ABSTRACT
This article examines the validity requirements and limitations of disclaimer agreements. It begins by defining the concept and outlining the conditions for validity. Subsequently, it explores and explains the limitations of disclaimer agreements under specific subheadings.
I. INTRODUCTION
While the principle of freedom of contract allows parties to agree on any subject in any manner they choose, this freedom is not unlimited. In certain circumstances, particularly those dictated by the subject matter of the contract and the status of the parties, the legislature intervenes to balance the rights of the parties and prevent unfair practices. Disclaimer agreements are one type of contract affected by these regulations. This article comprehensively addresses the concept of disclaimer agreements, their validity requirements, and their limitations. Disclaimer agreements frequently appear in practice. Often, they appear as attachments to contracts we sign without realizing it. This article explores and answers questions such as: what constitutes a disclaimer agreement, what are the requirements for its validity, in which areas can they be encountered, and in which areas are they prohibited.
A. Concept and Definition
A disclaimer agreement, essentially regulated under article 112 of the Turkish Code of Obligations (“TCO”)1, refers to agreements aimed at eliminating the debtor’s liability arising from the nonperformance of an obligation. Through this agreement, the debtor can be released from the liability that would otherwise arise from their failure to fulfill the obligation. With this agreement, the parties agree to a potential future compensation relationship between them. The positive increase that would normally occur in the creditor’s assets due to a breach of contract is prevented by this waiver agreement. A disclaimer agreement is also a beneficial transaction for the debtor. This is because they are released from the obligation they would otherwise be liable for due to their breach of contract, and their assets are not negatively affected.
The criterion set by the legislator for compensation of damages arising from nonperformance of an obligation is faultbased liability. Article 112/1 of the TCO states that if an obligation is not performed at all or not performed properly, the debtor is obliged to compensate the creditor for the resulting damage unless they can prove that no fault can be attributed to them. As understood from this provision, the legislator presumes the debtor’s fault. Accordingly, for the debtor to be held liable, fault is required, but fault is also presumed2.
II. VALIDITY REQUIREMENTS OF A DISCLAIMER AGREEMENT
One of the fundamental principles of the Turkish Code of Obligations is freedom of contract, which allows parties to enter into agreements on any subject and in any manner they choose. The limitations of this freedom of contract are public order, mandatory provisions of law, violation of personal rights, and contracts with impossible subject matter. Disclaimer agreements arise as a consequence of this freedom. A disclaimer agreement can be arranged separately from the contract or as an annex to the contract. While there is no requirement for the agreement to be made at the time of the contract, it must be made before the breach of contract occurs. A disclaimer agreement made after the liability has arisen will be considered a settlement or release, depending on its nature and the legal validity requirements. Furthermore, this agreement made after the liability has arisen can be structured based on the degree of fault, including gross negligence, which is restricted by law3.
A disclaimer agreement is established through the mutual and concordant declarations of will of two parties. A unilateral declaration by the creditor stating that they waive the debtor’s liability arising from a breach of contract, despite being in favor of the creditor, is invalid. Similarly, a unilateral declaration of will by the debtor stipulating their nonliability for a breach of contract will also be invalid4.
According to article 12/1 of the TCO, the validity of contracts is not subject to any form unless otherwise stipulated by law. There is no prescribed form for disclaimer agreements in the law. However, in practice, disclaimer agreements made as an annex to a contract subject to a legal form are also made by the form of the contract. A view within legal doctrine suggests that even if the main contract is subject to a legal form, the disclaimer agreement can be formed without any form. The reason given for this is that when a legal form is prescribed, it applies to the objectively essential points of the contract. This categorizes the disclaimer clause as a collateral agreement about the main obligations5. The opposing view states that a disclaimer agreement can be added as an independent agreement or as a collateral provision to an agreement, but in both cases, the validity of the disclaimer agreement depends on the validity of the main contract. It argues that if the disclaimer agreement is present during the formation of the contract, it constitutes a subjectively essential point, and if it is added later, it modifies the contract, therefore subjecting it to the formal requirements of the main contract6.
The consequences of disclaimer clauses within general terms and conditions are a matter that requires examination through a twofold distinction: considered unwritten clauses and absolute nullity. In practice, disclaimer clauses are often found within general terms and conditions. According to article 21/1 of the TCO, for general terms and conditions to be incorporated into a contract, the party presenting them must explicitly inform the other party of their existence, provide them with the opportunity to learn their content, and the other party must accept these conditions. If the presenting party fails to do so, the general terms and conditions are deemed unwritten. Even if the parties’ intentions align on these points, if the drafted disclaimer agreement is incompatible with the nature of the contract and the specifics of the transaction, it will be subject to the sanction of being deemed unwritten. However, article 22/1 of the TCO states that the provisions of the contract, other than the general terms and conditions deemed unwritten, shall remain valid. According to the same provision, in this case, the presenting party cannot claim that they would not have entered into the contract with the remaining provisions if the deemed unwritten conditions were not present7. Another sanction is the absolute nullity sanction according to article 25/1 of the TCO. Accordingly, “Provisions cannot be included in general terms and conditions that are contrary to the principles of good faith, to the detriment of the other party, or that aggravate their situation”. The scope of the principle of good faith must be determined based on the specific circumstances of the case, taking into account the balance of power and personal situations.
Another distinction made in doctrine is between disclaimer agreements in the narrow and broad sense. Situations where the debtor’s liability is limited or eliminated are considered disclaimer agreements in the narrow sense. Clauses in contracts like: “We are liable for damages arising from intent and gross negligence, but not for damages arising from slight negligence,” or simply “We are not liable for damages arising from slight negligence.” General phrases such as “No liability is accepted,” and “...we are not responsible for any damages incurred” are also frequently encountered in contracts. Such clauses, which are commonly encountered in disclaimer agreements, fall under the category of disclaimer agreements in the narrow sense. Disclaimer agreements in the broad sense refer to situations where the maximum amount for which the debtor is liable is stipulated, the assets for which they will be held liable are determined, the debtor is not held liable for late performance, the warranty period is set to six months, instances such as earthquakes or floods that prevent performance or are considered force majeure are specified, the debtor is released from performance, performance is tied to the occurrence of certain events or the burden of proof is assigned to the creditor. The conclusion to be drawn is that disclaimer agreements where the limits of liability are stipulated without leaving room for discretion are classified as disclaimer agreements in the broad sense8.
III. GENERAL LIMITATIONS OF DISCLAIMER AGREEMENTS
A. Limitations Within the Framework of Article 115 of the TCO
According to article 115/1 of the TCO, any prior agreement stipulating that the debtor will not be liable for their gross negligence is null and void. With this provision, the legislator protects the creditor against arbitrary breaches of contract by the debtor. This ensures that the principle of equality between the parties to the contract is not undermined to the detriment of the creditor. In Turkish law, degrees of fault are classified as intent, gross negligence, and slight negligence. Intent refers to a person knowingly and willingly performing an act, and the legislator does not protect intent in any way under Article 115 of the TCO. The distinction between gross negligence and slight negligence has not been explicitly defined by the legislator. It is a matter that must be decided by the judge based on the specific circumstances of the case, referring to relevant precedents and decisions.
According to article 115/2 of the TCO, any prior agreement stipulating that the debtor will not be liable for any debt arising from a service contract with the creditor is subject to absolute nullity. This provision addresses the need to protect the employee, who is in the position of creditor, due to their social and economic dependence on the debtor in the service contract. During the agreement process, the employee is often compelled to accept the contract terms offered or imposed by the employer for various reasons. Therefore, there is a justified need to protect the employee. A topic rightfully debated in legal doctrine is the fate of agreements other than service contracts where the creditor is dependent on the debtor. The prevailing view here is that the phrase “any debt arising from a service contract” should be interpreted broadly. Otherwise, the debtor would be left unprotected in other situations without any justification, relying on the said provision.
According to article 115/3 of the TCO: “If a service, profession, or art requiring expertise can only be carried out with a permit issued by law or competent authorities, a prior agreement stipulating that the debtor will not be liable for their slight negligence is null and void.” Here, the legislator prohibits disclaimer agreements for certain professions and individuals. The legislator sets forth two conditions for the sanction of absolute nullity in this provision. The phrase “services that can only be carried out with a permit issued by law or competent authorities” generally refers to the importance of these professions and the requirement for their execution without error. However, the sole condition is not just the existence of a profession requiring permission from the law or competent authorities. This profession must also be a service, occupation, or art requiring expertise. The purpose of this provision is to maintain public trust in certain professions. While what constitutes a profession requiring expertise is not clearly defined, professions such as law, notary public, pharmacy, and banking are considered within this scope.
Another point that needs clarification is whether the authority granting the permit should be a public or private entity. If permits issued by non-official bodies are included, the scope of the provision would broaden, potentially encompassing every profession and occupation. Therefore, it would be more accurate to interpret the phrase “competent authorities” in the provision as referring to public authorities9.
B. Limitations Within the Framework of Article 116 of the TCO
Article 116/2 of the TCO emphasizes that liability arising from the actions of auxiliary persons can be completely or partially waived by a prior agreement. With this provision, the debtor can waive liability arising from the actions of auxiliary persons, even in cases of gross negligence. The legislator makes no distinction between slight negligence and gross negligence, providing the option to waive liability for all degrees of fault. This provision is rightfully criticized. In daily life, businesses, from the largest to the smallest, generally operate through auxiliary persons. Including such a clause would place an unnecessary burden on auxiliary persons who are involved in every aspect of the business. This would grant an undue privilege to the debtor. A prevailing view in legal doctrine, and a sound one, suggests that the provision should at least encompass liability for slight negligence.
According to article 116/3 of the TCO: “If a service, profession, or art requiring expertise can only be carried out with a permit issued by law or competent authorities, an agreement stipulating that the debtor will not be liable for the actions of their auxiliary persons is null and void.” With this provision, the legislator introduces an exception to the complete waiver of liability for the actions of auxiliary persons. As explained above, due to the public trust placed in professions requiring expertise and operating under license, it is appropriate to introduce such a regulation requiring diligent conduct. The acceptance of liability for the actions of auxiliary persons, along with the provision in article 115/3 of the TCO establishing the debtor’s liability as a principle, demonstrates the value and importance attributed to these professions. If the debtor is engaged in professions such as law, notary public, or pharmacy, which are generally accepted as requiring expertise, and utilizes auxiliary persons, any disclaimer agreement they make will be subject to absolute nullity.
IV. SPECIFIC LIMITATIONS OF DISCLAIMER AGREEMENTS
A. Liability Waivers in the Context of Leases
Specific regulations exist regarding liability waivers. Article 301 of the Turkish Code of Obligations, which regulates the lessor’s obligation to deliver the leased property in the section on the lessor’s obligations, is one such specific regulation. According to this provision: “The lessor is obligated to deliver the leased property on the agreed date in a condition suitable for the intended use as stipulated in the contract and to maintain it in this condition throughout the contract.
This provision cannot be modified to the detriment of the lessee in residential and roofed workplace leases; in other lease agreements, provisions contrary to this provision cannot be made to the detriment of the lessee through general terms and conditions.” The first conclusion to be drawn from this provision is that in residential and roofed workplace leases, agreements that eliminate or limit the lessor’s liability for defects cannot be made. As this provision is mandatory, agreements made to the contrary will be null and void. Agreements that limit or eliminate liability cannot be made with the contract, nor can they be added later as a supplement.
Agreements that place the burden of expenses necessary for the removal of defects in the leased property on the tenant will also result in absolute nullity. In lease agreements other than residential and roofed workplace leases, liability waivers not made through general terms and conditions are generally considered valid. The validity of liability waivers not made through general terms and conditions within the scope of lease agreements other than residential and roofed workplace leases will depend on whether these agreements meet the validity requirements according to general provisions. Accordingly, liability waivers that are contrary to mandatory provisions, morality, public order, and personal rights will be deemed invalid10.
B. Liability Waivers in the Context of Defects
Article 219 of the Turkish Code of Obligations provides further specific regulations regarding liability for defects. According to this provision, “The seller shall be liable to the buyer for the lack of qualities which the seller has declared to the buyer in any manner, as well as for material, legal, or economic defects that are contrary to the quality or quantity affecting the quality, that eliminate or significantly reduce the value and benefits expected by the buyer in terms of the intended use.” A defect is defined as a deficiency in the characteristics, content or use of the sold good which prevents the buyer from benefiting from the sold good and of which the buyer was unaware at the time of the formation of the contract. Defects can generally be legal, material or economic11.
According to the provision, the seller will be held liable if any quality declared to the buyer is not present in the sold item. With this provision, the legislator addresses the contradiction inherent in a seller both declaring specific qualities and selling an item that does not conform to those qualities, thereby holding the seller responsible when the trust placed in them is broken. Furthermore, per article 219, paragraph two of the TCO, the seller is held liable even if they are unaware of the existence of these defects.
Furthermore, the legislator has also stipulated situations where the seller is liable even if they haven’t made any explicit declarations about the qualities of the good. The first paragraph continues to state that the seller is also liable for defects that are contrary to the quality or the quantity affecting the quality, and that eliminate or significantly reduce the value and the benefits expected by the buyer from the good in terms of its intended use.
However, these provisions do not preclude the formation of a liability disclaimer agreement. Parties are free to enter into an agreement that limits or waives the seller’s liability for defects within the bounds of contractual freedom. However, article 221 of the TCO, titled “Liability Disclaimer Agreement,” imposes a limitation on this freedom. According to this provision, any agreement that eliminates or limits the seller’s liability for defects is categorically null and void if the seller acted with gross negligence in delivering the defective good. The provision refers to the seller’s gross negligence in delivering the defective good, not the defect itself. This provision was expressed in article 19612 of the former Turkish Code of Obligations (Law No. 818) with the phrase “fraudulently concealed”. It is appropriate to interpret these two different provisions as having the same meaning. Except for this circumstance, there is no obstacle to the seller and buyer entering into a liability disclaimer agreement.
Furthermore, according to Article 222 of the TCO, the seller is not liable for defects known to the buyer at the time the sales contract was formed. The legislator has prevented the buyer from later asserting defects that they were aware of at the time of contract formation. This is based on the premise that the buyer’s willingness to enter into the contract encompassed the defective nature of the good, and any subsequent assertion of such defects would constitute an abuse of rights. According to article 222/2 of the TCO, the seller shall be liable for defects that the buyer could have discovered through reasonable inspection only if the seller has explicitly guaranteed the absence of such defects. This provision holds the buyer responsible for defects that could have been discovered through a simple inspection of the goods. With this provision, the legislator imposes a duty of reasonable care on the buyer. Indeed, this point has been expressed in legal doctrine as follows: “The sufficient level of attention varies depending on the nature of the sales item (e.g., the inside of original packaging cannot be inspected) and the buyer’s profession, and whether they are accustomed to such transactions; while a fabric merchant can easily detect a defect in fabric or an experienced machinist in a machine, it may be difficult or even impossible for a layperson to detect the same defect”13. The seller’s liability in such cases is contingent upon their explicit assumption of such responsibility.
C. Liability Disclaimer Agreements in the Context of Seizure
According to article 214 of the TCO, which governs the seller’s liability for eviction, if all or part of the sold good is taken from the buyer by a third party due to a right existing at the time the sales contract was formed, the seller shall be liable to the buyer. This provision holds the seller liable if the sold good, or a portion thereof, is taken from the buyer due to a preexisting right of a third party. This liability is both contractual and statutory. Because this liability is stipulated by law, the seller’s responsibility arises without the need for a separate undertaking. It is also considered a contractual liability, as the seller has failed to fulfill their contractual obligations.
Another characteristic of the liability for eviction is that the seller’s liability is considered a form of strict liability. The seller’s liability arises even if they were unaware of the third party’s right over the sold good14. According to article 214/2 of the TCO, if the buyer was aware of the risk of eviction at the time the contract was formed, the seller shall not be liable unless they have explicitly assumed such liability. According to article 214/3 of the TCO, if the seller concealed the third party’s right, any agreement limiting or excluding their liability is null and void. The provisions regarding the seller’s liability are generally not mandatory. Therefore, the parties can expand, restrict through a liability disclaimer agreement, or eliminate the seller’s liability. Thus, limiting the seller’s liability is possible through a liability disclaimer agreement.
A liability disclaimer agreement can be stipulated as a separate agreement or as an addendum to the sales contract. However, in all cases, the form of the sales contract will determine the form of the liability disclaimer agreement. A liability disclaimer agreement that does not comply with the formal requirements of the sales contract will be deemed invalid. This invalidity will be isolated and will not affect the validity of the sales contract. The parties can make the liability disclaimer agreement through an express or implied provision. As stated above, the liability disclaimer agreement must be made at the latest when the damage occurs. A liability disclaimer agreement made after the damage has occurred should be considered a settlement or release agreement.
As stated in article 214/3 of the TCO, the seller cannot rely on a liability disclaimer agreement in all circumstances. A limitation is imposed by law. According to this provision, if the seller has concealed the third party’s right, any agreement limiting or excluding their liability is categorically null and void. For example, if a seller, knowing that the good in their possession has already been sold and belongs to someone else, sells this good to a buyer, the liability disclaimer agreement will be null and void because the seller was aware of the third party’s superior right over the good. It is required that the seller is aware that the buyer is unaware of the superior right. If the buyer is aware of the superior right, they are deemed to have accepted the contract in that form. Similarly, if the seller is unaware that the buyer is unaware of the superior right, the condition of concealment will not be met. Concealment of the superior right from the buyer can occur actively through false statements and representations, or passively by remaining silent about a known fact. For example, if aseller, knowing about a superior right over a sofa being sold, does not inform the buyer about this right and delivers the sofa to the buyer, the seller will have concealed the superior right through passive conduct15.
A discussion in legal doctrine revolves around the relationship between Article 214 and Article 115 of the TCO. As is known, article 115 of the TCO subjects agreements excluding liability for the debtor’s gross negligence to absolute nullity. However, article 214 only provides for absolute nullity in cases where the superior right is concealed. This implies that agreements excluding the seller’s liability for gross negligence other than concealment should be considered valid. However, concealment involves intentional conduct and therefore should be considered a form of gross negligence. Consequently, several viewpoints exist on this matter. The first view favors the application of Article 115. Another view positions Article 214 as a special provision about Article 115 and argues for its application, asserting that liability disclaimer agreements are permissible in all cases except concealment. The third and final view proposes that both provisions should be applied concurrently, arguing that only liability disclaimer agreements about slight negligence are valid, excluding cases of gross negligence and concealment16. The third view, which we also subscribe to, appears to be the most accurate. There is no indication of legislative intent to suggest that only one provision should apply. Asserting that a disclaimer is permissible in all cases except concealment would mean accepting that the seller is not liable for damages caused by their gross negligence. Furthermore, arguing that a disclaimer is allowed in all cases except gross negligence renders Article 214 meaningless. Therefore, it seems appropriate to only validate agreements that limit liability to slight negligence. Otherwise, the issue of granting the seller an advantage not provided by law through interpretation arises.
D. Liability Disclaimer Agreements in Accommodation Facilities, Parking Garages, and Similar Establishments.
The legislator has introduced similar provisions regarding liability disclaimer agreements in articles 578/2 and 579/3 of the TCO. First, it is beneficial to clarify the articles from which the liability of operators of such establishments arises. According to article 576 of the TCO, operators of establishments such as hotels, motels, pensions, and holiday resorts are liable for the loss, damage, or theft of belongings brought in by guests. Similarly, according to Article 579/1 of the TCO, operators of garages, parking lots, and similar establishments are liable for the loss, damage, or theft of animals, horse-drawn carriages, related harnesses, and similar items, as well as motor vehicles and their accessories left in their care or accepted by their employees. According to both article 578/2 and article 579/3 of the TCO, the operator cannot escape liability even if they declare, by any means, that they do not assume such responsibility or that their liability is subject to a condition not specified in the TCO. A declaration is a unilateral expression of will. Therefore, eliminating liability through a unilateral declaration does not align with the nature of a liability disclaimer agreement. Even without such a provision, this conclusion could be drawn from the nature of a liability disclaimer agreement.
The question of whether operators of accommodation facilities, garages, parking lots, and similar establishments can partially or completely limit their liability through a liability disclaimer agreement is a subject of debate in legal doctrine. The minority view argues that subjecting liability to a condition not specified in the TCO constitutes an obstacle to such a disclaimer agreement. The prevailing view, which we also concur with, posits that the legislator, in the relevant article, is referring to a disclaimer made through a public declaration. This article does not preclude a liability disclaimer agreement established by the parties through the mutual expression of will within the bounds of contractual freedom. Therefore, it is accepted that the parties can enter into a liability disclaimer agreement.
While the legal doctrine deems liability disclaimers made through public declarations by operators of accommodation facilities, garages, and parking lots invalid, there is another discussion regarding the acceptance of publicly declared disclaimers outside the cases specified by law. However, as we have previously stated, this discussion is unnecessary, as it is not possible to escape liability through a unilateral public declaration. Liability disclaimer agreements must be established through mutual and concordant expressions of will. Therefore, except for the exceptions listed in the law, it is not possible to establish a liability disclaimer agreement through a public declaration17.
E. Special Limitation in the Highway Traffic Law
Article 111 of the Highway Traffic Law18 (“HTL”) sets forth another specific limitation. According to the first paragraph of this article, titled “Agreements Concerning Liability,” agreements that eliminate or limit the legal liability stipulated by the HTL are deemed invalid. The issue at hand is that while Article 115 of the TCO implies that liability disclaimer agreements are valid except in cases of the debtor’s gross negligence, the HTL stipulates that all such agreements are invalid. There is a conflict of laws between these two provisions. The provision in the HTL is specific but older, while the provision in the TCO is general but newer. The Supreme Court’s sound decision on this matter is as follows: “If the prior law is general and the new law is specific, then the provisions of the new, specific law should be applied to the case. However, if the prior law is specific and the new law is general, it is necessary to consider the legislator’s intent in enacting the general law. If the legislator intends to introduce a change with the subsequent general law, adopting a new perspective on matters regulated by the prior specific law, then the subsequent general law should be applied to the case”19.
Firstly, the legislator emphasizes in Article 1 of the HTL that the purpose of the law is to ensure traffic order and determine the measures to be taken regarding traffic safety on highways in terms of the safety of life and property. Therefore, the law generally aims to protect vulnerable road users against vehicle operators who are in a stronger position. Consequently, it cannot be argued that the legislator intended a “new perspective,” as the law puts it, with the general provision. Otherwise, operators would be able to avoid liability for anything short of gross negligence. Due to their vulnerable position, passengers would be forced to accept the contract as is20.
F. Special Limitation in the Package Tour Regulation
The Package Tour Contracts Regulation (“PTCR”)21 includes a provision regarding disclaimers. The definition of a package tour contract is provided in Article 51 of the Consumer Protection Law (“CPL”)22. According to this article: “A package tour contract is a contract in which at least two of the following services are sold or offered for sale together at an allinclusive price by package tour organizers or intermediaries, and the service covers a period exceeding twenty-four hours or includes overnight accommodation:
a) Transportation
b) Accommodation
c) Other tourist services not directly related to transportation and accommodation services.
This definition indicates that package tour contracts are agreements in which package tour organizers or intermediaries provide various services to consumers within the scope of tourism services in exchange for a certain fee. Several elements of package tour contracts can be derived from this definition. The first element specified in the article is that the contract must include at least two of the mentioned services (transportation, accommodation, and other tourist services not linked to these services). The legislator did not consider a single service sufficient, intending these services to be offered to the consumer as a package. However, the provision of different services should not lead to the assumption that they are considered separately. These services are combined and presented as a single service. Another element mentioned in the article is the fee. When mentioning the fee, the legislator uses the term “allinclusive price.” This means the consumer is not obligated to pay separate fees for the packaged services but instead pays a lump sum. The third element is duration. The legislator did not deem the presence of at least two services together sufficient and added a duration requirement. Accordingly, the tourist service must cover a period exceeding twenty-four hours or include overnight accommodation. If the package tour does not include overnight accommodation, the legislator requires the service to last more than twenty-four hours.
According to Article 13 of the PTCR, the package tour organizer or intermediary is liable for all damages incurred by the participant due to the non-performance or improper performance of the contract. This provision assigns liability for damages arising from non-performance or improper performance of the contract to the organizer or intermediary. Article 14 of the PTCR enumerates the limited ways in which they can be relieved of this liability. These are specified in the article as follows:
a) The presence of fault on the part of the participant.
b) The unexpected and unavoidable act of a third party not involved in the performance of the contract.
c) The presence of force majeure.
d) The occurrence of an event that the package tour organizer, intermediary, or independent service provider could not have foreseen or prevented despite exercising all due care.
e) Cancellation of the package tour due to failure to reach the minimum number of participants stipulated for the organization of the tour, provided that the cancellation is communicated to the participant in writing or through a durable medium at least twenty days before the commencement of the package tour, as stipulated in the contract.If the organizer or intermediary cannot invoke one of these exemptions, they will be held liable for all damages.
Article 18 of the PTCR, titled Disclaimer, delineates the limits of liability for package tour organizers or intermediaries. According to this article, any clauses in the contract or in a separate document stating that the participant waives the rights granted by the regulation, or that limit or eliminate the obligations of the package tour organizer or intermediary arising from the regulation, are deemed invalid. This provision is mandatory. It states that any liability disclaimer agreement regarding levels of fault will be rendered invalid. Package tour organizers and intermediaries are not permitted to escape liability except as provided for in Article 18 of the PTCR. The main reason for this is to protect the consumer, who is in a vulnerable position. In practice, since package tour organizers often operate as agencies authorized by the Ministry, their liability disclaimer agreements will be deemed invalid both under Article 18 of the PTCR and Article 115/3 of the TCO23.
V. CONCLUSION
The TCO, as the general law, regulates the conditions for validity and limitations of liability disclaimer agreements. While liability disclaimer agreements are evaluated within the scope of the principle of freedom of contract, they are limited by the Turkish Code of Obligations and special regulations. These limitations are imposed primarily for the protection of public order, personality rights, the principle of good faith, and parties in a vulnerable position (such as consumers, tenants, and employees). As examined in this article, liability disclaimer agreements are categorically null and void in cases of exclusion of liability for gross negligence, elimination of liability in service contracts, and exclusion of liability for slight negligence in professional services requiring expertise and performed under licenses granted by law or competent authorities. Moreover, in contracts subject to special regulations, such as lease, sales, and package tour contracts, the legislator has limited the scope of liability disclaimer agreements to balance the rights of the parties and prevent unfair practices. Consequently, the validity of liability disclaimer agreements is subject to both general provisions and specific provisions depending on the subject matter of the contract and the status of the parties and should be determined by evaluating the specific circumstances of the case. Considering these limitations during contract drafting is crucial for preventing potential disputes and legal problems.
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FOOTNOTE
1 Turkish Code of Obligations, Article 112 et seq., Official Gazette (OG) No. 27836, dated 04.02.2011.
2 Kemal Oğuzman/ Turgut Öz, General Provisions of the Law of Obligations, 21st Edition, Istanbul 2023, p. 425.
3 Oğuzman/ Öz, p. 432.
4 Selahattin Sulhi Tekinay/ Sermet Akman/ Haluk Burcuoğlu/ Atilla Altop, Tekinay General Provisions of the Law of Obligations, 7th Edition, Istanbul 1993, p. 879-880.
5 Tekinay/ Akman/ Burcuoğlu/ Altop, p. 881.
6 Fikret Eren, General Provisions of the Law of Obligations, 28th Edition, Ankara 2023, p. 1229; Oğuzman/Öz, p. 431-432.
7 Elif Ayan, Legal Evaluation of Disclaimer Clauses in General Terms and Conditions, Gazi University Faculty of Law Journal, 2016, Issue 3, p. 16.
8 Nilgün Başalp, Disclaimer Agreements, 11th Edition, Istanbul 2011, p. 11-12.
9 Re. Ass. Numan Tekelioğlu, An Examination of a Court of Cassation Decision Regarding Disclaimer Agreements, Isparta 2016, p. 14.
10 Cevdet Yavuz/ Faruk Acar/ Ayşe Melek Turhan, New Developments in Turkish Tenancy Law Symposium, Legal Yayıncılık, Istanbul 2023, p. 622-623.
11 Nihat Yavuz, Defective Performance, Seçkin Yayıncılık, Ankara 2012, p. 16.
12 Turkish Code of Obligations (Law No. 818), Articles 196 et seq., Official Gazette (OG) No. 359, dated April 29, 1926.
13 Yavuz, p. 172.
14 Hamdi Taha Sar, Seller’s Liability for Eviction in Sales Contracts, Yetkin Yayıncılık, Ankara 2023, p. 11-15.
15 Sar, p. 116-120.
16 Sar, Seller’s Liability for Seizure, p. 120-123.
17 Nesibe Nur Kızılkan, Disclaimer Clauses in Consumer Transactions, 1st Edition, Ankara 2023, p. 58-60.
18 Highway Traffic Law, Articles 111 et seq., Official Gazette (RG) No. 18195, dated October 18, 1983.
19 Supreme Court of Appeals, 4th Civil Chamber, Decision dated 09.05.2013, File No. 2012/28180, Decision No. 2013/14227.
20 Melih Tavalıoğlu, Limitations and Invalidity of Liability Disclaimer Agreements, Master’s Thesis, Istanbul 2023, p. 102-103.
21 Package Tour Contracts Regulation, Official Gazette (OG) No. 29236, dated January 14, 2015.
22 Consumer Protection Law, Article 51, Official Gazette (OG) No. 28835, dated November 28, 2013.
23 Feyza Eren Sayın, Package Tour Contract, Hamburg 2017, p. 273-274.
