Critical Comparison of Contractual Differences and Similarities regarding Bargaining Power between the UK and Turkey's Law System
Prepared by: Guden Attorneys at Law
In this article, the main point is to analyse Turkish Law as well as English Law, the legal and authoritative intercessions in the scope of freedom of contract, and to demonstrate how, and under what conditions, authoritative desires rely on an assortment of non-contractual economy and social expectations affect bargaining power in contracts. This article will especially analyse in depth of bargaining power in contractual situations and the constitutional principle of helping the weak party in contract obligations to understanding, which initially codified to 2012 Code of Obligations in Turkey. In order to understand Westernisation process in Turkey, it would be beneficial to understand the judge-made contractual justice, an intractable factor on consumer and business contracts. Moreover, the legislature will be assessed the way in which systematised the case law that had compelled definite fairness requirements following the business markets in Turkey. Finally, this article will try to answer the question of does business and consumer contracts bargaining power protection in English Law is similar or different from Turkish Law.

i. The History of Turkish Contract Law

The proclamation of Turkish Republic in 1923, Turkey began to adapt modern laws such as Swiss private law in which the availability to customary needs and the importance is that the solutions where pragmatic rather than conceptual was the main reason to adapt Swiss Civil Code by the Turkish legislature.[1] In this manner, the codification of the Swiss Civil Codes offered the Turkish judges to have adaptability period between old Ottoman system and trying to build the new one. [2] It enabled Turkish judges to adapt certain social prerequisites to rapidly growing communities in Turkey. Furthermore, Turkish legislature instituted the main orderly Commercial Code, primarily, Swiss law and additionally German law.[3] Since the Turkish legal organisations adapted Swiss and German statutory standards just as, constantly, the insightful supposition on their explanation in their own decisions, Turkish courts have not faltered to depend, among others, working on this issue to pass the information of these nations in an academic way. In 2012, the new Code of Obligation No. 6098 as from now on will be stated as Turkish Obligation Code [TOC] was adapted which for the first time contains guidelines with respect to general conditions of contract for business relationships in the business to business contracts.[4] Articles 20-25 of the TOC currently manage the setup, pertinence and understanding of general contract conditions.[5] §§ 305 ff. German Civil Code filled in as a format for the new Turkish contract law. As Roscoe Pound stated that, the origin of an agreement was essentially the consent of the parties.[6] Nevertheless, individuals that are losing power to negotiate and getting monetarily reliant on the other party have offered escalade in to case law in which ought to have social equity to overcome the unfairness and portrays the joint efforts comparing the different social standardising.[7] Prior to the 2012 reform, the Turkish judges was obliged to survey the conditions of a contract where demonstrates the interpretation of the judge in an agreement or even his decision as per the standard that judges could make as legislature without an arrangement appropriate to the legal issue, is the fairness test of standard agreement terms.[8] Prior to the 2012 reform, the Supreme Court decided that to protect the vulnerable party in an agreement where that party is in a financially disadvantaged position, the judges can interfere with the outcomes of the contracts in which the Supreme Court justified these kind of interpretations by allowing to use the constitutional principle of protecting the vulnerable.[9] Be that is may, the constitutional principle as well as good faith played a huge role for the judge-made contractual law as the court's duty to protect vulnerable and their interest. According to the Constitutional Court, state is obligated to protect the vulnerable in which it is constitutional duty constitutional from Art. 17(1) of the Constitution:

'Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.'[10]

It can be said that, the effect of Art.17 (1) of Constitution has a direct link to contractual relations. The Court has used various protections, for instance, constitutional principles, doctrine of good faith and contractual fairness.[11] In this unique circumstance, the Court appears to prioritise fairness over any other objectives. [12]

ii. Unfairness in Turkish Contract Law

In relation to more contractual fairness through legislative and substantive control, TOC made a substantial changes on general standard terms.[13] The recently embedded guidelines in Articles 20 to 25, somewhat, demonstrated on §§ 305 ff. BGB, give the judge the express structure allowing for a specific adaptability in the context of fairness of standard terms.[14] Furthermore, the judges can strike down voluntary contracts, for instance, some degree shady bargaining practices to take advantage of the vulnerable party which are standards administering pressure or misrepresentation.[15] As it can be said that, English Contract Law has standard terms of contract for all contractor as Turkish Contract Law. The definition of unfairness between Turkish and English law differentiates on different rules yet the outcome is somewhat the same. In Turkish Contract Law general conditions as it stated in Article 20 of TOC;

'General terms and conditions are provisions which have been drafted solely by a party and submitted to the other party in advance of a contract is concluded so as to be used in many similar contracts subsequent. When classifying these terms, no regard should be made upon their scope, font type or shape or whether they are located in the text or annex of the contract.'[16]

General terms of agreement are liable to progressively stringent necessities under the law. Under Turkish law, a note in a legally binding provision demonstrating that all conditions were arranged that the other party would be in disadvantaged position in which that in this manner the use of the law in this severe way on general conditions of agreement is prohibited. [17] Rather, solid verification of correspondence both parties is essential for forming a contract. General form of contract become a necessary piece of the agreement if one of the parties explicitly calls attention to the general terms of agreement to the restricting party, with the goal that the last has the chance to check the conditions and after that unequivocally or verifiably consent to them. The Turkish literature intended to extend the level of protection for vulnerable party whether it is a consumer or not against the unfair terms in a contract.[18] This statement later on held by the Turkish Supreme Court, which applied Art. 20 in the case of a bank whom increased the rate of an agreement yet did not informed the customer.[19] Consequently, the Supreme Court held that not just businesses but individuals who purchases items and services for commercial purposes might be in need to require protection offered by Art. 20 by TOC in which the powerful parties bargaining capacity can be overlooked as to there is no negotiation to achieve a common base for general terms.[20]

In TOC Art. 21(1) of TOC, presents a two prolong step for deciding whether a party who is not in an equal bargaining position agreed and gave consent to unfavourable standard form terms.[21] As for standard terms to be viewed as consolidated, end of the agreement, the party ought to explicitly convey on the presence of standard terms to the consideration of the other contractual party in which it should not put that party in an disadvantaged position, the likelihood of gaining information of the content will help that party to understand the information regarding the terms and lastly with all things considered and approved by both parties to form the contract.[22] Furthermore, according to Art. 21(2), the judge chooses if in the given conditions, explicitly in context on the outward appearance of the agreement, the terms are imbalanced to such a degree, that the party who wants to reckon with it can no longer count on to Art. 21(2).[23] According to TCO, in a standard form of agreement the standard terms which do not cooperate with Art.21(1) or with Art.21(2) would not shape a form of contract.[24] Prior to the 2012, the Court had built up a standard regarding the consolidation of standard terms.[25] In accordance with standard terms, it becomes a part of the agreement if a party offers the other one to observe and negotiate for their own terms.[26] The Supreme Court upheld that if the parties form an agreement that has unfair standard terms in it, the unfair terms would have no impact on the other terms as to it becomes invalid. [27]Moreover, the party cannot contend that he would not have gone into the agreement in the event that he had anticipated such fractional incapability.[28] In present day, the Supreme Court's decisions regarding unfair terms can be found in Art. 22 of TOC. As it stated in Art. 22; unfair terms in standard contract terms will be interpreted against the one who interpreted into the contract.[29] Art. 24 by TOC, contains a particular course of action precluding norms that allows, or have the impact of permitting. For instance, the party who is the only one that can change the terms in the contract for his/her own benefit and puts the other party in a disadvantaged position. An equivalent prevention can be seen in the Annex of Directive 93/13 which gives definition might be called as unfair in contracts. [30] Art. 25 by TOC prohibits invalid terms which puts one party into significant imbalance of rights and obligations as well as at a disadvantage position.[31] In addition, the Code does not carry a demonstrative list as what might be regarded as unfair. Furthermore, Art. 25 considers and detects unfair terms in contracts as opposed to contractual parties to act in good faith and restricts unfairness by controlling the terms that have not been negotiated accordingly to the TOC. [32] However, as it stated above, there is no list what unfair terms would be and how it would affect the contractual rights and obligations regarding judges' decision on this subject. In English Law, whether it is UCTA 1977 or Consumer Rights Act 2015 there is a list which what would be called as unfair terms and if the terms that negotiated but unfair would be as regarding the contractual action taken against the unfairness.[33] It can be said that, in English Law, the courts take an approach about unfairness in which inequality of bargaining power would be in significant balance to overcome the negotiations in the contract to act and called as unfair. The good faith plays a huge role on Turkish Law as well as English Law. However, in Turkish Law it can be standalone reason to fairness in which every negotiation has to be on a good faith. [34]As for English Law, there are different discussions on whether good faith should be entwined with significant imbalance as for some court decisions and commentators the two meaning could not be stand alone as to dealing with bargaining power in contractual fairness.[35] Under English Law, the parties who exchange to use standard form of terms in a contract do not negotiate of the terms in which it is somewhat take it or leave it approach of the party who has a much powerful role in the sector.[36] This is much attempted in consumer contracts in English law as to the seller/trader, forces consumers' to submit their terms. However, Consumer Rights Act 2015 gives guidelines and protects consumer in which if there are any unfair terms the term would no longer be reliable for consumer, but, it does not mean the other terms of the contract would not be reliable. [37] For Turkish law, the Turkish Supreme Court's decision on 2014/13315E. - 2014/13503 K.; 'the present case consists of the commission fee, early settlement fee and mortgage fee received in the loan agreement of the plaintiff with the defendant with the highest interest to be applied to the deposit as of the date of the lawsuit…the other party of the contract is not fully aware of the existence or content of such general transaction terms or accepts them as they are not equipped to fully understand these general transaction conditions and evaluate them with their possible consequences or do not have the bargaining power.' that the presentation of TOC principles targeting taking out unfair terms defends the interests of all contractual relations such as businesses as well as consumers.[38] As it stated above decision of Supreme Court, the parties was both businesses and the main concern is always the same whether the unfairness of the terms was acknowledged when forming a contract and if not, than it cannot be forced to the other party. [39] Consequently, Turkish judges do not need to manage the viable inquiries identified with the qualification among consumer and businesses, especially in circumstances where such a differentiation is hard to bind. Furthermore, since TOC give more extensive security to unfair terms assurance to businesses, they give a progressively broad protection appeared differently in relation to EU law.[40] However, in English law, UCTA 1977 made a huge impact regarding reasonableness test in business to business contracts for exclusion and liability clauses that can be assessed as unreasonable. [41] Henceforth, regardless of the way that it expects to secure the interests of parties concerned and not just consumers, the TOC is smaller in degree of the other EU nations, which widen the control of unfair terms.[42]

In Oce ́ano Grupo Editorial SA v. Murciano Quintero, C-240/98, ECR I-04941, for instance, the Court stated that;

'the system of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-a`-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of the terms.'[43]

It can be said that, this method of reasoning of vulnerable party assurance that the EU Court has upheld different choices that gives convincing cause to not to restrict the extent of protection not just only to consumer contract and also too small to medium size businesses.[44] After all, managing a guideline that needs additional time and assets than they have available to them, small or medium-sized businesses are powerless against the challenges related with exchange, especially in their relations with bigger companies.[45] That is the reason, TOC extended the protection of the vulnerable to small or medium sized businesses.[46] For Turkish law, the outcome of this decision would be that the weaker party would have more broad protection whether the weaker party acts on professional bases. It would be best to analyse business to business contracts and business to consumer contracts in different section as to the comparison between Turkish and English law.

iii. Business to Business Contracts within UCTA 1977 and TOC

Business to business contracts regarding Turkish and English law has significant amount of similarities as to dealing with unfairness of the contractual negotiations even tough Turkish law is civil law as English law is statutory and common law based. In England, UCTA 1977 plays a huge role on business to business contract as specifically exclusion clauses and the Act applies only to business liability; that is, risk emerging from consequences of actions or in the process by an individual over the span of a business.[47] In Turkish law, business to business contracts regulate under TOC and Turkish Commercial Code [TCC] in which art. 23 of TCC refers to TOC dealing with business contracts.[48] As it mentioned above, TOC, contains regulations regarding standard form of contract for business relationships in business contracts.[49] However, the law of contract based on presumption that the parties freely negotiated the terms of their bargain in business contracts in which it form freedom of contracts. There is some criticism on this subject as in both English and Turkish law, freedom of contract is the doctrine of contract law which the parties who form a contract as to standard form of contracts, disables the fundamental meaning of freedom of contract in which the bargaining quality of the parties cannot be in accordance one on other.[50] For this measure, Turkish law enables judge-making process whether the social norms or judicial discretion. There is some limitation on freedom of contract according to Art. 19 of the TCO the contracting parties can pick the topic, subject and terms and states of the agreement unreservedly. [51] Be that as it may, the Republic of Turkey has brought guidelines into its economy and there is likewise state monetary movement. These carry certain confinements to the opportunity of agreement as contracts violating the law and constitution of the law, contracts in opposition to ethics and public policy, contracts in opposition to individual rights and incomprehensible contracts, all of which will not be substantial. [52] For English law, the courts only interfere or put aside the contract when liability of the business is excluded in the contract that there is no balance of negotiation or the weak party is in serious disadvantage to be in the contract as well as if the contracts contradicts with public policy such as illegal at common law and statute. [53] While it might be adequate for parties negotiating on an equivalent bargaining power to exclude or limit liability, the courts and Parliament of England and Wales have been hesitant to get involved in the case of exclusion provisions which a stronger party has forced on a more vulnerable one. [54] For example, in the case of Goodlife Nourishments Ltd v Corridor Fire Insurance Ltd [2018] EWCA Civ 1371, the exclusion conditions judged against the reasonableness test in the Unfair Contract Terms Act 1977 ("UCTA").[55] The Court of Appeal's decision does not conflict, however as Lord Justice Coulson expressed in Goodlife every prohibition condition "…must be considered in its authoritative and factual context. Some clauses will fall one side of the line; some the other. It is difficult to set down prescriptive guidelines…".[56] Additionally, in Goodlife, Lord Justice Coulson supported and stated that; "…the pattern in the UCTA cases chose as of late towards maintaining terms unreservedly concurred…". The Courts are hesitant to get included where the parties have made a bad bargain. It can be said that, in Turkish law, Art. 20 of TCO the issue of the entering into agreement that contains non-negotiated standard terms is that the validity of these terms needs to be examined while dismissing the other terms that negotiated according to the discipline of freedom of contract.[57] The main reason to articulate Art. 20 of TCO is for only to detect non-negotiated terms as protect the inequality of bargaining power in contractual form.[58] Furthermore, the restrictions to control the terms that contains unfairness raises an issue of practicality in contractual relations.[59] It is difficult to detect if the weaker party had the option to negotiate to impact the terms, which could be forced by the powerful party in abusive ways.[60] So as to evade the issues related with the qualification among negotiated and non-negotiated terms just as to all the more likely ensure against inequality of bargaining power. As for English law, English courts maintain the view that courts ought to guide the contractual parties yet do not interfere with the outcomes of a contract.[61] As for the meaning of freedom of contract was based on this aspect that the courts does not need to intervene to every problem as to it needs to be in significant unbalance of fairness for the parties to continue with the contract as stated in the case of Watford Electronics Ltd v. Sanderson CFL Ltd [2001], Chadwick LJ explained; '[t]he court should not interfere unless satisfied that one party had in effect taken unfair advantage of the other or that a term was so unreasonable that it could not have been understood or considered.'[62] It can be said that, the unfairness of the terms needs to be in such an advantage point that it should be unreasonable to even continue with the contractual obligation however there is no exit for the weaker party to not continue that's why courts intervene with the situations according to UCTA 1977 Section (11) as it can be stated as undue influence in some cases.[63] On the contrary, In Turkish law, significant unbalance can be stated as excessive exploitation and can be seen in TCO Art 28.; '[I]f there is a clear disproportion between mutual acts in a contract, if the disproportionate is performed by taking advantage of the parties' inconvenience or inconsideration or inexperience, the offender is either notified by the contract to the other party according to the nature of the situation or by adhering to the contract. The weak party may want to eliminate the disproportion between the acts. When he/she learned his/her right to be harmed, thoughtlessness or inexperience; in the event of a difficult situation, it can be used for one year starting from the date of disappearance of this situation and probably within five years starting from the date the contract is established.'[64] As it stated above, in Turkish law, the disproportion of the unfairness should be as taking advantage of the weaker party, as yet, the Turkish courts gave an exit to not continue with the contract as the weaker party does not need to feel abused or pressured to go along with the contract. There are specific timelines as to go along with the contract or terminate it for the lack of fairness and to some seemingly negotiated terms yet if it was negotiated it should not conclude as unfairness. The meaning of unfairness can be seen as the lack of bargaining power in contractual term as the weaker party should not agree to the term to proceed with contract but felt no other choice to continue. For example, Turkish Supreme Court 1st Law Chamber E. 2012/1093 K. 2012/10436 T. 01.10.2012[65], 'plaintiff in the petition had to put his own house for mortgage in order to contribute to the financial distress of his daughter, he made a statement that he was deceived that the arrangement was performed with fraud, the value of the contract is very low…in accordance with the principles of the parties' claims and evidences, necessary research is carried out and explanatory, satisfactory concrete information is obtained from witnesses, determination of the value of the property subject to cancellation on the date of arrangement by the experts, if the fraud claim cannot be proved, the evaluation will be made according to the claim of overdue. It is obvious that the plaintiff was in a significant disadvantaged position and taken advantaged. It is not correct that the result should be reached with the incomplete investigation as written when the provision should be established.'[66] In Turkish law, the principle of good faith plays a huge role on negotiating terms in a contract as such in Art. 2 ff. of Turkish Civil Code (no. 4721); '[t]o Act in Good Faith: Every person must act in good faith when exercising his/her rights and performing his/her obligations. The manifest abuse of a right is not protected by law.'[67] For instance, in the case of Turkish Supreme Assembly of Civil Chamber's decision in 20.12.2000E. 2000/3-1803 K.2000/1813[68] stated good faith principle; '...for this situation, the respondent utilised power wrongfully without membership or forming an agreement with the significant establishment. The court decided that as per the rule of good faith there is an agreement-based connection.'[69] It can be said that, in order to negotiate on a term in a contract each of the party has to act on good faith in which the bargaining power of the parties should not maintain of putting each other in a disadvantaged position. However, as difference to English law, Turkish law does not have a test regarding business to business contracts for reasonableness, yet, Turkish law defines reasonable term with the principle of good faith.[70] When businesses go into an agreement each party has to act on good faith, otherwise the law does not protect the party who act on malicious abuse of the doctrine. In English law, English courts still dismiss the good faith doctrine.[71] By the House of Lords in 1992, the duty to counsel in compliance with good faith was rejected according to that it disables and threatens the interest of business parties. As it were, for English courts the parties should eliminate threats as for freely form a contract. It is not really the situation that versatile procedures for deciphering contract just it does not exist in English contract law; regardless, there is interpretation regarding the rule of good faith principle. [72] As demonstrated by Piers, English courts and researchers are logically find solutions how to demonstrate good faith and exploring other standards to corporate with.[73] In present day, English law applies standard that contains good faith principle, Sims stated that;

''This is best visualised as a set of circles, concentrically placed around the basic moral notion of honesty, which is the minimum standard of behaviour required by the law from all contracting parties. From this centre point, the different applications of good faith spread out in ever widening circles.'' [74]

Lord Bingham expressed his thought in the case of Interfoto Library Ltd. v. Stiletto Ltd. (1988) 2 W.L.R. 615[75]; ''overriding principle that in making and carrying out contracts parties should act in good faith…English law has, characteristically, committed itself to no such principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.''[76] It can be said that, the reasonableness test to identify the unfairness regarding business to business contracts as such for Turkish law, it is yet to be based on solely the act on goof faith principle. As indicated by Steyn, there would not be any reason to embrace good faith standard in English law if the courts understand the parties needs and assumptions.[77] However, for Piers, good faith principle always prevail among in English law even without any reference to the principle.[78] In any case, as opposed to common law nations, it was not a general principle as Lord Denning tried to make it a principle however, House of Lord declined the idea of the principle.[79] Piers clarifies with the contrast of civil law and common law legislations, as in the common law's deductive method for speculation the advancement of and attributing to remove standards, for instance, good faith principle as the establishment of common sense disclosures.[80] As for civil law's reasoning to have general principles such as good faith principle that contains reluctancy to embrace more general principles which can abuse law and rights.[81] As Turkish Supreme Court expressed this example in the case of 25.1.1984, E. 1983/3, K. 1984/1; ''...with the rule set forth under Article 2/2 of the Civil Code, an exception is brought to the absoluteness of the Law and right.''[82] The problem regarding on how to define bargaining power in both English and Turkish law, brings the question on whether the precautions regarding to prevents unfairness in contract law can be the way to define the bargaining power adequacy of balance between the contractual parties. Neither English law nor Turkish law, restrict contractual parties to form a contract except the designated problems above, in which in both law's the importance of forming a contract on equal bargaining power is the main expectation. If the contract that forming has unfair terms both law systems has their own way to overcome these problems.

iv. Business to Consumer Contracts within UK Consumer Rights Act 2015 and Turkey Consumer Protection Act 2014

Business to consumer contracts is between a trader and a consumer who wants to form a contract for the supply of goods, digital content or services.[83] In English law, The Consumer Rights Act 2015 [CRA] became valid on 1 October 2015 regarding the rights and protection of the consumers.[84] On the contrary, for Turkish Law, in 2013 the Consumer Protection Act No. 6502 [CPA] was came into force on 28 May 2014. [85] For English and Turkish law, the meaning of a consumer in a consumer contract is an individual or legitimate being acting with no business or expert purposes. [86] CRA and CPA has both unfair term section in consumer contracts, however, it will be best to examine individually. In Turkish law, CPA has a huge impact on the protection of the consumer as to unfairness in which Art. 5 of CPA states;

'' (1) Unfair terms are contractual terms, which are included in the contract without negotiating with the consumer and that create an imbalance against the consumer in a manner contrary to good faith in the rights and obligations of the parties arising from the contract. (2) Unfair terms included in the contracts signed with the consumer shall be absolutely void. The provisions of the contract other than the unfair terms shall remain valid. In this case, the party drawing up the contract shall not argue that such party would not have engaged in a contract with the other provisions, if it were not for the terms deemed absolutely void.'' [87]

As it can be seen above, a term will be viewed as unfair if; the term would be incorporated into the agreement without being consulted with the consumer. And it can be similar to English law, standard form of contract of businesses take it or leave it attitude regarding consumer relations. Secondly, the term would be so unfair that the party's obligations and rights would have a significant imbalance which is against the bona fide principle.[88] A guideline The Ministry of Customs and Trade ('Ministry') describes terms which can be called as unfair.[89] According to the CPA, unfair terms are invalid. Be that as it may, the agreement all in all will keep on being valid, just the unfair provision or provisions ends up invalid and void. As for English law, Section 62(4) of the CRA; 'a contractual term will be unfair where the contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations under the contract to detriment of the consumer.'[90] It can be said that, for English law, the term can be unfair unless it brings significant imbalance for parties as such if there is an unfairness the unfair term will be invalid regarding for contractual obligations and rights. For English and Turkish law, protection of a consumer can only be possible to form a contract in act of good faith. As it stated in previous section that English law does not recognise the doctrine of good faith and why now that CRA accepted the term of good term in unfair section. The first striking concept in consumer contracts is the term 'good faith'.[91] In Smith v. Hughes, the Court decision that English contract law is not accustomed to good faith principle.[92] This have been maintained in the case of Walford v. Miles in which the courts held that there is no good faith principle to consult.[93] However, in the Bill discussions of CRA; one of the Lord's made a statement that; '…the problem arises because of the interplay of two provisions. The court may assess a contract term for unfairness unless it falls into a certain exempt category; and core terms in a contract are exempt from assessment for fairness by the courts if they are prominent and transparent.'[94] In English law, the unfairness can only be detected if it falls into a certain category as such if the core terms is transparent and prominent than it is fair for English courts. Is this could actually mean that the bargaining power of a consumer can be limited as to transparency and prominent of a term? If the business forms a contract with a consumer and all of the term is transparent and prominent that the importance of negotiation can be put aside in order to call as fair. The importance of a bargaining power should not be underestimated and would not be acknowledged unless it is taken from the party and forced to go along with the agreement. Prior to CRA, the discussion among the Lord's when CRA consulted in the Bill was that the fundamental structure continued as before however, the terms in a consumer contract should be simple and comprehensibly reasonable to achieve fairness. [95] Furthermore, there cannot be one hundred percent equal bargaining power however it does not mean the exempt categories could not give a guideline for unfairness for consumers.[96] As for Turkish law, the unfairness can only be when the parties do not negotiate on the terms that form the contract and that means the bargaining power has to be enforced otherwise it cannot make the term valid in the contract.[97] For instance, Turkish Supreme Court Assembly of Civil Chamber's decision regarding good faith in the case of 2017/2801E.- 2018/86K. 'The court decided that the land owner's property was to be cautioned to define as public land…however the division did not inform the land owner for this inquiry and he did not have any opportunity to negotiate prices on his land for that reason the division misrepresented itself and not acted in good faith.' As for English law, the unfairness can only be detected if it is in an exempt category of CRA as it called grey list.[98] However, with the grey list there needs to be some sort of imbalance between the party's rights and obligations. For example, in the case of Director General of Fair-Trading v. First National Bank [2001] UKHL 52, [2002] 1 AC 481, [17], the Supreme Court stated that there is a significant imbalance over the loan contract as to the customer did not know the loan contract in depth to negotiate on the subject as the customer felt the need to agree with the terms.[99] In DG of Faith Trading v First National Bank Plc," it was stated by Lord Bingham that;

'The requirement of good faith in this context is not an artificial or technical concept [...] It looks to good standards of commercial morality and practice. It lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the regulations [UTCCR] are designed to promote. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position."[100]

It appears to be that the principle of good faith is slowly, but definitely, take part into be accustomed to English law.[101] However, English law is not yet embraced the principle of good faith, hence, for the present day, it does not disregard the principle. [102] For CRA, that is why the ultimate protection that needs to be focused on consumers as to the knowledge of their own is not the same as to businesses that's why the problem of bargaining power still exist. As for Turkish law, good faith plays a huge role for consumer contracts as to it is essential norm of Turkish law to define and overcome bargaining power imbalances in which English law, slowly but surely acknowledging the principle of good faith in contract law.[103] However, in the context of the assessment of an unfair term in English and Turkish law has different approaches. For English law, CRA has fairness tests that determines whether the terms in the contract as it stated as unfair, yet for Turkish law, there is no established test regarding fairness as to courts takes in consideration of good faith and honesty principle case by case and determine whether the term that is stated as unfair is really unfair. [104]As it stated previously, in Turkish law, the courts decide whether a term is unfair if it is not negotiated that the contract did not established in good faith. [105] Bargaining power in Turkish contract law has more significant as to if it is not negotiated the term would be invalid. However, as to English contract law, if a term is not negotiated properly it does not mean it is unfair as to standard form of contracts in English law has subtle norms for quick way of forming a contract. Furthermore, CRA has terms as called grey lists that significantly shows in many situations the unfairness can be detected, yet, there is also significant amount of gap between bargaining power versus take it or leave it approach in standard form of contracts.[106] It does not mean that Turkish law is prominent of detecting inequality of bargaining power yet the lack of detection regarding unfairness is slow but steady as to there is no specific way of determining the unfairness. The judge needs to assess each and every situation on its own and decide whether the term is unfair or not. In Turkish law, where the legislation has not provided a clear answer, to accommodate results, the Supreme Court has consistently interpreted the current resolutions in order to offer fairness in every legal situation.[107] Additionally, the Supreme Court have created certain established qualities to overcome unfairness. The Court has, for example, decided that if there is an imbalance of the outcome of the contract within an economic deterioration of contractual parties, applies certain constitutional rights.[108] For example, the Court of Appeal of the Fourteenth Civil Chamber's decision in the case of 17.02.2009 and 2008/13918 E., 2009/1992 K.; the case relates to the request for adaptation arising from the rent of agricultural products due to weather problems and next season there would not be enough products.[109] The plaintiff was in accordance with the principle of good faith and honesty rule however the defendant was not.[110] The reasoning behind the decision is that; '..the principle of contractual adherence to contractual law is the basis of contractual law as required by the rule of law security, integrity and honesty. When the extraordinary situations mentioned in article 282 distort the pre-existing contract balance, there is a gap in the contract and the transaction basis is shaken because the parties have not taken any precaution against them beforehand. For this reason, the decision that was made by the first court needs to be reversed.' Indeed, even on problems explicitly secured by statutory standards, the Court has considered the parties rights and obligations, and mollified the lawful outcomes of a perhaps excessively inflexible or basically unacceptable use of statutory attitudes without waiting for authoritative intercession.[111] This is the reason that in CPA there is no fairness test to decide whether a term is unfair as to social norms and judicial discretion in Turkish law has more prominent place within good faith and honesty principle.[112] As for English law, the fairness test and the list purpose to provide businesses to be more informed; as to they have to act accordingly otherwise the term could easily called unfair as such if it is not transparent that can be unfair to consumer whether he/she has knowledge of the situation.[113] The process regaining bargaining power for consumer in a contract is based on the terms whether the terms as plain as it should be so that the consumer can understand the outcomes as well as the obligations and rights so that there would not be significant imbalance. Currently in our decade, the definition of the bargaining power has improbable effect on consumer contracts as to both English and Turkish law tries to overcome the disadvantages that may businesses outmanoeuvre the legislations to have the majority of the bargaining capacity in contract dealings.


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