Turkey: Unfair Terms In Consumer Contracts


The Law on Consumer Protection No. 6502 ("LCP") was published in the Official Gazette dated 28 November 2013 and numbered 28835. Pursuant to Art. 87 regulating entry into force, the LCP became effective six months after its publication, on 28 May 2014 and abrogated the former Law on Consumer Protection No. 4077 ("fLCP"). This amendment is aimed at ensuring coherence with European Union legislation, enacting provisions by also taking into account the consumer protection legislation of Switzerland, and establishing a framework which provides for efficient protection of the consumer, including market audits and the right to legal remedies1.

The novelties introduced under the LCP, defective goods and services under the LCP have been assessed in various Newsletter articles2. This article focuses on the unfair terms in consumer contracts.

General Transaction Terms in Turkish Law

In practice, enterprises providing numerous goods and services usually prepare various contract types and form agreements, which in most cases are very long, written in incomprehensible wording, usually limiting the responsibilities of the party drafting such contract, and which are not submitted for review nor negotiation by the counterparty. This resulted in the increased need to provide protection, especially for consumers who become party to goods and services contracts, as these contracts usually include illegible and incomprehensible general terms.

This need resulted in an amendment to the fLCP by Law No. 4822, introducing a new Art. 6 governing unfair terms in consumer transactions, which regulated general transaction terms for the first time under Turkish law. Art. 6 fLCP defines general transaction terms and refers to unfair terms as "... contract terms which have been unilaterally included in the contract without negotiating with the consumer, which cause imbalance between the rights and obligations of the parties arising from the contract to the detriment of the consumer in violation of the bona fide principle". The law regulates that such conditions will not be binding upon consumers.

Agreements between twomerchants, which are not considered consumer contracts, were not subject to the provisions of the LCP, and Articles 19 and 20 of the abrogated Code of Obligations No. 818, governing invalidity, were applied in cases of unfair general terms. However, said provisions regulated the invalidity of agreements due to violation of the public order or morale, or whose subject matter was impossible; and did not enable any intervention in the content of the agreement. Nevertheless, unilaterally prepared contracts resulted in major problems, not just for consumers, but also for merchants.

In order to mitigate these problems, the Turkish Code of Obligations No. 6098 ("TCO") regulated general transaction terms, to govern all types of agreements3. The TCO initially provides a definition of general transaction terms, and regulates the inspection of whether these terms became contractual terms (validity assessment), how these terms will be construed (interpretation assessment), and which terms will be deemed null and void (content assessment).

Art. 5 LCP readopted the provision of the fLCP governing unfair terms with a broader scope. This provision aims to provide more specific and comprehensive protection of consumers than the protection foreseen under the TCO. The underlying reason for this specific protection is that, a consumer is usually more vulnerable when faced with general terms, being in a position where he cannot exercise his freedom of contract, avoid general transaction terms, and is obliged to accept the terms and conditions set forth by the counter party. Thus ultimately, the consumer has to make a choice between accepting the transaction terms or renouncing the contract as a whole.

LCP Provisions

Definition and Consequences of the Unfair Terms

Art. 5 LCP defines unfair terms. Accordingly, a contract term will be deemed as an unfair term if two conditions are met.

First, said term should be included in the contract without being negotiated with the consumer. The wording of Art. 6 fLCP expressly stated that terms unilaterally included by the seller or the provider could be deemed unfair. Nonetheless, the LCP does not expressly specify the person who prepared or drafted a contract, but only requires that the term not be negotiated by the consumer in order to be considered an unfair term.

The law also specifies cases where a relevant contract term will be deemed non-negotiated. Accordingly, previously drafted clauses in standard form contracts whose content cannot be altered by the consumer are deemed to be non-negotiated. Moreover, if the party having drafted the contract alleges that a term had been negotiated with the consumer, he is under the burden of proof of such allegation.

Second, this term should result in an unfair imbalance between the rights and obligations of the parties arising from the contract, which is incompatible with the good faith principle.

Moreover, pursuant to the final paragraph of Art. 5 LCP, the Ministry of Customs and Trade ("Ministry") shall define the terms which are deemed unfair terms with a regulation. The terms specified in the regulation shall be considered unfair terms, regardless of whether the above conditions are met or not.

After defining the unfair terms, the LCP regulates the consequences thereof. Accordingly, unfair terms are null and void. Further, it is worth emphasizing that the contract as a whole will continue to be effective, and solely the relevant unfair provision will become null and void. The counterparty of the contract cannot argue that it wouldn't have concluded the contract in the absence of the nullified term. If there is a gap due to the unenforceability of the invalid term, in the event of a dispute, the judge shall fill the gap by applying ancillary provisions of law or a norm which it shall define, depending on the circumstances of a given case. The fLCP did not state as clearly and explicitly as the LCP that the invalidity related solely to the unfair term. Thus, the express provision of the LCP is important for clarity.


Pursuant to Art. 5/4 LCP, the written contract terms must be clear and comprehensible. The language should be easily comprehensible to the consumer. As emphasized in the legislative justification of the law4, the biggest obstacle in practice before consumers is that the contract terms have very complicated wordings, as if incomprehensibility is the goal. The LCP aims to prevent this practice.

The same paragraph also regulates how unclear terms will be interpreted. Accordingly, if a contract term is not clear or may have various interpretations, it shall be interpreted to the benefit of the consumer. The interpretation of an average consumer shall be taken as a basis5.

This provision introducing rules of wording and interpretation is not new in consumer law, as a similar provision was included in Art. 6 of the Regulation regarding Unfair Terms in Consumer Contracts6 ("Regulation") which entered into force under the fLCP. We believe that the codification of this principle under law is positive.


The LCP governs consumer transactions and practices addressing consumers. Accordingly, it is understood that Art. 5 regulates consumer contracts and the unfair terms therein.

An important innovation under the LCP is defining the scope of applicability of Art. 5 based on the counterparty of consumer contracts. Pursuant to Art. 5/5 LCP, the fact that the drafting counter party of the consumer contract operates under permission granted by law or by relevant authorities shall not prevent the applicability of the LCP provisions. Thus, in the event there are unfair terms in adhesion contracts, contracts executed with persons providing water, communication, electricity, gas or similar goods and services, such terms shall also be subject to the provisions of the LCP7.

Evaluation of the Unfairness of a Term

Art. 5 LCP regulates the method of evaluating whether a contract term is unfair or not. Accordingly, the unfairness of a contract term shall be determined based on the time of execution of the contract. The characteristics of the relevant good or service, the conditions present at the time of execution, and the provisions of the contract as well as other relevant contracts shall be taken into consideration in determining the unfairness. As explained above, there is an unfair term in the presence of an imbalance between the parties which is not coherent with the good faith principle; thus the LCP enumerates certain criteria which need to be taken into consideration when assessing such imbalance. As it is stated in the legislative justification, a contract term may be individually regarded as unfair, but when taking the contract as a whole, it may be accepted as fair.

In short, all these data should be taken into consideration in determining whether there is an imbalance between the parties as of the date of execution of the contract. In the event of an imbalance occurring after the date of execution, such imbalance shall not be regarded within the scope of Art. 5 LCP, but, if the conditions are met, within scope of the rebus sic stantibus principle instead.

Furthermore, the freedom of contract principle shall not be neglected. For this reason, Art. 5/7 explicitly states that the balance between the main obligations of the parties, or the balance between the actual price and the contractual price of the relevant good or service, should be disregarded in assessing whether a contract term is unfair or not. As long as the contract is clear and comprehensible, no intervention shall be made as to the balance of obligations of the parties, and the "actual price" should not be determined.

Secondary Legislation

The LCP authorized the Ministry to issue secondary legislation in order to determine the procedures and principles for avoiding the inclusion in contracts and application of unfair terms, and the inspection thereof. As of the date of this article, the Ministry has not yet issued the secondary legislation. Pursuant to provisional Art. 1/3 LCP, until the entry into force of the regulations foreseen under the LCP, the provisions of the secondary legislation enacted under the fLCP not in contradiction with the LCP shall continue to apply. The Regulation issued pursuant to the fLCP shall therefore apply regarding unfair terms until the secondary legislation is issued in line with Art. 5 LCP.


The fLCP provided the initial legal framework for general transaction terms by regulating unfair terms in consumer contracts. However, as general transaction terms cause material problems, not just for consumers but also for merchants, the TCO regulated general transaction terms governing all types of contracts. In order to establish an efficient method of consumer protection, the LCP provides for a more detailed provision governing unfair terms in consumer contracts. Thus, the LCP aims to enforce the rights of the consumer, who usually has to choose between accepting the unilaterally prepared terms and renouncing the contract as a whole. Unfair terms resulting in an imbalance between the parties to the detriment of the consumer and in violation of the good faith principle are invalid, however the remainder of the contract shall continue to be effective. The counterparty may not request to not be bound by the contract in the absence of the unfair term.


1 Draft Law on Consumer Protection, General Legislative Justification ("Justification"), http://www2.tbmm.gov.tr/d24/1/1-0787.pdf (accessed on 20 May 2014).

2 See Alper Uzun, The New Consumer Law Has Entered Into Force, http://www.erdem-erdem.av.tr/en/articles/the-new-consumer-law-has-entered-into-force/ (accessed on 30 May 2014); Ceyda Büyükoral, Provisions Regarding Defective Goods In The Law On Consumer Protection No. 6502, http://www.erdem-erdem.av.tr/en/articles/provisions-regarding-defective-goods-in-the-law-on-consumer-protection-no-6502-2/ (accessed on 30 May 2014); Pelin Baydar, Provisions Regarding Defective Services In The Law On Consumer Protection No. 6502, http://www.erdem-erdem.av.tr/en/articles/provisions-regarding-defective-services-in-the-law-on-consumer-protection-no-6502/ (accessed on 30 May 2014).

3 For detailed information on general transaction terms, see Berna Aşık Zibel, The Concept Of "General Transaction Terms" And Its Implications Under New Code Of Obligations, http://www.erdem-erdem.av.tr/en/articles/the-concept-of-general-transaction-terms-and-its-implications-under-new-code-of-obligations/ (accessed on 30 May 2014).

4 Justification, art. 5.

5 Prof. Dr. İ Yılmaz Aslan, Tüketici Hukuku Dersleri, 2006, p. 180.

6 Published on the Official Gazette dated 13.06.2003 and no. 25137.

7 Justification, m. 5/5.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Herguner Bilgen Ozeke Attorney Partnership
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Herguner Bilgen Ozeke Attorney Partnership
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions