The battle of forms (contract law) in Turkey

National Law
Turkish law requires that the Ts&Cs must be agreed on by both parties in order for such Ts&Cs be valid and enforceable. However, the legislation does not make any clarification with respect to express or implied approval.

Since there is no precedent addressing this issue; acquiring express approval for the Ts&Cs is strongly advised. Moreover, in the event the Ts&Cs include provisions which are openly against the benefit of the counter party, unless proof can be submitted that the ramifications of such provisions have been explained to the counter party, such provision will be deemed invalid.

Additionally, if the Ts&Cs leads ambiguity or not clearly addressing the parties will, then these Ts&Cs would be interpreted as against the drafting party and in favor of the counter party.

A reference on shipment documents or invoices is not sufficient for a valid inclusion of Ts&Cs.

CISG
From a Turkish law perspective, under the CISG, the situation equals the situation described for national law.

National Law
Under Turkish law, the Knock-Out Rule applies.

CISG
Since the CISG came into force in Turkiye on 1 August 2011, there has been no clear court precedent regarding the implementation of the CISG. Nevertheless, the prevailing doctrine supports that the courts implement the Knock-Out Rule; the contradiction in the Ts&Cs is resolved through the implementation of the good faith principle, and in the light of the benefits to both parties.

CMS Turkiye
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