UNFAIR TERMS IN CONSUMER LAW

One of the problems consumers frequently encounter in their daily lives is issues related to unfair terms. The concept of unfair terms holds a significant place in consumer law to protect consumer rights. In this blog post, we will discuss what the concept of unfair terms means in consumer law, Supreme Court decisions regarding unfair terms, the consequences of having unfair terms in a contract, and situations that favor the consumer. Raising consumer awareness and enabling them to protect their rights is crucial. This article will provide information on how consumers can act in situations they may encounter in their daily lives.

THE CONCEPT OF UNFAIR TERMS IN CONSUMER LAW

In consumer law, the concept of unfair terms is defined by laws and regulations designed to protect consumers, and refers to clauses in a contract that unfairly disadvantage the consumer. These unfair terms are considered to be clauses imposed without negotiation with the consumer and are not in the consumer's best interest. Regulations exist to declare these terms invalid and remove them from the contract in order to protect the consumer.

Supreme Court rulings are of crucial importance in consumer law regarding unfair terms. The concept of unfair terms in consumer law is similar to the general terms and conditions of transactions in the Code of Obligations. The Supreme Court, in disputes arising within the scope of consumer law, provides exemplary rulings on unfair terms, thereby ensuring consumer protection. Supreme Court decisions are highly effective in determining unfair terms and the legal measures to be taken in relation to them.

Consumershave legal rights to protect themselves against unfair terms. They can pursue their rights through legal channels, or they can apply to the relevant authorities to have the unfair terms identified and removed from the contract. In this way, the consumer is rightfully protected and avoids suffering any harm.

SUPREME COURT

3rd LAW DIVISION

E. 2020/8138

K. 2021/4360

Date: 20.04.2021

* NEGATIVE DETERMINATION CLAIM ARISING FROM A MORTGAGE RELATIONSHIP (Unfair terms are contract terms included in the contract without negotiation with the consumer and cause an imbalance against the consumer in a way that violates the principle of good faith in the rights and obligations arising from the contract - Unfair terms in contracts concluded with the consumer are absolutely null and void)

* UNFAIR TERMS IN CONTRACTS CONCLUDED WITH CONSUMERS ARE ABSOLUTELY NULL AND VOID (The provisions of the contract other than the unfair terms shall remain valid/In this case, the party drafting the contract cannot claim that they would not have entered into the contract with the other provisions if the terms deemed absolutely null and void had not been included – If a contract term was pre-prepared and included in a standard contract, and the consumer could not influence its content, it shall be accepted that the contract term was not negotiated with the consumer/If the party drafting the contract claims that a standard term was individually negotiated, they shall bear the burden of proof.)

* ERRONEOUS ASSESSMENT (In this case, Article 1 of the "Contract Terms" section of the Mortgage Deed issued by the Land Registry Office constitutes an unfair term – Since the decision of the First Instance Court to accept the case was correct, the Regional Court of Appeal should have rejected the defendant's appeal on its merits. However, the Regional Court of Appeal, with an unfounded justification, accepted the defendant's appeal, overturned the decision, and dismissed the case, which is contrary to procedure and law/The decision should be reversed)

6502/m. 5

2004/m. 72

SUMMARY: This case concerns a claim for negative declaratory judgment arising from a mortgage relationship. An unfair term is a contractual term included without negotiation with the consumer that creates an imbalance against the consumer in a way that violates the principle of good faith in the rights and obligations of the parties. Unfair terms included in contracts concluded with consumers are absolutely null and void.

The provisions of the contract, excluding unfair terms, remain valid. In this case, the party drafting the contract cannot claim that they would not have entered into the contract with the other provisions if the terms deemed definitively void had not been present. If a contract term was pre-prepared and included in a standard contract, and the consumer had no control over its content, it is considered that the contract term was not negotiated with the consumer. If the party drafting the contract claims that a standard term was individually negotiated, they bear the burden of proof.

In this case, Article 1 of the "Contract Terms" section of the mortgage deed issued by the Land Registry Office constitutes an unfair term. Since the first instance court's decision to accept the claim was correct, the regional court of appeal should have rejected the defendant's appeal on its merits. However, the regional court of appeal, with an unfounded justification, accepted the defendant's appeal, overturned the decision, and dismissed the case, which is contrary to procedural rules and law. For these reasons, the decision should be overturned.