How, and on what conditions, do Turkish and English law intervene in freedom of contract to protect the weaker party against unfair terms and inequality of bargaining power — in both business-to-business and consumer dealings?

This article examines the legal and authoritative interventions made within the scope of freedom of contract under both Turkish and English law, and considers how, and under what conditions, those interventions — shaped by a range of non-contractual economic and social expectations — affect bargaining power in contracts. It focuses in particular on bargaining power in contractual situations and on the principle of protecting the weaker party, a principle first codified in Turkey in the 2012 Code of Obligations. To understand the Turkish position, it helps to understand the judge-made contractual justice that has long shaped both consumer and commercial contracts there, and the way the legislature later systematised the case law that had imposed fairness requirements on the Turkish market. The central question is this: is the protection of bargaining power in business and consumer contracts under English law similar to, or different from, that under Turkish law?

I.The history of Turkish contract law
On the proclamation of the Turkish Republic in 1923, Turkey began to adopt modern laws, including Swiss private law. The pragmatic rather than conceptual character of the Swiss solutions, and their responsiveness to customary needs, were the principal reasons the Turkish legislature chose to adopt the Swiss Civil Code.

Codifying the Swiss Civil Code gave Turkish judges a period of adaptation between the old Ottoman system and the new one they were trying to build.

It enabled them to fit the developing law to the social prerequisites of a rapidly growing society. The legislature also enacted an orderly Commercial Code, drawing principally on Swiss law and additionally on German law.

Because the Turkish legal institutions had adopted Swiss and German statutory standards — and, in interpreting them, frequently drew on the scholarly opinion of those countries — the Turkish courts have not hesitated to rely on the learning of those jurisdictions in reaching and explaining their own decisions.

In 2012, the new Code of Obligations No. 6098 (the “Turkish Code of Obligations” or “TCO”) was adopted, which for the first time contained rules governing the general conditions of contract in business-to-business relationships.
Articles 20 to 25 of the TCO now govern the formation, applicability and interpretation of general contract conditions.
Sections 305 et seq. of the German Civil Code (BGB) served as the template for the new Turkish provisions. As Roscoe Pound observed, the origin of an agreement was essentially the consent of the parties.
Yet parties who lose the power to negotiate, and become economically dependent on the other side, have generated a body of case law in which social justice has been deployed to overcome unfairness, reflecting the interplay of competing social norms.

Before the 2012 reform, Turkish judges were already obliged to review the terms of a contract. This required interpreting the agreement, and at times effectively making law where there was no provision suited to the legal issue — in substance, applying a fairness test to standard contract terms.
The Supreme Court held that, to protect a party in a financially disadvantaged position, judges could intervene in the outcomes of contracts, justifying such interpretations by reference to the constitutional principle of protecting the vulnerable.

Both that constitutional principle and the doctrine of good faith played a major role in the judge-made law, treating the protection of the vulnerable and their interests as a duty of the court. According to the Constitutional Court, the State is obliged to protect the vulnerable, a constitutional duty derived from Article 17(1) of the Constitution:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.”

Article 17(1) thus has a direct bearing on contractual relations. The Court has drawn on a range of protective devices — constitutional principles, the doctrine of good faith and contractual fairness — and in this context has tended to prioritise fairness over competing objectives.

II.Unfairness in Turkish contract law

In pursuit of greater contractual fairness through both legislative and substantive control, the TCO made substantial changes to the law on general standard terms.

The rules now embedded in Articles 20 to 25, modelled in part on Sections 305 et seq. BGB, give the judge an express framework allowing a degree of flexibility in assessing the fairness of standard terms.
Judges may strike down terms procured through abusive bargaining practices — for example, those involving duress or misrepresentation — that take advantage of the weaker party.
Like Turkish law, English contract law applies controls to standard terms; the definitions of unfairness differ in their rules, but the outcomes are broadly comparable. Article 20 of the TCO defines general conditions as follows:

“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.”

General terms of agreement are subject to increasingly stringent requirements under the law. A note in a contractual provision asserting that all conditions were negotiated — where in fact the other party was in a disadvantaged position — cannot be used to evade the strict application of the law to general conditions.
Instead, solid proof of genuine negotiation between both parties is essential. General conditions become part of the agreement only if one party expressly draws them to the other’s attention, so that the latter has the opportunity to examine them and then, expressly or by implication, consent to them. Turkish scholarship has sought to extend protection to the weaker party — whether or not a consumer — against unfair terms.
The Supreme Court has applied Article 20 in this way, for instance in the case of a bank that increased the rate under an agreement without informing the customer.
It held that not only businesses but also individuals purchasing goods and services for commercial purposes may require the protection offered by Article 20, since the stronger party’s bargaining capacity can be set aside where there has been no negotiation over the general terms.

Article 21(1) of the TCO sets out a two-stage test for deciding whether a party not in an equal bargaining position has agreed to unfavourable standard terms.
For standard terms to be treated as incorporated, the party relying on them must, at the conclusion of the agreement, expressly draw the existence of those terms to the other party’s attention; the other party must have the opportunity to learn their content; and the terms must, on the whole, have been approved by both parties.
Under Article 21(2), the judge decides whether, in the circumstances and particularly given the outward appearance of the agreement, the terms are so imbalanced that the party seeking to rely on them can no longer do so.
Standard terms that do not satisfy Article 21(1) or 21(2) do not form part of the contract.

Before 2012, the Court had developed its own standard for the incorporation of standard terms.
Such terms became part of the agreement where one party offered the other the chance to examine and negotiate them.
The Supreme Court held that, where an agreement contained unfair standard terms, those terms had no effect on the remaining terms and were void.
A party could not argue that it would not have entered the agreement had it foreseen such partial invalidity.
Today, the substance of those decisions is reflected in Article 22 of the TCO, under which unfair standard terms are construed against the party who introduced them into the contract.
Article 24 contains a specific rule prohibiting provisions that allow, or have the effect of allowing, one party unilaterally to vary the terms to its own benefit and to the other’s disadvantage. An equivalent prohibition appears in the Annex to Directive 93/13, which gives an indicative list of terms that may be regarded as unfair.
Article 25 invalidates terms that place one party at a significant imbalance of rights and obligations, and at a disadvantage.

The Code does not, however, contain an illustrative list of what counts as unfair. Article 25 identifies unfair terms by reference to the parties’ obligation to act in good faith, and controls terms that have not been negotiated.
As noted, there is no statutory list of unfair terms or of their effect on contractual rights and obligations; that is left to the judge. By contrast, English law — whether under the Unfair Contract Terms Act 1977 (“UCTA”) or the Consumer Rights Act 2015 (“CRA”) — provides lists of terms that may be regarded as unfair, and addresses the position of negotiated-but-unfair terms.
English courts approach unfairness by asking whether inequality of bargaining power is significant enough to displace genuine negotiation. Good faith plays a major role in both systems. In Turkish law it can be a free-standing basis for fairness, since every negotiation must be conducted in good faith.
In English law, by contrast, there is continuing debate over whether good faith should be intertwined with significant imbalance, with some courts and commentators treating the two as inseparable when dealing with bargaining power and fairness.

Under English law, parties contracting on standard terms do not negotiate those terms; the arrangement is, in substance, “take it or leave it” on the part of the more powerful party.
This is especially common in consumer contracts, where the seller or trader effectively imposes its terms. The CRA, however, protects consumers: an unfair term ceases to bind the consumer, though the remainder of the contract generally remains effective.

In Turkey, the Supreme Court’s decision in 2014/13315 E. / 2014/13503 K. concerned commission, early-settlement and mortgage fees charged under a loan agreement. The Court observed that the other party may not be fully aware of the existence or content of general transaction terms, may accept them without being equipped to understand them or their possible consequences, or may simply lack bargaining power; and it held that the TCO’s rules against unfair terms protect the interests of all contracting parties, businesses as well as consumers.
Both parties there were businesses, yet the central question remained the same: whether the unfairness of the terms was acknowledged when the contract was formed and, if not, whether it could be imposed on the other party.

Turkish judges therefore need not grapple with the often-difficult distinction between consumers and businesses. Because the TCO extends protection against unfair terms to businesses as well, it offers broader protection in this respect than EU law.

In England, UCTA made a comparable impact through its reasonableness test for exclusion and limitation clauses in business-to-business contracts.
Even so, although the TCO aims to protect the interests of all parties and not just consumers, it remains narrower in scope than the regimes of some other European states that extend the control of unfair terms more widely.

In Océano Grupo Editorial SA v Murciano Quintero (C-240/98), for example, the Court of Justice stated:

“the system of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-à-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.”

This reasoning — the protection of the weaker party — has underpinned several decisions in which the Court of Justice found compelling reason not to confine protection to consumer contracts but to extend it to small and medium-sized enterprises.
Faced with regulation that demands more time and resources than they have, smaller businesses are vulnerable to the difficulties of negotiation, especially in dealings with larger companies.
That is why the TCO extends the protection of the weaker party to small and medium-sized businesses.
The practical effect in Turkish law is that the weaker party enjoys broader protection even when acting on a professional basis. The comparison between the two systems is best drawn by treating business-to-business and business-to-consumer contracts separately.

III. Business-to-business contracts: UCTA 1977 and the TCO

Business-to-business contracts under Turkish and English law share considerable common ground in their treatment of unfair contractual dealings, even though Turkish law is civilian while English law is statutory and common-law based. In England, UCTA plays a central role, particularly in relation to exclusion clauses, and applies only to business liability — that is, liability arising from things done in the course of a business.

In Turkey, business-to-business contracts are governed by the TCO and the Turkish Commercial Code (“TCC”); Article 23 of the TCC refers back to the TCO in dealing with commercial contracts.
As noted, the TCO contains rules on standard contract terms in business relationships.

Both systems rest on the assumption that parties to a commercial contract have freely negotiated their bargain — the doctrine of freedom of contract. That assumption attracts criticism in both jurisdictions: where parties contract on standard terms, the essential premise of freedom of contract is undermined, because the parties’ bargaining strength is not in genuine balance.
Turkish law responds through the judge-making process, drawing on social norms and judicial discretion. Freedom of contract is itself limited: under Article 19 of the TCO the parties may freely choose the subject matter and terms of their agreement, but the State has introduced regulation into the economy and engages in economic activity of its own. Contracts that violate the law or the Constitution, that offend morality or public policy, that infringe personal rights, or that are impossible to perform, are not valid.

English courts intervene, or set a contract aside, only where business liability is excluded in circumstances of unequal bargaining and serious disadvantage, or where the contract offends public policy (for instance, illegality at common law or by statute).
While it may be acceptable for parties of equal bargaining power to exclude or limit liability, the courts and Parliament have been reluctant to intervene where a stronger party has imposed an exclusion on a weaker one.

Goodlife Foods Ltd v Hall Fire Protection Ltd [2018] EWCA Civ 1371 illustrates the modern, hands-off approach. A specialist fire-suppression contractor relied on a broad clause in its standard terms to exclude liability after an allegedly defective component caused a fire at the claimant’s factory. The clause was tested against UCTA’s reasonableness requirement — and the Court of Appeal, upholding the trial judge, held that it was reasonable and effective, dismissing the appeal.

Coulson LJ’s reasoning turned on the parties’ equal bargaining power, the fact that the claimant had its own insurance, and the fact that it had been offered the option of contracting without the exclusion at a higher price; the clause had also been clearly and fairly drawn to its attention. As Coulson LJ explained, every exclusion clause “must be considered in its contractual and factual context”: some clauses will fall on one side of the line and some on the other, and it is difficult to lay down prescriptive guidelines.

He noted the recent trend in the UCTA case law towards upholding terms freely agreed between commercial parties. The lesson of Goodlife is that the courts are reluctant to rescue a commercial party from a bad bargain.
In Turkish law, Article 20 of the TCO addresses the situation where a contract contains non-negotiated standard terms: the validity of those terms must be examined, while leaving intact the terms that were genuinely negotiated, consistently with freedom of contract.
The purpose of Article 20 is precisely to detect non-negotiated terms and so guard against inequality of bargaining power.
Controlling unfair terms in this way raises a practical difficulty, namely whether the weaker party in fact had any opportunity to influence terms that the stronger party may have imposed abusively.
The aim of Article 20 is to avoid the problems of distinguishing negotiated from non-negotiated terms and to protect more effectively against inequality of bargaining power.

English courts, by contrast, take the view that they should guide contracting parties but not interfere with the outcomes of a contract.
On this view, the court should intervene only where there is a significant imbalance in fairness. As Chadwick LJ put it in Watford Electronics Ltd v Sanderson CFL Ltd [2001], the 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 properly have been understood or considered.
The unfairness must reach a point at which it is unreasonable to expect the weaker party to proceed, yet the party has no realistic way out; that is why the courts intervene under section 11 of UCTA, and in some cases through doctrines such as undue influence.

In Turkish law, a significant imbalance may amount to excessive exploitation under Article 28 of the TCO:

“If there is a clear disproportion between mutual acts in a contract, [and] if the disproportion [ate act] is performed by taking advantage of the [other] party’s inconvenience, inconsideration or inexperience, the [aggrieved party may, within the relevant period,] seek to eliminate the disproportion between the acts … This [right] may be exercised within one year starting from the date the [party] learned [of the relevant circumstances], and within five years starting from the date the contract is established.”

Here the disproportion must arise from the taking of advantage of the weaker party; but Turkish law gives that party an exit, so that it need not feel pressured to continue with the contract. Specific time limits govern whether the contract is affirmed or terminated for lack of fairness. The hallmark of unfairness, again, is the absence of genuine bargaining power: the weaker party did not truly agree, but felt it had no real choice. In Turkish Supreme Court, 1st Civil Chamber, E. 2012/1093 K. 2012/10436 (1 October 2012), a father had mortgaged his own house to relieve his daughter’s financial distress and alleged that the arrangement had been procured by fraud at a very low value; the Court held that the lower court’s investigation had been incomplete, that the plaintiff was plainly in a significantly disadvantaged position and had been taken advantage of, and that the matter required proper inquiry into the value and the fraud allegation.

Good faith is central to the negotiation of terms in Turkish law. Article 2 of the Turkish Civil Code (No. 4721) provides that everyone must act in good faith in exercising rights and performing obligations, and that the manifest abuse of a right is not protected by law.
In the decision of the Assembly of Civil Chambers in E. 2000/3-1803 K. 2000/1813 (20 December 2000), for instance, the Court treated a party who had used a utility supply without subscription or agreement as nonetheless bound by a contract-like relationship, by reference to the good-faith principle.

In short, each party must negotiate in good faith and must not place the other at a disadvantage. Unlike English law, Turkish law has no separate reasonableness test for business-to-business contracts; instead it defines a reasonable term through the principle of good faith.
Where a party acts in bad faith, the law withholds its protection.

English courts, by contrast, have long resisted a general doctrine of good faith.
A duty to negotiate in good faith was rejected on the basis that it would threaten the legitimate interests of commercial parties, who are expected to be free to advance their own positions. That is not to say that English law lacks interpretive techniques bearing on good faith; rather, it has developed them piecemeal.
As Piers notes, English courts and scholars increasingly find ways to give effect to good-faith considerations and to engage with comparable standards.
Sims describes the result as a set of concentric circles around the basic moral notion of honesty:

“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.”

Lord Bingham captured the contrast in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, observing that, although many legal systems accept an overriding principle that parties should act in good faith, English law has characteristically committed itself to no such principle but has instead developed piecemeal solutions in response to demonstrated problems of unfairness.

Steyn has argued that there would be little need to adopt a good-faith principle if the courts properly understood the parties’ reasonable expectations, while Piers maintains that good faith pervades English law even without express reference to it.
Unlike the civilian systems, it has never been a general principle in England; Lord Denning sought to make it one, but the House of Lords declined.
Piers explains the divergence by reference to legal method: the common law’s inductive, case-by-case reasoning treats principles such as good faith as distilled from practical solutions, whereas the civilian preference for general principles such as good faith is tempered by a reluctance to adopt still broader principles that might be abused.
The Turkish Supreme Court expressed this in its decision of 25 January 1984 (E. 1983/3, K. 1984/1), observing that the rule in Article 2/2 of the Civil Code introduces an exception to the absoluteness of the law and of rights.

The difficulty of defining bargaining power in both systems raises the question whether the safeguards against unfairness can themselves serve to measure the adequacy of the balance between the parties. Neither English nor Turkish law restricts the parties’ freedom to contract beyond the limits already noted; in both, the central expectation is that contracts are formed on a footing of equal bargaining power, and where a contract contains unfair terms each system has its own means of response.

IV. Business-to-consumer contracts: the CRA 2015 and the Turkish Consumer Protection Act

A business-to-consumer contract is one between a trader and a consumer for the supply of goods, digital content or services.
In England, the Consumer Rights Act 2015 came into force on 1 October 2015 and governs consumers’ rights and protection.
In Turkey, the Consumer Protection Act No. 6502 (“CPA”) was enacted in 2013 and came into force on 28 May 2014.
In both systems a consumer is, broadly, a natural or legal person acting for purposes outside any trade or profession.
Both Acts contain provisions on unfair terms in consumer contracts, which are best examined in turn.

In Turkey, Article 5 of the CPA has a substantial bearing on the protection of consumers against unfairness:

“(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.”

A term is therefore unfair if it is incorporated without being negotiated with the consumer — mirroring the “take it or leave it” character of standard-form contracting in English law — and if it creates a significant imbalance in the parties’ rights and obligations contrary to good faith.
A regulation of the Ministry of Customs and Trade describes terms that may be regarded as unfair.
Under the CPA, an unfair term is void, but the contract as a whole remains valid; only the offending provision falls away. In English law, section 62(4) of the CRA provides that a term is unfair where, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.
An unfair term does not bind the consumer, while the rest of the contract continues to operate so far as it can. In both systems, then, the protection of the consumer is bound up with the requirement of good faith.
It may seem surprising that the CRA embraces good faith, given English law’s traditional reluctance. The concept of good faith is the first striking feature of the consumer-contract provisions.
In Smith v Hughes the court indicated that English contract law was not accustomed to a good-faith principle, a position maintained in Walford v Miles, where the House of Lords held there was no such principle to invoke.
During the passage of the Consumer Rights Bill, however, a peer observed that difficulty arises from the interplay of two provisions: the court may assess a contract term for fairness unless it falls within an exempt category, and core terms are exempt from assessment if they are prominent and transparent.
In English law, then, an exempt core term that is transparent and prominent is treated as fair. This raises a real question for bargaining power: if a trader presents a consumer with terms that are all transparent and prominent, the importance of negotiation may be set aside in the name of fairness. Bargaining power should not be underestimated; its absence is most clearly seen where the power to negotiate has been taken from a party who is then required to proceed regardless.

The debates preceding the CRA recognised that the basic structure would remain, but that consumer terms should be plain and intelligible if fairness was to be achieved.
There can never be perfectly equal bargaining power, but that does not deprive the exempt categories of value as a guide to unfairness.
In Turkish law, by contrast, unfairness turns on the absence of negotiation: where terms are not negotiated, bargaining power has not genuinely been exercised, and the term cannot stand.
In the decision of the Assembly of Civil Chambers in 2017/2801 E. / 2018/86 K., for example, a public body that failed to inform a landowner about the reclassification of his land — depriving him of any opportunity to negotiate — was held to have acted contrary to good faith. In English law, unfairness is assessed against the so-called grey list in the CRA, coupled with a requirement of significant imbalance between the parties’ rights and obligations. In Director General of Fair Trading v First National Bank [2001] UKHL 52, the House of Lords found a significant imbalance under a loan agreement where the customer did not understand the agreement well enough to negotiate and felt obliged to accept its terms.

Lord Bingham explained the good-faith requirement in that context:

“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 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, [or] weak bargaining position.”

Good faith thus appears to be entering English law gradually but unmistakably.
English law has not yet adopted it as a general principle, but it no longer disregards it.
For the CRA, the central concern is the consumer, whose knowledge is not that of a business; that is why the problem of bargaining power persists. In Turkish law, good faith is fundamental to consumer contracts and is the essential means of identifying and overcoming imbalances of bargaining power; in English law it is being acknowledged more cautiously.

The two systems also assess unfair terms differently. The CRA contains fairness tests for determining whether a term is unfair; Turkish law has no settled test, and the courts assess good faith and honesty case by case to decide whether a term said to be unfair really is.
As noted, Turkish courts treat a term as unfair where it was not negotiated and the contract was therefore not formed in good faith.
Bargaining power thus carries greater weight in Turkish contract law: a non-negotiated term is invalid. In English law, by contrast, a term that was not properly negotiated is not for that reason alone unfair, because standard-form contracting is an accepted, expedient mode of contracting. The CRA’s grey list shows that unfairness can frequently be detected, yet a significant gap remains between the ideal of genuine bargaining and the reality of “take it or leave it” standard terms.

This is not to say that Turkish law is better at detecting inequality of bargaining power; rather, because there is no fixed test, the detection of unfairness is slow but steady, and the judge must assess each situation on its own facts.

Where the legislation has not supplied a clear answer, the Turkish Supreme Court has consistently interpreted existing rules so as to deliver fairness in every situation, developing settled approaches to overcome unfairness. It has held, for example, that where an imbalance in the outcome of a contract reflects an economic deterioration affecting the parties, certain constitutional rights may apply.

In the decision of the 14th Civil Chamber of 17 February 2009 (2008/13918 E., 2009/1992 K.), concerning a request to adapt an agricultural lease after weather damage threatened the following season’s crop, the plaintiff had acted in accordance with good faith and honesty while the defendant had not.
The Court reasoned that adherence to the contract is the foundation of contract law, as required by legal certainty, integrity and honesty; but where extraordinary circumstances of the kind mentioned distort the pre-existing contractual balance, a gap arises and the basis of the transaction is shaken, because the parties took no precaution against them, so that the first-instance decision had to be reversed. Even on matters expressly governed by statute, the Court has weighed the parties’ rights and obligations and tempered the legal consequences of an unduly rigid or unacceptable application of the rules, without waiting for legislative intervention.

This is why the CPA contains no fairness test: in Turkish law, social norms and judicial discretion, operating through good faith and honesty, occupy a more prominent place.

In English law, the fairness test and the lists serve to keep businesses better informed: a trader must act accordingly, since a term that is not transparent may readily be held unfair, whatever the consumer’s own knowledge.
Restoring a consumer’s bargaining power thus depends on whether the terms are plain enough for the consumer to understand the obligations and rights they create, so that there is no significant imbalance. In both systems today, the protection of bargaining power has assumed real importance, as each tries to prevent businesses from outmanoeuvring the legislation to capture the lion’s share of bargaining power in their dealings.

V. The English position today: the Digital Markets, Competition and Consumers Act 2024

The English consumer-protection landscape described above has since shifted significantly. The Digital Markets, Competition and Consumers Act 2024 (“DMCCA”) received Royal Assent on 24 May 2024, and its principal consumer-law provisions were brought into force on 6 April 2025. The DMCCA does not displace the Consumer Rights Act 2015; the CRA’s unfair-terms regime, including the fairness test and the grey list discussed above, remains the bedrock of the law on unfair terms in consumer contracts. What the DMCCA does is build a modernised enforcement and unfair-practices framework on top of that foundation, replacing much of the older apparatus of the Enterprise Act 2002 and the Consumer Protection from Unfair Trading Regulations 2008.

Three features are of particular relevance to bargaining power and fairness. First, the DMCCA refreshes and consolidates the list of commercial practices that are unfair in all circumstances, expressly capturing newer abuses such as “drip pricing” — the practice of advertising a headline price and adding further unavoidable charges later in the transaction — and the publication of fake consumer reviews. These are practices that exploit the asymmetry of information and attention between trader and consumer, and that distort the consumer’s ability to bargain on a fully informed basis. Second, and most significantly for compliance, the DMCCA equips the Competition and Markets Authority with direct enforcement powers, allowing it to determine breaches and impose substantial financial penalties — up to the greater of £300,000 or ten per cent of a business’s global annual turnover — without first obtaining a court order. This is a marked departure from the earlier, court-led model of civil enforcement and considerably raises the stakes for traders dealing with consumers. Third, the DMCCA introduces new protections in areas where standard-form terms have historically operated to the consumer’s disadvantage, notably subscription contracts, and updates the framework for alternative dispute resolution in consumer disputes.

For the comparison drawn in this article, the DMCCA is best understood not as a change of principle but as a strengthening of enforcement. The substantive English test for an unfair term — significant imbalance, contrary to good faith, to the detriment of the consumer — is unchanged, and the underlying tension between genuine bargaining and standard-form contracting remains. What has changed is the practical pressure on traders to deal fairly: the prospect of direct regulatory fines gives the fairness standard considerably more force than it carried when the original analysis above was written. In that respect English law has moved a little closer in spirit to the Turkish approach, in which the protection of the weaker party is treated as a positive duty rather than a matter to be vindicated only through private litigation — even though the two systems continue to reach that goal by markedly different routes.

At a glance — how the two systems compare
Both Turkish and English law intervene in freedom of contract to protect the weaker party, but they do so through different mechanisms. The table below summarises the main points of contrast drawn out in this article.



Notes and references

1. Erhan Adal, Fundamentals of Turkish Private Law (3rd edn, Legal 2005); Erdem Büyüksagis, ‘Turkish Contract Law Reform: Standard Terms, Unforeseen Circumstances, and Judicial Intervention’ (2016) 17 European Business Organization Law Review.
2. Erdem Büyüksagis, ‘Turkish Contract Law Reform’ (2016) 17 EBOR; Tuğrul Ansay and Don Wallace, Introduction to Turkish Law (Kluwer Law International 2011). Ilhan Helvacı, Turkish Contract Law (Springer International Publishing 2018).
3. Turkish Obligation Code 2012, Official Gazette (resmigazete.gov.tr)
4. William L. Grossman, ‘The Legal Philosophy of Roscoe Pound’ (1935)
5. Cenk Akıl, ‘Hakimin Hukuku Kendiliğinden Uygulaması İlkesi’ (2008) 57 Ankara Üniversitesi Hukuk Fakültesi Dergisi.
6. Hans-Bernd Schäfer and Hüseyin Can Aksoy, ‘Alive and Well: The Good Faith Principle in Turkish Contract Law’ (2015) 42 European Journal of Law and Economics; Şener Akyol, Dürüstlük Kuralı ve Hakkın Kötüye Kullanılması Yasağı (Yetkin Yayıncılık 2006); Tuğrul Ansay, D. Karlen and I. Arsel, ‘Civil Litigation in Turkey’ (1960) 9 The American Journal of Comparative Law.
7. ‘Constitution of the Republic of Turkey’ (global.tbmm.gov.tr, 1982)
8. Ejan Mackaay, ‘Good Faith in Civil Law Systems: A Legal-Economic Analysis’ [2012] Revista chilena de derecho privado.
9. Mehmet Ayan, Borçlar Hukuku Genel Hükümler (9th edn, Mimoza 2015).
10. ‘The New German Law of Obligations: An Introduction’, German Law Archive (germanlawarchive.iuscomp.org) accessed 5 September 2019.
11. Ilhan Helvacı, Turkish Contract Law (Springer International Publishing 2018).
12. ‘Türk Borçlar Kanunu No. 6098’ (mevzuat.gov.tr)
13. Mehmet Ayan, Borçlar Hukuku Genel Hükümler.
14. İlhan Kara, Tüketici Hukuku (2012).
15. Lucinda Miller, ‘After the Unfair Contract Terms Directive: Recent European Directives and English Law’ (2007) 3 European Review of Contract Law.
16. Hans-Bernd Schäfer and Hüseyin Can Aksoy, ‘Alive and Well: The Good Faith Principle in Turkish Contract Law’ (2015) 42 European Journal of Law and Economics.
17. Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998).
18. Antoine Braci, ‘Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer’ (2015) 26 King’s Law Journal.
19. John Tillotson, ‘Exclusion Clauses, Consumer Protection and Business Reasonableness: The Unfair Contract Terms Act 1977’ (1978) 12 The Law Teacher.
20. Océano Grupo Editorial SA v Murciano Quintero, CJEU, 27 June 2000, C-240/98, ECR I-04941, [25].
21. Sema Bayraktar, ‘New Regulations: Challenge or Opportunity for Turkish SMEs?’ (2015) 7 Qualitative Research in Financial Markets.
22. S. B. Marsh and J. Soulsby, Business Law (7th edn, Nelson Thornes 2002).
23. M. Király, review of A. Hartkamp and others (eds), Towards a European Civil Code (2nd revd edn, Kluwer Law International 1998) (1998) 3 Uniform Law Review.
24. Goodlife Foods Ltd v Hall Fire Protection Ltd [2018] EWCA Civ 1371; see also (Fenwick Elliott, 2018)
25. The Unfair Contract Terms Act 1977, s 11.
26. Maud Piers, ‘Good Faith in English Law — Could a Rule Become a Principle?’ (journals.tulane.edu, 2011) accessed 5 September 2019.
27. Vanessa Sims, ‘Good Faith in English Contract Law: Of Triggers and Concentric Circles’ [2004] Ankara Law Review.
28. The Consumer Rights Act 2015; Samuel Martin, ‘The Evolution of Good Faith in Western Contract Law’ [2018] SSRN Electronic Journal.
29. The Consumer Rights Act 2015; ‘Consumer Rights Bill’, HL Deb 29 October 2014 (hansard.parliament.uk) accessed 5 September 2019.

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This article is provided for general information only and reflects the law as understood at the date of writing. It does not constitute legal advice and should not be relied upon as such. References to Turkish court decisions and Turkish-language sources are reproduced as cited in the underlying research.