Turkish Contract Law Reform: Standard Terms, Unforeseen Circumstances, and Judicial Intervention

27 Pages Posted: 15 Oct 2016 Last revised: 4 Oct 2017

Date Written: October 14, 2016

Abstract

The aim of the present study is to analyse, in Turkish law, judicial and legislative interventions in the realm of freedom of contract, and to show how, and under what circumstances, contractual expectations depend upon a variety of non-contractual economic and social expectations. I particularly consider the role of good faith and the constitutional principle of protecting the vulnerable in contract interpretation, which first gained high prominence in the case law, and was then, to some extent, codified by the legislature in the 2012 Code of Obligations. I will start by presenting briefly the legal Westernisation process in Turkey as a result of the reception of Swiss private law at the beginning of the 20th century. This will make it easier to understand the organic evolution of judge-made contractual justice, an implicit factor having impact on consumers as well as businesses. I will then critically evaluate the way the legislature codified the case law that had imposed certain fairness requirements reflecting the business environment in Turkey. Such an evaluation will allow me to assess whether the new law is fit for its purpose and prepared for the challenges of the future.

Keywords: Turkish contract law, Contractual fairness, Adaptation of contracts, Unfair terms, Battle of the forms, Excessive penalties, Economic exploitation

JEL Classification: K12

Suggested Citation

Büyüksagis, Erdem, Turkish Contract Law Reform: Standard Terms, Unforeseen Circumstances, and Judicial Intervention (October 14, 2016). European Business Organization Law Review, Vol. 17, No. 3, 2016, p. 423-449, Available at SSRN: https://ssrn.com/abstract=2852322
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