ABSTRACT
General loan contracts have emerged as a result of the effort to create a uniform contract which includes all the services offered by the banks and meets all the needs of the banks. In order to prevent unfair results arising from such uniform contracts which thereby grant broader rights to, inter alia, the banks, it has been aimed by the legislature to provide protection to the counterparty by comprehensively regulating the concept of general transaction conditions in the laws. The provisions which have been prepared by the drafting party beforehand to ensure their application in numerous similar contracts in the future and submitted to the counterparty are referred to as the general transaction conditions. It has thus been regulated to impose various sanctions on such provisions, particularly the one that subjects them ‘to be deemed unwritten’. It is clear that the provisions of the general loan contracts must also be analyzed under the scope of the concept of general transaction conditions.
I. INTRODUCTION
The concept of general transaction conditions that existed in Western legal systems for almost a hundred years had only took place in the Law on Consumers’ Protection numbered 4077 in our country, until the Turkish Code of Obligations numbered 60981 (“TCO”) came into force. Though, the concept of general transaction conditions being applied solely to the consumer contracts had been deemed a deficiency. Following the entry into force of the TCO in 2012, the general provisions regarding general transaction conditions have entered into our legal system and become applicable to all private law contracts. General loan contracts, which are typical private law contracts when the parties and the content of such contracts are considered, are also covered by provisions relating to general transaction conditions.
Many provisions of general loan contracts which are unilaterally prepared by the banks and which impose heavily unfavourable terms on the customer appear to contain the elements stipulated for general transaction conditions in the TCO. Resulting from the consideration of a provision as a general transaction condition, several sanctions including to be deemed unwritten may come up. For this reason, the provision which is alleged to be a general transaction condition needs to be scrutinized extensively within the framework of the elements introduced by law and the doctrine. In this respect, it is possible to say that many of the provisions in the general loan contracts are in need of such an evaluation.
In this study, primarily, the concept of general transaction conditions and its elements will be discussed. Afterwards, the nature of general loan contracts will be evaluated and the provisions granting to the banks the opportunities to unilaterally terminate the general loan contract will be examined. In the last chapter, unilateral termination clauses will be evaluated within the framework of the opinions on the nature of general loan contracts and the validity of such provisions based on the contract types will be analyzed in the light of the doctrine and the decisions of the Court of Cassation.
II. CONCEPT OF THE GENERAL TRANSACTION CONDITION
A. Definition and Elements
In paragraph 1 of Article 20 of the TCO, the general transaction conditions are defined as “the provisions which are prepared by the drafting party beforehand, in order to use them in a number of similar contracts in the future and submitted to the counter party, when entering into a contract”. Although the legal definition is in this manner, it is seen that different definitions have been made for the general transaction conditions in the doctrine. For instance, in a more comprehensive definition, the general transaction conditions are expressed as “contract terms which are unilaterally prepared in a general and abstract manner in order to constitute the content of numerous contracts of the same type to be made in the future and on which one of the parties depend and wishes to include in the content of the contract without any negotiation”2.
At this stage, the definitions of general transaction conditions in Western legal systems should also be reviewed. Indeed, in some decisions of the Court of Cassation regarding general transaction conditions, especially in those that were given before the the TCO entered into force, it can be seen that the references on the subject were made to Western legal systems such as German and Swiss law3. In this context, for instance as far as the definition of the general transaction conditions in the German Civil Code is considered, it will be understood that a narrow range definition is preferred which reads as follows: “the general transaction conditions are the contractual conditions which are pre-formulated for numerous contracts and which are submitted by one party of the contract (user of the general transaction conditions) to the other party in the course of forming a contract”4.
As it is understood from the definitions given by the law and the doctrine, such provisions have to bear some elements in order to refer to the existence of general transaction conditions. These elements may be listed as three items:5 (i) Unilateral preparation, (ii) Contemplation prior to the formation of the individual contract, and (iii) Contemplation in a general manner to apply in more than one contractual relationship. These elements are separately explained below.
1. Unilateral Preparation
In order to refer to the existence of general transaction conditions in a contract, the provisions must be unilaterally prepared. By the term of ‘unilateral’, it is meant that the opposing party is not involved in the preparation of the contract6. Otherwise, the parties will negotiate the provisions of the contract and such provisions will not be considered as general transaction conditions. In other words, if the terms of the contract are separately negotiated and discussed between the parties, the presence of general transaction conditions will not be argued7. In this context, it is possible to say that many provisions in general loan contracts are prepared unilaterally without being negotiated.
2. Contemplation Prior to the Formation of the Individual Contract
A contract being prepared beforehand by the drawer indicates that the contract is not prepared for a concrete contractual relationship. In other words, the party using the general transaction conditions is not in an effort to form a contract specifically for an existing legal relationship. On the contrary, all possibilities of the legal transactions to be conducted in the future have been taken into consideration and the drafting party secured himself in every respect. For this reason, framework contracts, such as general loan contracts, include provisions which are irrelevant to the present legal relation ship. Likewise, banks form a uniform contract covering all of their services and carry out all kinds of credit transactions through these contracts. For this reason, the preparation of the general transaction conditions beforehand without an existing legal relationship is also applicable for general loan contracts.
3. Contemplation in a General Manner to Apply in More Than One Contractual Relationship
The general transaction conditions are abstract provisions addressing to the entire potential target group for the contractual relationship in the future, regardless of the concrete case. For this reason, it is seen that the party drawing up the contract uses general provisions in order to assure a certain standard in the contracts. In other words, the “general” nature of the general transaction conditions means the counterparty of the contract is not named and the conditions have been prepared without considering a particular person8. Correspondingly, it appears that there are general provisions in general loan contracts which will have the same results, regardless of who the counterparty of the contract is.
As a natural consequence of the elements discussed above, the general transaction conditions are drafted to be used in similar contracts to be executed in the future. In other words, the unilateral and beforehand preparation and hence standardization of contracts will result in application of provisions qualified as general transaction conditions to numerous similar legal transactions. Of course, the general transaction conditions prepared for such purpose may not have been actually used in those similar contracts. However, the essential point here is that the general transaction conditions bear the “purpose” of being used in numerous similar contracts and to contain necessary provisions to serve this purpose9. Similarly, there is no necessity for a general transaction condition to be used with the same wording in future contracts. In this respect, paragraph 2 of Article 20 of the TCO states that “The texts of contracts prepared for the same purpose being not identical does not prevent the provisions of these contracts to be considered as general transaction conditions”. By this means, the drafting parties are not allowed to hold themselves somewhat immunized from the control of a general transaction condition, by making minor changes.
B. Control of General Transaction Conditions
Under Article 21 of the TCO, inclusion of those general transaction conditions that serve against the counterparty’s interests in the scope of the contract depends on informing the other party expressly about the presence of such terms and providing opportunity to learn the content of such terms by drafting party and acceptance of such terms by counter party. Otherwise it is possible for the general transaction conditions to be deemed as not written. Correspondingly, according to the second paragraph of the same article, the general transaction conditions which are unfamiliar to the nature of the contract and the characteristic of the business will also be deemed unwritten.
As to what is meant with the phrase of being deemed unwritten, the prevailing doctrine view in Turkish law suggests that it was meant to refer to the sanction of non-existence10. On the other hand, the reasoning of Article 25 of TCO explains that “There is no doubt that the adverse party of the contract may enjoy the respective provision.” It can be observed that Article 25 has no explicit reference to the phrase of ‘being deemed unwritten’, although such article also covers the general transaction conditions that cannot be claimed against the client.
In fact, Seza Reisoğlu submits her opinion on this subject as follows; “The phrase of being deemed unwritten is a deceptive one, since it means invalidity of those general transaction conditions and disregard thereof within the contract. Indeed, the respective contract provisions are not actually invalid; however, they cannot be asserted against the adverse party (client) of the contract.”11. Accordingly, it may be assessed that the contract provisions that includes general transaction conditions are not resulted in non-existence; but they are of the nature that may be applied and enjoyed by the adverse party only.
Following the determination that the general transaction conditions taking place in the contract are acceptable to be within the scope of the contract (operation control), the interpretation control and content control will come up. Pursuant to Article 23 of the TCO, in the event that a provision under the general transaction conditions is not clear and understandable or has more than one meaning, such provision should be interpreted against drafting party and in favour of the other party. The approach of interpretation which is based on the principle of trust is also in compliance with Western legal systems. Likewise, the principle of interpretation against drafting party is also adopted by German law with regards to general transaction conditions12.
The content control of general transaction conditions is conducted within the scope of Articles 24 and 25 of the TCO. It is envisaged by the unilateral amendment prohibition stipulated in Article 24 that the provisions which empowers the drafting party to unilaterally amend the contract terms or to impose new provisions will be deemed unwritten. As a second type of content control, in Article 25, it is stipulated that the provisions which are to the detriment of the other party or which aggravate the position of the other party in a manner contrary to the good-faith principle cannot be placed among general transaction conditions. Accordingly, in the event of determining that a provision contrary to the good faith principle within the scope of Article 2 of the Turkish Civil Code13 is present in the general transaction conditions, such provision shall be deemed invalid. The type of invalidity is partial nullity. For this reason, general transaction conditions other than the ones which are determined to be invalid, remains valid14.
This is generally the case with the regulations and doctrines regarding the general transaction conditions. In this context, it will be appropriate to examine the nature of the general loan contract and its position in our legal system before evaluating unilateral termination clauses.
III. THE NATURE OF THE GENERAL LOAN CONTRACTS
Nowadays, the diversity of the services offered by the banks seems to increase. Accordingly, specific provisions are drafted for each service and these provisions are added to general loan contracts. It is known that the effort to create a uniform contract which meets all the needs of the bank results in the execution of broad-range general loan contracts. Although the service provided by the bank through general loan contracts is, in the most general expression, a loan disbursement service; the nature of the contract varies due to the change of the characteristic performance of the contract, namely the way of extending a loan. In today’s banking system, it is known that there are tens of loan types classified by different aspects. However, the ones which operate as current account loans and those that are in the form of loan for consumption contracts are more commonly applied loans, compared to the other types.
A. Current Account Contract View
The type of loan that emerges as a result of adapting the current account agreement which is regulated in Article 89 and subsequent articles of the Turkish Commercial Code15 (“TCC”) to a loan transaction is referred as debtor current account credit, in practice. The debtor current account credit can be defined as a loan which is provided within a certain limit and which allows the borrower, differently from the fixed-term loan, to take out as much money as he wishes - within limits – and in return of such freedom of the borrower, the bank has the chance to cease the loan at any time at its own discretion and apply interest thereto at varying rates16. In this type of loan, the customer can use loan at different times,
make repayments, and re-use the amounts it has paid as loan. For this reason, this type of loan is also called as revolving credit17. There are disagreements on the doctrine whether this loan type should be accepted as a current account contract. Yet, as a result of a loan contract to be qualified as a current account contract, the provisions of law to be applied to the contract may change.
According to an opinion, in the banking practice it is possible to make an indefinite current account contract and give the power to the bank to make the debt due by terminating the contract at will18. The termination power referred hereto is based on the notice of termination, which is defined under Article 98 of the TCC and is one of the events of termination of the current account contract. According to another view in the same aspect, under the loan for consumption contract, when the borrower repays the borrowed amount, the loan for consumption terminates. However, under the credits that operate as current account, the borrower can draw the money it has paid numerous times provided that such remains within the limits of the loan extended19. For these reasons, it is argued that the current account provisions in TCC can be applied to the credits that operate as current accounts.
According to the contrary view, when the functions and elements of the current account contract are examined, it is understood that the credits that operate as current account are not in the nature of current account contracts20. In other words, the general loan contract which is executed for the current account loan does not contain the elements of a current account contract. Moreover, it is seen that the Court of Cassation has also made decisions stating that the loan contracts in the form of current account are deemed to have been the loan for consumption contracts21.
B. Loan for Consumption Contract View
Crediting transaction, which is expressed as lending money in the most basic sense, is qualified as a loan for consumption contract with this aspect22. Likewise, the loan for consumption contract is defined as “a contract in which the lender transfer some money or something that can be consumed to the borrower and the borrower undertakes to give such thing back in the same amount and quality” in Article 386 of TCO. In a loan relationship, the bank’s basic obligation is to transfer the money’s ownership, while the borrower’s basic obligation is to repay the money after a certain time, in line with the legal definition of a loan for consumption contract. In addition, by the decisions of the Court of Cassation and other grounds, it is argued that the general loan contract is a loan for consumption contract. However, when the diversity of loan types is considered, it seems unlikely to qualify general loan contracts solely as loan for consumption contracts. Whereas the lender undertakes to lend money or something else temporarily to the borrower in a loan for consumption contract, the obligations of the parties in the loan contract are numerous and more qualitative. The loan for consumption contract view is inadequate to clarify the transactions other than the cash loan such as non-cash loans namely surety, guarantee, Aval and the discount transactions and said view leaves such transactions out of the scope23.
In this framework, if a general loan contract is qualified as a loan for consumption contract, as per Article 392 of the TCO, it can be decided that the loan will be due by the demand of the lender. Within this context, the power of the bank to unilaterally terminate the general loan contract and cause the repayment become due and payable, pursuant to the said article will be discussed in the following sections.
C. Other Views
Due to the nature of the service provided by the bank under general loan contracts, there are some cases where the current account contract view and the loan for consumption contract view fail short to explain the type of loan. For example, non-cash loans can be extended based on either of the said two types of contracts. However, according to the types of non-cash loans, additional obligations are imposed on the parties and the provisions of the law related to the above-mentioned opinions are insufficient to regulate such multi-faceted relations. For instance, a letter of credit loan, which is a type of non-cash loan, establishes a proxy relationship between the bank and the borrower as well as a credit relationship24. Likewise, the letter of credit is a payment instrument bearing the nature of a remittance order25. When, as another kind of non-cash loan, letters of guarantee are concerned, it has gained certainty by the decision of decisions on the unification of conflicting judgments of the Court of Cassation26 that the letter of guarantee of the bank is qualified as a guarantee contract for the third party, namely the addressee27.
Apart from the above, it is also seen in the doctrine that general loan contracts are qualified in other manners such as the promise of loan for consumption contract, the mixed contract, the multi-stage sui generis contract and the service agreement, concerning. For example, according to the service agreement view, loan contracts are banking-related service contracts that also grant the power to use cash or non-cash loans from banks up to a certain amount28. This view suggests that the general loan contract is subject to the special provisions of the TCO regarding proxy, in terms of its approach to the legal nature of the general loan contract29 In the framework of these views, it does not seem possible to make a definite judgment on the nature of general loan contracts.
IV. RIGHTS OF BANKS REGARDING TO THE TERMINATION OF THE CONTRACT UNDER GENERAL LOAN CONTRACTS
All of the general loan contracts currently used by banks contain unilateral provisions that grant broader powers to the bank. Although such provisions vary from bank tobank, it appears that provisions regulating the unilateral right of termination of the bank are included in all general loan contracts. This provision which gives the banks the power to terminate the contract unilaterally and to cause the repayment become due and payable can be considered as one of the most controversial provisions of general loan contracts. Sometimes such provisions are drafted in a manner to provide the bank with a direct right of termination. On the other hand, in some other contracts, there are provisions which allow banks to cause the repayment become due and payable without termination or to inactivate the contract. The said rights of the banks will be examined in three subheadings.
A. The Right to Terminate the Contract
The banks secure themselves against risks through the right of termination which they explicitly reserve in the contracts. In the system which is called the recall of the loan in practice, the banks may terminate the loan relationship without being bound by any time constraints and incurring any contractual sanction. Along with the recall of the loan, the debt becomes due. Although the use of this right is often linked to certain conditions based on the formation of the clause, it is often seen that banks tend to equip themselves with an unlimited termination power. Further in some contracts, it appears that there are provisions as to the waiver of the debtor of his right of objection to the termination. The validity of such provisions according to the way of the given termination right shall be examined in the next section; however, assuming that these provisions are valid, the loan repayment, along with all secondary rights arising therefrom will become due and payable upon termination. It should also be noted that, starting from the due date, the bank will have the right to claim a default interest over the entire amount that became due accordingly.
B. The Right to Cause the Repayment Become Due
In some general loan contracts, it is seen that provisions regarding making the debt due without terminating the contractual relationship take place. In other words, even if the banks cause the repayment become due by ceasing the current account or demand the repayment before its agreed due date from the borrower, the contract stipulates that the contractual relationship between the parties will continue. Since the borrower is able to repay and draw multiple times within the limit granted in current account credits,30 it may be accepted as usual that a general loan contract executed in this manner to remain in force after the repayment. However, in the spot / term loans (the loans which are qualified as a loan for consumption contract are generally spot/term loans) in which the repayments cannot be drawn again as loan, it is pointless to continue the contractual relationship after the repayment of debts. In the loan for consumption contract, the contractual relationship between the parties terminates when the borrowed money is returned31. We are of the opinion that there is no point to maintain a contractual relationship where the parties no longer have any obligation to each other. In addition, Court of Cassation stated in a decision that ceasing the current account subject to a loan contract would mean termination of the contract32.
C. Other Rights Removing the Claimability of the Performance
While some of the provisions commonly seen in general loan contracts do not grant the direct right of termination to the banks, the banks may avoid its obligation of lending money by such provisions. For instance, in general loan contracts, the power of disposition over the loan limits is granted to the banks. Within the scope of such power, banks have the right to cancel the limit partly or wholly without being obliged to ground it on a just cause. In such cases, the debtor shall not demand the performance of the obligations from the bank even though the contract is still in force. In the event that the bank exercises the said right, the contract will not be terminated but the applicability of it will be suspended. For this reason, it may be argued that such terms are also subject to control in terms of general transaction conditions and could be subject to sanction of being deemed unwritten.
V. EVALUATION OF THE RIGHT OF UNILATERAL TERMINATION
The provisions regulating the right of unilateral termination will be examined under two headings according to the manner in which they are stipulated: rightful termination and unconditional termination. Also, validity of such provisions will be separately evaluated in terms of the nature of the general loan contracts and within the framework of general transaction conditions.
A. Rightful Termination
Although it is known that the provisions granting the right of unilateral termination to the banks are present in most of general loan contracts, the use of such right is held conditional upon several terms in some of the contracts. Pursuant to such provisions, the banks will have the right to terminate the contract and cause the debt become due and payable in the event of a fluctuation in the market, deterioration of the debtor’s financial situation, failure of performance of contractual obligations or occurrence of such other condition, which conditions are drafted rather comprehensively. In fact sometimes, provisions stating that the debt will automatically become due and the debtor will be deemed in default upon the occurrence of one of the said condition are placed in contracts. The purpose behind such provisions are explained as to enable the banks to take precautions against sudden changes and negativities which may occur in the national economy, or in the debtor’s financial situation or ability to pay; and to survive the contractual bond when necessary33. Within this context, it will be appropriate to make an evaluation based on each type of the loan to be used and the nature of the general loan contract.
Accordingly, should a general loan contract for a credit that operates as current account be assessed; the provisions which are unfamiliar to the nature of the contract and the characteristic of the business will be deemed unwritten as per the second paragraph of Article 21 of the TCO. Within this framework, it has been envisaged that the other provisions of such general loan contract that are related to other types of loans should be deemed unwritten. The contract, with the remaining terms, should be approached from the perspective of the special provisions of TCC regarding current account contracts and such provisions should be applied by analogy34. Within this context, as per paragraph 1/(b) of Article 98 of the TCC, unless the terms of the current account contract is specifically agreed thereon, it will be terminated via notice of a party to another. In a world where the contract can be terminated upon the termination notice of a paty without it being subject to any other condition, it should be naturally possible to terminate it also by cause.
Regarding the contracts qualified as loan for consumption contracts, the views concerning the rightful termination under the Law of Obligation should be examined. The rightful termination or extraordinary termination means unilateral termination of the contractual relationships with definite or indefinite term via unilateral declaration of the intention upon occurrence of just causes35. Although it is explicitly regulated in law that which situations will be deemed as a just cause for some type contractual relationships, there is not a general definition for the just cause. For this reason, the concept of “unbearableness” has been adopted in our law system which argues that, if a contractual relationship created an unbearable situation for the parties, the right to terminate by the way of extraordinary termination should be granted to the parties36.
In our law system, in case of termination by cause, the addressee of the notice may ask the drawer to clarify his reason of termination. If the drawer fails to do so, the addressee may prevent the effect and consequences of termination notice by returning it. Similarly, the addressee may claim and prove that the given reasons do not exist or are not sufficient37. For this reason, specifying the just causes which results in termination of the contract becomes significant in terms of such possible disputes which may arise after termination. In the event of a termination following the occurrence of one of the reasons specified in the general loan contract, it will be sufficient for the bank to state that it has grounded the termination on the relevant provision thereof. The debtor’s right of objection will then be limited with the argument as to whether the said circumstance causing the termination has actually occurred. For instance, if deterioration of the debtor’s financial situation is stipulated as a just cause for termination in a general loan contract and the bank terminates the contract by putting forward such reason, the debtor cannot claim that it is not a valid reason to terminate the contract. In our opinion, the debtor can only object to termination by claiming that its financial situation has not been deteriorated, since the parties had already agreed on the circumstances to be deemed as just causes for termination in the contract. Otherwise, in the event of termination of a contract in which the just causes are not stipulated, the judge will examine as to whether the circumstances constituted a just cause within the framework of concrete case based on his power of discretion38. In brief, it is thought that the rightful termination clauses of a contract which is qualified as a loan for consumption contract should be valid. However, even in this case, provisions which are to the detriment of the other party or aggravate the position of the other party in a manner contrary to the good faith principle cannot be placed among general transaction conditions, as per Article 25 of TCO. Sanction to be imposed on such provisions is absolute nullity, pursuant to Article 27 of TCO. As an example; if debtor’s entering into a contractual relationship with another bank is stipulated as a reason for termination, we are of the opinion that such provision should be deemed null as per article 27, since it restricts the liberty to contract.
B. Unconditional Termination
The provision regarding unilateral termination right, which is the most controversial one among the provisions of the general loan contract, is considered to be the most dangerous provision of the general loan contracts39. It should be considered that, during the economic crisis periods in recent years, recall of the loans on the grounds of such terms triggered more the crisis by causing the companies to deteriorate40. For this reason, the said provision should be subject to the content control within the framework of general transaction conditions.
Regarding the credits which operate as current account, under the view which argues such contracts should be subject to the provisions of current account contract, our explanations in the previous section will apply here as well. In other words, within the scope of Article 98 of TCC, in the event that the term of contract is not decided in the current account contract, it shall terminate via a termination notice of one of the parties and the balance shall become due. At this point, although in the doctrine some jurists allege otherwise, it should be emphasised that contracts regarding the current account credit are not accepted as current account contract by the Court of Cassation and they are qualified as loan for consumption contracts. Within this context, the Court of Cassation obviously does not perceive Article 98 of TCC as the ground for unilateral termination right of the banks. On the other hand, Article 392 of TCO regarding the loan for consumption states as follows: “regarding the return of the borrowed, if a certain date or a notification period is not determined or it is not decided that the debt will be due at the time of request, the borrower is not obliged to return the borrowed unless six weeks have passed starting from the first request”. As understood from the provision, in the loan for consumption contract, it is possible to agree that the debt will become due by the time it is requested. However, it has been accepted in the doctrine that the bank should grant an appropriate time to the other party when exercising such right41.
In addition to the views arguing that the provisions which grant the right of unconditional termination to the bank is valid, there are some authors who argue that such provisions are not valid for several reasons. According to a view, such provisions should be dealt with the approach that “unusual and surprising reservations are not included in the scope of the contract” in the theory of general transactions conditions42. The equivalent of the term “unusual and surprising reservations” in the TCO is regulated as “general transactions conditions which are unfamiliar to the nature of the contract and the characteristics of the business” in Article 2143. According to the authors who support this view, the provisions regarding the bank’s ability of ceasing the account and terminating the loan relationship at any time it wills, without giving any reason should be deemed unwritten44.
Another view concerning the invalidity of unilateral termination argues that the said provisions should be deemed null since they immorally limit the freedom of economic activity which is one of the personal rights45. This view is in the minority and according to the view of the majority, such provisions are valid, but the right of termination of the banks should be limited. The criterion for such limitation is the good faith and prohibition of abuse of rights. In other words, banks may terminate the contract whenever it wishes; however; they should act in accordance with the good faith and not abuse their termination right46. In parallel with this view, the Court of Cassation has adopted the criteria of good faith and prohibition of abuse of rights regarding the use of termination right47. In this decision which was given regarding the termination of a general loan contract that operated as a current account contract, it was stated that the termination of the said contract was not qualified as limitation of the liberty of economic activity. Within this context, it has been concluded that the provisions related to unconditional termination are valid, provided that the right of termination is used within the limits drawn by the good faith principle in Article 2 of the TCC. Additionally, in another decision of the Court of Cassation, it was stated that the indefinite-term loan contracts could be terminated pursuant to Article 18/3 of the TCC48.
In the light of foregoing, one will conclude that the provision regarding unilateral termination by bank is valid regardless of whether the general loan contract is qualified as a current account contract or a loan for consumption contract; however, the use of the said rights is in practice limited within the framework of the good faith principle. Otherwise, the application of such provision will be deemed an abuse of right by the bank which will not be protected by laws49. As a result, the termination may be deemed invalid and the bank may be responsible for the damages incurred by others because of the termination50.
VI. CONCLUSION
In this study, views in doctrine and provisions regarding the general transaction conditions have been examined, nature of the general loan contracts have been discussed, the rights of banks to unilaterally terminate the general loan contracts have been analysed and the validity of those provisions that regulate the right of termination of the banks are evaluated in various aspects. General transaction condition regulated in TCO are in the most basic terms, defined as contractual terms which are unilaterally prepared in a general and abstract manner in order to constitute the content of numerous contracts of the same type, to be made in the future and where one of the parties depend on and wishes to include in the contract without having to conduct any negotiations thereon. The provisions which bear the elements in the definition are subject to operation control in order to decide as to whether such provisions should be deemed included in the scope of the contract, according to Article 21 of TCO. Afterwards, interpretation control and content control will be conducted in order to determine if such provisions are subject to any sanction. This way, it has been aimed to protect the balance between the parties of a contract.
When it comes to the nature of general loan agreements, there are views which suggest to qualify the a general loan contract based on its type in which the credit is used and to assure application of different provisions of the law accordingly. Within this context, it has been concluded that, from the aspect of the Court of Cassation, general loan contracts would be qualified as the loan for consumption contract in practice, whereas there are other views which argue that the provisions of the TCC regarding the current account contract should be applied to the contracts of credits that operate as a current account.
In connection with the rights granted to the banks in the general loan contracts, it has been understood that, alongside the right of unilateral termination, banks would hold other rights which have similar effects to each other. As a result of bank’s ceasing the account, causing the debt become due and payable or cancelling the limit at any time at its discretion, the performance of the contract will not be demanded, although it was seemingly in force. Additionally, despite the existence of provisions to the contrary in the contracts, causing the debt becoming due by ceasing the account will result in termination, according to the Court of Cassation.
It has thus been concluded that the provisions regarding the rightful termination of the general loan contract by banks should be in principle, valid. However it is possible to conduct a content control under the general transaction conditions regarding the scope of such provision and to exclude some of the circumstances. The provisions which grant the right of unconditional termination are, on the other hand, controversial. Some of the authors argue that such provisions are invalid under the theory of general transaction conditions. Another view in this aspect points as the reason for invalidity, to the limitation of the liberty of economic activity. However, the Court of Cassation adopts the view that the provisions which grant the right of unconditional termination are not qualified as limitation of liberty of economic activity and they are valid, but such right should be used within the framework of the good faith principle. The majority of in the doctrine also supports the Court of Cassation’s such view.
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Mehmet Ayan, Borçlar Hukuk Genel Hükümler, Ed. 7, Konya 2012
Mustafa Arıkan, “6098 Sayılı Türk Borçlar Kanunu’nda Genel İşlem Koşulları”, Prof. Dr. Cevdet Yavuz’a Armağan, Ed. 2, Istanbul 2012. Nihat Yavuz, “Genel İşlem Şartlarının Tanımı, Yorumu ve Denetlenmesi”, Yargı Dergisi, V. 25, Jan – Apr 1999, N.1-2
Onur Yalçın, Banka Kredi Sözleşmelerindeki Genel işlem Şartlarının Geçerliliği, Ankara 2006
Özer Seliçi, Borçlar Kanununa Göre Sözleşmeden Doğan Sürekli Borç İlişkilerinin Sona Ermesi, Istanbul 1976
Pınar Altınok Ormancı, Sürekli Borç İlişkilerinin Haklı Sebeple Feshi, Doctoral Thesis, Ankara University, Institute of Social Sciences, Department of Private Law, Ankara 2011
Sabih Arkan, Ticari İşletme Hukuku, 17th Ed. Ankara 2012 Selahattin
Sulhi Tekinay/ Sermet Akman/ Haluk Burcuoğlu/ Atilla Altop, Borçlar Hukuku Genel Hükümler, Ed. 7, Istanbul 1993
Sinem Camcı, Genel İşlem Koşulları, Istanbul Commerce University, Institute of Social Sciences, Department of Private Law, Istanbul 2014
Şener Akyol, “Banka Sözleşmeleri”, Ord. Prof. Dr. Kemalettin Birsen’e Armağan, Istanbul 2001
Türkay Alıca, “Türk Hukukunda Banka Genel Kredi Açma Sözleşmesi”, Unpublished Master Thesis, Istanbul University Institute of Social Science, Istanbul 1990
Ünal Tekinalp, Türk Mali Kurumlar Hukuku I: Bank Hukukunun Esasları, Istanbul 1988
Vahit Doğan, Uluslararası Ticarette Ödeme Aracı Olarak Akreditif, 3rd Ed. Ankara 2012
Yeşim Atamer, Sözleşme Özgürlüğünün Sınırlandırılması Çerçevesinde Genel İşlem Şartlarının Denetlenmesi, 2nd Ed. Istanbul 2001
FOOTNOTE
1 Turkish Code of Obligations (TCO), Official Gazette (OG) dated 04.02.2011 and numbered 27836.
2 Adem Yelmen, Türk Borçlar Kanunu’na Göre Genel İşlem Şartları, Ankara 2014, p. 47.
3 The Court of Cassation, 3rd Civil Chamber (CC), dated 02.06.1998, numbered E. 1998/4263, K. 1998/6098.
4 Yelmen, p. 48; BGB §. 305/(1).
5 For the views which prefers a clasification based on four items please see: Yelmen, p. 52; Sinem Camcı, Genel İşlem Koşulları, Master Thesis, Istanbul Commerce University, Institute of Social Sciences, Istanbul 2014, p. 9.
6 Mustafa Arıkan, “6098 Sayılı Türk Borçlar Kanunu’nda Genel İşlem Koşulları”, Prof. Dr. Cevdet Yavuz’a Armağan, Istanbul 2012, Ed. 2, p. 70.
7 Selahattin Sulhi Tekinay/ Sermet Akman/ Haluk Burcuoğlu/ Atilla Altop, Borçlar Hukuku Genel Hükümler, Ed. 7, Istanbul 1993, p. 157.
8 Nihat Yavuz, “Genel İşlem Şartlarının Tanımı, Yorumu ve Denetlenmesi”, Yargı Dergisi, V. 25, Jan. – Apr. 1999, N. 1-2, p. 572.
9 Yelmen, p. 55.
10 Ahmet M. Kılıçoğlu, Borçlar Hukuku, Genel Hükümler, Ed. 17, Ankara 2013, p. 119; M. Kemal Oğuzman/ M. Turgut Öz, Borçlar Hukuku Genel Hükümler, V. 1, Ed. 16, Istanbul 2016, p. 165; Mehmet Akçaal, “Borçlar Kanununun Genel İşlem Koşullarına Dair Hükümleri Hakkında Bir İnceleme”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, V. XVIII, N. 1, Ankara 2014, p. 56; Mehmet Ayan, Borçlar Hukuku Genel Hükümler, Ed. 7, Konya 2012, p. 150;
11 Seza Reisoğlu, Banka Uygulamaları Açısından Yeni Borçlar Kanununun Genel İşlem Koşulları ve Eleştirileri, web site: https://www.tbb.org.tr/ Dosyalar/.../SR_Borclar_Kanunu_Genel_Islem_Sartlari. doc (Last access: 02.05.2017)
12 Schulze / Schulte-Nölke, BGB §. 305 c Rn. 4. cited from Akçaal, p. 60.
13 Turkish Civil Code, OG dated 08.12.2001 and numbered 24607.
14 Fikret Eren, Borçlar Hukuku Genel Hükümler, Ed. 14, Ankara 2012, p. 222.
15 Turkish Commercial Code (TCC), OG dated 14.02.2011 and numbered 27846.
16 Onur Yalçın, Banka Kredi Sözleşmelerindeki Genel işlem Şartlarının Geçerliliği, Ankara 2006, p. 25.
17 Mahmut Bilgen, Banka Hukukunda Sözleşmeler Uyuşmazlıklar Hukuki Sorumluluk, Ankara 2011, p. 121.
18 Sabih Arkan, Ticari İşletme Hukuku, Ed. 17, Ankara 2012, p. 370.
19 Yalçın, p. 26.
20 Davut Gürses, Banka Genel Kredi Sözleşmesi, Istanbul 2016, p. 77.
21 The Court of Cassation General Civil Assembly, dated 20.10.1978, numbered E.1977/11-213, K.1978/856; The Court of Cassation 19th CC, dated 26.06.1997, numered E.1997/4575, K.1997/6637.
22 Heinrich Honsell, Schweizerisches Obligationenrecht Besonderer Teil, 3. Aufl., Bern 1995 cited from Fahrettin Aral, Borçlar Hukuku Özel Borç İlişkileri, Ed. 5, Ankara 2003, p. 136,
23 Gürses, p. 44.
24 Vahit Doğan, Uluslararası Ticarette Ödeme Aracı Olarak Akreditif, Ed. 3, Ankara 2012, p. 88.
25 Doğan, p. 29.
26 The Court of Cassation, Joint Chambers, dated 11.06.1969, numbered 1969/4 E., 1969/6 K.
27 Akın Ekici/ Nihayet Durukanoğlu, Türk Hukukunda ve Bankacılık Uygulamasında Teminat Mektupları, Istanbul 2016, p. 43.
28 Gürses, p. 59
29 Yalçın, p. 35.
30 Şener Akyol, “Banka Sözleşmeleri”, Ord. Prof. Dr. Kemalettin Birsen’e Armağan, Istanbul 2001, p. 91
31 Yalçın, p. 34.
32 The Court of Cassation, General Civil Assembly, dated 10.04.2002, numbered E.2002/19-266, K.2002/264.
33 Ahmet Battal, Güven Kurumu Nitelendirmesi Işığında Bankaların Hukuki Sorumluluğu, Ankara 2001, p. 242.
34 Yalçın, p. 112; Yeşim Atamer, Sözleşme Özgürlüğünün Sınırlandırılması Çerçevesinde Genel İşlem Şartlarının Denetlenmesi, Ed. 2, Istanbul 2001, p. 277.
35 Pınar Altınok Ormancı, Sürekli Borç İlişkilerinin Haklı Sebeple Feshi, University of Ankara, Doctoral Thesis, Institute of Social Sciences, Department of Private Law, Ankara 2011, p. 96.
36 Özer Seliçi, Borçlar Kanununa Göre Sözleşmeden Doğan Sürekli Borç İlişkilerinin Sona Ermesi, Istanbul 1976, p. 186.
37 Ormancı, p. 177.
38 Ormancı, p. 134.
39 Akyol, p. 104; Yalçın, p. 111.
40 Füsun Tuncel Yazıcıoğlu, Banka Kredi Sözleşmeleri ve Kredilerden Doğan Uyuşmazlıklar, Ankara 2013, p. 75.
41 Gürses, p. 407; Seliçi, p. 112.
42 Yalçın, p. 111.
43 Akçaal, p. 57.
44 Akçaal, p. 57; Atilla Altop, “Türk Borçlar Kanunu Tasarısı’ndaki Genel İşlem Koşulları Düzenlemesi”, Prof. Dr. Ergon A. Çetingil ve Prof. Dr. Reyegan Kender’e 50. Birlikte Çalışma Yılı Armağanı, Istanbul 2007, p. 259.
45 Yalçın, p. 111.
46 For detailed information regarding this view please see: Yalçın, p. 114; Gürses, p. 408; Ünal Tekinalp, Türk Mali Kurumlar Hukuku I: Bank Hukukunun Esasları, Istanbul 1988, p. 358; Türkay Alıca, Türk Hukukunda Banka Genel Kredi Açma Sözleşmesi, Unpublished Master Thesis, Istanbul University Institute of Social Sciences, Istanbul 1990, p. 118.
47 The Court of Cassation, 11th Civil Chamber, dated 25.11.1994, numbered 94/6472 E., 11467K.
48 Yalçın, p. 115, By transfer from the decision of the Court of Cassation, 19th Civil Chamber, Date: 22.02.1998, Case No: 1998/6138, Decision No: 1999/1015.
49 Alıca, p. 118
50 Alıca, p. 117; Cemal Oğuz, Genel İşlem Şartları ve İçerik Sınırları, Unpublished Doctoral Thesis, Ankara University, Institute of Social Sciences, Ankara 1993, p. 105.
