated in Article 27 of the Turkish Code of Obligations, which find execution in all contract law, are explained under the title of invalidity of non-liability agreements in the third section. Within the scope of the general limits of the non-liability agreements, the non-liability agreements for the debtor's own actions are divided into two: gross negligence and slight negligence. Subsequently, the special cases here are mentioned and exemplified by the Supreme Court decisions. Under the title of agreements of non-liability of the debtor for the actions of the assisting person, first of all, the necessary conditions for the liability of the debtor for the actions of the assisting person are explained. Then, the legal basis of the liability for the actions of the assisting person is mentioned, and the differences between the liability of the debtor from the assisting person and the liability of the employer are presented. Afterwards, the concept of the assisting person is explained, the framework of this concept is drawn, and the situations that are not considered as assisting persons are mentioned. Finally, the agreement and exception of non- liability for the actions of the assisting person are explained. Under the title of special limits of non-liability agreements, special provisions of the legislator regarding non-liability agreements in some contract types are included. Under this title, first of all, the conflict of laws and the problem of implementation between the general provisions and special provisions in Articles 115 and 116 of the Turkish Code of Obligations are mentioned. Then, the specific provisions regarding the non-liability agreements arising from the Highway Traffic Law and the package tour agreements in the contracts to be made by the operators of accommodation, garages and parking lots, and similar places, respectively, in the seller's debt of guarantee against defect and seizure, in the delivery debt of the lessor, are explained. In addition, the second section is completed by giving examples from the Supreme Court decisions regarding these special limitations. In the third section of our study, the invalidity of non-liability agreements is explained under the headings of final invalidity and being deemed unwritten. First of all, it is emphasized that the non-liability agreement is against the limits set in Article 27 of the Turkish Code of Obligations, and the sanction of nullity is explained. Since non-liability agreements are generally regulated with general transaction conditions in practice, first of all, explanations regarding the general transaction conditions are made under the title of being deemed unwritten of the non- liability agreements. In this context, the necessary conditions are included in order for the non-liability agreement to be valid and result in the event that it is regulated with the general transaction conditions. Then, the sanction of being deemed unwritten for non-liability agreements is explained and different views in the doctrine regarding the sanction of being deemed unwritten are included. Finally, the situations in which the sanction of nullity will be applied for the non-liability agreements regulated with the general transaction conditions are explained. In the last part of the third section of our study, the results of the invalidity of the non-liability agreements are explained. First of all, the invalidity of non-liability agreements as a whole is mentioned. Then, the effect of its invalidity on the main contract in case the non-liability agreement is arranged as a subsidiary agreement is explained. Afterwards, it is mentioned how the liability of the debtor will be determined in case of invalidity of the non-liability agreement, which is arranged as a subsidiary agreement. In the case that the non-liability agreement is regulated with the general transaction conditions, the effect of the invalidity on the main contract is mentioned in the same way. Then, our study is concluded by explaining how the liability of the debtor will be determined in case of invalidity of the non-liability agreement regulated by the general transaction conditions.