Unfair terms applied in the loans obtained from banks constitute the subject of legal disputes and consumer courts hear the cases in such disputes. There are many factors to determine the illegality of the agreements made between the bank and the borrower.
As revealed by the decisions of the Civil Chamber of the Court of Cassation, standard contracts are defined as a type of contract, the content of which is partially or completely composed of general transaction conditions, not as a result of mutual negotiations of the parties, but on the contrary, provisions prepared in advance by one of the parties or a third party, and Article 6 of the Law No. 4077 on the Protection of Consumers amended by Law No. 4822. Article 6 of the Law No. 4077 on the Protection of Consumers amended by the Law No. 4822 stipulates a presumption that the provisions contained in standard contracts, and in particular the general terms and conditions that constitute the content of these contracts, are unfair terms in the Directive 1993/13/EEC of the Council of Europe dated 05.04.1993 and in the European Union countries that have transposed this directive into their domestic laws.
LAW ON CONSUMER PROTECTION
According to the third paragraph of Article 6 of the Law on Consumer Protection, “If a contract term has been prepared in advance and the consumer has not been able to influence its content, especially because it is included in the standard contract, that contract term is deemed not to have been negotiated with the consumer. If it is concluded from the evaluation of the contract as a whole that it is a standard contract, the fact that certain elements or an individual provision of a term in this contract have been negotiated does not prevent the application of this article to the remaining part of the contract”.
Article 6 of the Law on Consumer Protection amended by Law No. 4822 regulates the “unfair terms” in contracts. Unfair terms are the contractual conditions that the seller and provider unilaterally put into the contract without negotiating with the consumer, which cause an imbalance in the rights and obligations of the parties arising from the contract to the detriment of the consumer in a manner contrary to the rule of good faith, and unfair terms in all kinds of contracts, one of the parties of which is the consumer, will not be binding for the consumer. If the seller or provider claims that a standard term is discussed individually, it is stated that the burden of proof belongs to him.
Article 7 of the Regulation on Unfair Terms in Consumer Contracts, which was prepared based on the amended Articles 6 and 31 of the Law No. 4077, stipulates that “unfair terms used by the seller, provider or creditor in the contract concluded with the consumer are void”.
The contractual terms regarding the above-mentioned issues in the contract concluded between the bank and the borrower will be null and void and the application of these terms to the borrower will be unlawful. In this case, the borrower will have the right to apply for legal remedies.
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