An Analysis of Insurance Contracts In Terms of Standard Contractual Terms
INTRODUCTION
Insurance is a system that protects individuals, institutions, and society against potential risks. Throughout history, people have sought various methods to safeguard their assets mostly. Insurance activities date back to the Babylonian era when merchants established systems to secure their goods and money. In the West, insurance practices initially developed in the field of maritime trade. The earliest known insurance policy was issued to cover the cargo of a ship named “Santa Clara,” sailing from the Port of Genoa in Italy to Majorca. The first insurance company was also established in Genoa in 1424. The first legal regulation related to insurance was the Barcelona Ordinances. In Turkish states, prior to the Ottoman Empire, the losses of merchants were covered through foundations, guilds, and state support. The Ottoman Empire encountered the concept of insurance in the 18th century, introduced by foreign banks and insurance companies. In the Republican era, insurance was addressed at the 1923 İzmir Economic Congress, leading to the dissolution of the Insurance Syndicate and the establishment of the Insurance Club in 1924. The Club later evolved into the Association of Insurance and Reinsurance Companies of Türkiye in 1960.
Insurance contracts establish a relationship between the insured and the insurer based on risk sharing. Pursuant to Article 1401/0 of the Turkish Commercial Code No. 6102, an insurance contract is an agreement under which the insurer, in exchange for a premium, undertakes to indemnify a loss arising from a danger -referred to as risk- that causes damage to a person’s pecuniary interest, or to pay a sum of money or perform other obligations due to the lifespan of one or more individuals or the occurrence of certain events in their lives.
Standard contract terms are provisions drafted unilaterally by one party during the formation of a contract, intended for use in numerous similar agreements in the future, and presented to the other party. These terms are predominantly utilized in sectors such as banking, insurance, travel, transportation, and labor law. In this article, we will examine the standard contract terms outlined in Article 20 of the Turkish Code of Obligations No. 6098 and their judicial reviews concerning insurance contracts.
INSURANCE CONTRACTS
I. FORMAL REQUIREMENTS OF INSURANCE CONTRACTS
A. Insurance Contract
Insurance is a system that provides protection for individuals, institutions, and society against risks such as accidents, illness, fire, and natural disasters. An insurance contract is a significant legal document that establishes risk-sharing and mutual obligations between the insurer and the insured. For these contracts to be valid and to protect the rights of the parties involved, they must comply with certain formal requirements. In Turkish law, the formal requirements of insurance contracts are grounded in legal frameworks, primarily the Turkish Commercial Code, the Insurance Law, and the Law on Highway Traffic.
B. Formation of the Contract
The formal requirements of an insurance contract are the fundamental rules necessary for the validity of the contract, outlining the aspects that the parties must pay attention to when entering into the agreement.
An insurance contract is not a contract subject to a specific form. However, although the contract is considered to have been formed, the insurer’s liability begins on the date the premium or the first installment is paid. After the insurance contract is concluded, the insurer can only be held responsible for any resulting damage if the first installment of the premium has been paid, even if the insurance policy has not yet been provided.[1]
As regulated in Article 1 of the Turkish Code of Obligations No. 6098, a contract is formed when the parties mutually express their wills in agreement with one another. Insurance contracts, on the other hand, are formed when the insured fulfills their obligation to pay the premium to the insurer, which results in the insurer assuming the responsibility to cover the loss in case the risks specified in the contract materialize. Article 1421, Paragraph 1 of the Turkish Commercial Code (TTK) stipulates: “Unless otherwise agreed, the insurer’s liability begins with the payment of the premium or the first installment; for insurance related to the transport of goods by land or sea, the insurer becomes liable upon the formation of the contract.” This provision regulates when the insurer’s liability commences.
An insurance contract is formed when the offer and acceptance conditions are met. If a person wishing the enter into an insurance contract submits a proposal for the contract, and if the proposal is not rejected within thirty days from the date of the proposal, the insurance contract is deemed to be established (Turkish Commercial Code, Article 1405/1).
II. PROVISIONS APPLICABLE TO THE INSURANCE CONTRACT
The provisions of the Turkish Commercial Code apply to insurance contracts. However, for situations not covered by the provisions of the Turkish Commercial Code regarding insurance contracts, the Turkish of Obligations shall apply.
Articles 1404 and 1408 of the Turkish Commercial Code specify the cases in which an insurance contract is invalid.
Article 1404 of the Turkish Commercial Code: “Insurance cannot be made to cover damage arising from an act of the policyholder or the insured that violates mandatory legal provisions, morals, public order, or personal rights."
Article 1408/1 of the Turkish Commercial Code: “If the insured interest does not exist at the time the insurance contract is concluded, the insurance contract is invalid. If the insured interest, which exists at the time the contract is made, ceases to exist during the term of the contract, the contract becomes invalid at that moment.”
Insurance contracts have unique characteristics distinct from general provisions. The principle of freedom of contract, which is a general principle of contract law, applies as a rule to insurance contracts as well. The parties to the contract are generally free to decide on the content and scope of the contract. However, the legislator, aiming to protect the policyholder, supervises insurance contracts under the protective provisions of the Turkish Commercial Code (TTK), specifically Articles 1452, 1486, and 1520.[2]
III. STANDARD TERMS AND CONDITIONS
General terms and conditions are regulated under Article 20 of the Turkish Code of Obligations. They refer to the contractual provisions that are prepared in advance and unilaterally by one party, with the intention of using them in numerous similar contracts in the future and presented to the other party at the time of contract formation.
The industrial revolution in the second half of the 19th century brought a new dimension to this model of contracting. With the emergence of new production methods and rapid urbanization, the profound changes in the social and economic structures of societies created a need for mass production of goods and services.[3] This need for mass production, in turn, led to contracts being made with a greater number of people. Entrepreneurs has begun to standardize the contract terms they prepare in advance for their goods and services, with the intention of using them in similar future contracts and present them to the other party.[4] Thus, contracts have started to be formed within a certain template. Standard contracts are those in this all or part of the content is composed of standard terms and conditions.[5] These standard terms and conditions help establish consistency in contract formation and save time in the contract preparation process.
While standard terms and conditions offer benefits such as saving time and simplifying procedures -even for parties in a weaker position- there are also drawbacks for the customer. These include the possibility of such provisions being drafted to the detriment of the other party, the contracts often being lengthy and thus difficult to read, and customers choosing not to read them due to time constraints.[6]
“The foundation of the law of obligations is based on the model of individually negotiated contracts. An individual contract refers to agreements where, in the sense of Articles 1 and following of the Code of Obligations, terms such as offer, counteroffer, and acceptance are involved -meaning that each provision of the contract is subject to discussion and negotiation until mutual consent is reached through the alignment of declarations of intent. However, the social and economic developments of our time have created the need for services aimed at the masses and necessitated production for such services. Consequently, alongside the individual contract model, a new contract model has emerged. Banks, insurance companies, travel and transport operators, and entrepreneurs involved in the production and marketing of durable consumer goods prepare abstract and unilateral contract terms—before entering into individual contracts—which are then used to govern a potentially unlimited number of future legal transactions of the same type and form. The term ‘standard terms and conditions’ is used for these pre-drafted typical contract provisions, and such agreements are referred to as ‘standard contracts,’ mass contracts,’ adhesion contracts,’ or ‘form contracts.’ In these contracts aimed at the masses, there is typically no negotiation or discussion of the terms. Often, even the pricing is predetermined by tariffs and excluded from negotiation. When faced with the entrepreneur, the other party to the contract must either accept the terms as imposed or forgo the product or service entirely. In other words, the individual is left with a choice of only “yes” or “no” in response to the contract, without the option to say “yes, but.” Given that opting out of the product or service is often not a realistic option and that there is no opportunity to negotiate, it becomes essential for the individual to be protected by law in the application of such contracts. In the Draft Code, it was deemed necessary to regulate—through mandatory general provisions applicable to all contracts—issues such as the validity rules applicable to standard terms and conditions, the consequences of non-compliance, and the interpretation of these provisions, in order to provide clarity and legal security.” (Justification of Article 20 of the Turkish Code of Obligations)
As can be understood from the justification of Article 20 of the Turkish Code of Obligations, standard terms and conditions are regulated by law and placed under legal protection.
A. ELEMENTS OF STANDARD TERMS AND CONDITIONS
1. MUST BE PREPARED WITH THE INTENTION OF USE IN NUMEROUS SIMILAR CONTRACTS
Article 20 of the Turkish Code of Obligations states that standard terms and conditions are contractual provisions presented to the other party by the drafter with the intention of using them in numerous similar contracts in the future. In other words, for a contractual provision to qualify as a standard term, it must be standardized by the drafter and intended for use not only in a single contract but also in many similar contracts.
It is sufficient for the standard terms and conditions to be intended solely for future use.[7] For this reason, standard terms and conditions contain expressions that are abstract and general, making them applicable to many contracts.[8]
2. MUST BE PREPARED IN ADVANCE
Contracts containing standard terms and conditions are fixed contracts. One party presents a contract that has been prepared in advance to the other party. The parties do not engage in any negotiation regarding these contracts. The party presented with the contract may either accept or reject it.
3. THE DRAFTER MUST PREPARE IT UNILATERALLY
The term "unilateral" in Article 20/1 of the Turkish Code of Obligations indicates that the other party does not participate in the process of preparing the standard terms and conditions. What is meant by presenting these conditions to the other party is not to facilitate their negotiation but rather to act with the intention of having them accepted.[9]
IV. STANDARD TERMS AND CONDITIONS AND JUDICIAL REVIEW IN INSURANCE CONTRACTS
It is not feasible for insurance companies using standard terms and conditions to make individual contracts with each of their millions of customers, nor is it possible to enter into separate contracts with every customer. However, this does not mean that the contracts will not be subject to scrutiny.[10] Insurance companies that prepare insurance contracts are in a stronger position than the policyholders. Therefore, provisions are required to legally protect the weaker policyholders. Since policyholders lack sufficient knowledge in economic, technical, and legal matters, even if they read standard terms and conditions, they cannot understand the provisions and consequences. Ensuring the protection of these individuals is the purpose of judicial review.[11]
A person who wishes to take out insurance does so in order for the insurance company to cover the damage if it occurs. The policyholder wants to secure themselves or their property by paying a premium to the insurance company in case of damage. However, if the insurance companies, using their stronger position, prepare terms in the standard conditions that are unfavorable to the policyholder, thereby preventing the policyholder from accessing this right, the policyholder will be deprived of the insurance compensation.
The judicial review of the standard terms and conditions in insurance contracts is a process that specifically examines unfair terms and the imbalance between the parties. In Türkiye, the terms in insurance contracts are reviewed within the framework of the Consumer Protection Law (TKHK) and the Turkish Commercial Code. The judiciary can assess whether these contracts are fair and may declare unfair terms invalid. The judicial review of the standard terms and conditions in insurance contracts takes place in three main stages. The first stage is the review of whether the standard terms and conditions are included within the scope of the contract, known as the validity review. The second stage is the determination of whether these terms are clear and understandable, referred to as the interpretation review. Finally, the third stage is the content review, which examines whether these provisions, included in the contract, contain terms that are contrary to the rules of good faith and disadvantageous to the other party.[12]
Contracts must primarily not be contrary to Article 27 of the Turkish Code of Obligations, which states: "Contracts that are contrary to the mandatory provisions of the law, morality, public order, or personal rights, or have an impossible subject matter, are null and void." For contracts that do not violate Article 27 of the Turkish Code of Obligations, validity, interpretation, and content reviews can be conducted.
1. VALIDITY REVIEW IN INSURANCE CONTRACTS
The validity review is the protection provided by determining whether the standard terms and conditions are part of the contract content. For the validity review, we can refer to Article 21 of the Turkish Code of Obligations as an example.
Turkish Code of Obligations, Article 21/1: "For standard terms and conditions that are contrary to the interests of the other party to be included in the contract, the drafter must clearly inform the other party of the existence of these terms during the contract formation, provide an opportunity to learn their content, and the other party must accept these terms. Otherwise, the standard terms and conditions are considered as not written.”
Turkish Code of Obligations, Article 21/2: "Standard terms and conditions that are unrelated to the nature of the contract and the specifics of the work are also considered as not written.”
In insurance contracts, the insurer must inform the person wishing to take out insurance about the terms and conditions of the contract, share the contract terms with the policyholder, and the person wishing to take out insurance must accept the terms. Otherwise, the standard terms and conditions in the insurance contract are considered as not written. If the policyholder is a consumer, the unfair terms review specified in Article 5 of the Consumer Protection Law (TKHK) should be conducted.[13]
Also, according to Article 11/1 of the Insurance Law No. 5684: “The main content of insurance contracts is arranged in accordance with general terms approved by the Undersecretariat and will be applied by the insurance companies in the same manner. However, special terms may be established in insurance contracts in accordance with the nature of the work. These matters are clearly specified on the insurance contract and under the heading of special terms, in a way that will not cause any misunderstanding.” As can be understood from this provision, in addition to the contracts regulated in Article 21 of the Turkish Code of Obligations, the insurance contracts are also subject to review to ensure they comply with the general terms approved by the Undersecretariat.
2. INTERPRETATION REVIEW IN INSURANCE CONTRACTS
Interpretation review is conducted after the validity review. If the provisions in the insurance contract have multiple meanings or are unclear and difficult to understand, an interpretation review is required.
Article 23 of the Turkish Obligations Code (TBK) regulates the interpretation review: "If a provision in the standard terms and conditions is unclear, ambiguous, or has multiple meanings, it will be interpreted against the drafter and in favor of the other party." According to this article, if a contract provision is unclear or contradictory, it should be interpreted against the party who drafted the contract. In insurance contracts, through interpretation review, the insurance policyholder, who is in a weaker position, is protected. This way, insurers will avoid including provisions in the contract that the policyholder cannot understand.
The insurer must prepare insurance contracts in a way that the policyholder can understand, without causing any confusion in meaning. Since the general terms of insurance contain contractual features, the contract should be interpreted using contractual interpretation principles accordingly.[14]
Article 11/4 of the Insurance Law No. 5684 states: "Except for the risks included within the scope of the insurance contract, the risks excluded from the scope must be clearly specified. Unspecified risks are considered within the scope of coverage." This provision stipulates that the insurer must explicitly mention the risks that will be excluded from coverage in the insurance contract, in order to avoid disadvantaging the policyholder in the event of damage. The insurer is responsible for the risks that are not specified in the section excluding coverage. In other words, it is not enough for a risk to simply not be considered within the scope of coverage; it must also be clearly specified as an excluded risk.
3. CONTENT REVIEW IN INSURANCE CONTRACTS
Article 25 of the Turkish Code of Obligations No. 6098 regulates content control with the provision: “No provisions may be included in standard contract terms that are contrary to the principle of good faith, to the detriment of the other party or that place them at a disadvantage.” In other words, the fundamental criterion for content control is the principle of good faith.
The principle of good faith is based on Article 2 of the Turkish Civil Code No. 4721. In addition to the Civil Code, the principle of good faith is also incorporated in the Turkish Code of Obligations and the Turkish Commercial Code.
Article 2 of the Turkish Civil Code provides that “Everyone must act in accordance with the principle of good faith when exercising their rights and fulfilling their obligations.” With this provision, the principle of good faith is legally protected.
The wording “contrary to the principle of good faith” in the law has been interpreted differently by legal doctrine and the Court of Cassation. In the doctrine, it has been argued that this wording reflects a deliberate choice.[15] On the other hand, it has also been stated in the doctrine that this criterion should be determined according to the purpose of the contract, and that the most appropriate distribution of rights and obligations arising from the nature of the contract should be accepted as the standard for review.[16] The Court of Cassation, however, states that when determining whether a provision alleged to be a standard contract term is contrary to the principle of good faith, this issue must be discussed and evaluated by the court on a case-by-case basis.[17]
Businesses that include standard contract terms in their agreements are seen to avoid validity and interpretation reviews by drafting their contracts in a clear and understandable manner, thereby preventing such scrutiny. For this reason, content control constitutes the most critical aspect of the review of standard contract terms.[18] Like other methods of review, content control is also a mechanism designed to protect the policyholder, who is in a weaker position compared to the insurance company.
Insurance general conditions, even when not in violation of mandatory provisions, may still lead to outcomes contrary to the principle of good faith by creating a disadvantage for the policyholder. In such cases, the protection offered by mandatory provisions alone will not be sufficient. Through content control, insurance general conditions that do not breach mandatory rules can still be reviewed to ensure a fair balance of interests.[19]
Article 55/1-f of the Turkish Commercial Code (TTK) states: "Using transaction terms that are contrary to the principle of good faith. Specifically, those who use pre-written standard contract terms that:
Deviate significantly from the legal regulation to be applied directly or through interpretation, or
Provide a distribution of rights and obligations that significantly contradicts the nature of the contract, will act contrary to good faith." This provision further clarifies that those who use standard contract terms in their agreements are subject to the principle of good faith.
The insurance general condition states that "in home insurance, if the policyholder does not properly lock or close all doors and windows, even for a short period, they cannot benefit from the insurance coverage has been discussed” ... With such a provision, it is clear that the benefit expected from the insurance contract by the policyholder becomes meaningless.[20] It is contrary to the ordinary course of life for someone not to lock their door or window for a short period of time in their home. The insurer seeks to use this situation in a manner that is contrary to the principle of good faith. As seen in the given example, contract terms that are contrary to the ordinary course of life, place the policyholder under great responsibility, and impose significant obligations on the policyholder are in violation of the principle of good faith.
Article 25 of the Turkish Code of Obligations (TBK) states that standard contract terms of this nature cannot be included in the contract. However, the provision does not explicitly regulate what the consequence would be if such standard contract terms were included in the contract.[21] The justification of Article 25 states that the sanction for violating the principle of good faith is absolute invalidity.
Justification of the Article:
“Article 25 is a new provision titled "V. Content Control," which was not included in the Turkish Code of Obligations No. 818. The same heading is also used in Section 307 of the German Civil Code (BGB).
Article 25 of the draft, consisting of a single paragraph, regulates the content control of standard contract terms.
The article states that no provisions may be included in standard contract terms that are contrary to the principles of good faith, to the detriment of the other party or that place them at a disadvantage. With the regulation in this article, the aim is to prevent behaviors that are considered contrary to good faith in legal doctrine, even if they do not reach the level of being immoral, within the field of standard contract terms.
The sanction for such provisions will be absolute invalidity, as stated in the first sentence of the second paragraph of Article 27 of the draft. In other words, the second sentence of the same paragraph is not applicable here. Therefore, provisions included in the contract, except for those that are prohibited from being part of standard contract terms, will retain their validity. Article 21 of the draft regulates the binding nature of standard contract terms, while this article addresses the content control of these terms.”
As can be understood from the explanations above, the law protects the policyholder against the standard contract terms in the insurance contract provided by the insurer, through the principle of good faith.
CONCLUSION
Insurance is a system that provides protection against risks such as accidents, illness, fire, and natural disasters that individuals, institutions, and society may encounter. An insurance contract is not a contract that is subject to a specific form. However, despite the contract being formed, the insurer’s liability begins when the premium or first installment is paid. The insurance contract has specific characteristics distinct from the general provisions. The general principle of contract law, which is the freedom of contract, also applies to insurance contracts as a rule. The parties to the contract can freely decide on the content and scope of the contract, in principle.
Standard contract terms are regulated in Article 20 of the Turkish Code of Obligations. Standard contract terms are the provisions of a contract that the drafter prepares in advance, independently, with the intention of using them in many similar contracts in the future and presents them to the other party. Banks, insurance companies, travel and transportation businesses, producers and marketers of durable consumer goods, and entrepreneurs prepare abstract and unilateral contract terms before forming an individual contract and use these to regulate an indefinite number of future legal transactions that will be of the same form and type. The term "standard contract terms" is used for pre-prepared typical contract conditions, and such contracts are referred to as "standard contracts," "mass contracts," "adhesion contracts," or "form contracts." In these contracts directed at the masses, there is no negotiation or discussion regarding the formation of the contract.
The judicial review of standard contract terms in insurance agreements is primarily a process that scrutinizes unfair terms and the imbalance between the parties. In Türkiye, the terms within insurance contracts are examined within the framework of the Consumer Protection Law (TKHK) and the Turkish Commercial Code. The judiciary may assess whether such contracts are fair and can declare unfair terms invalid.
The judicial review of standard contract terms in insurance contracts takes place in three basic stages. The first stage is the validity review, which examines whether the standard terms are included in the contract. The second stage is the interpretation review, which determines whether these terms are clear and understandable. Finally, the third stage is the content review, which assesses whether the provisions included in the contract violate the principle of good faith and contain terms that are detrimental to the other party.
The purpose of the judicial review of standard contract terms in the insurance sector is to establish a balance between the policyholder, who is in a weaker position compared to the insurance company, and the insurer.
[1] 11th Civil Chamber of the Court of Cassation. 26.01.1982 Merits Nr.1982/74 Decision Nr. 1982/1125 (www.kazanci.com.tr)
[2] SEVİNÇ KUYUCU, Aslıhan, “Sigorta Genel Şartlarının Hukuki Niteliği ve Uygulanacak Hükümlerin Belirlenmesine İlişkin Esaslar”, Respect Day for Prof. Dr. Rayegan Kender, Symposium on the Regulation, Supervision, and Practical Issues of Insurance General Terms, İstanbul, Filiz Kitabevi, 2020, p.8
[3] HAVUTÇU, Ayşe, “Açık İçerik Denetimi Yoluyla Tüketicinin Genel İşlem Şartlarına Karşı Korunması”, İzmir, Güncel Yayınevi, İzmir 2003, p.2
[4] ATAMER, Yeşim M., “Sözleşme Özgürlüğünün Sınırlandırılması Çerçevesinde Genel İşlem Şartlarının Denetlenmesi”, İstanbul, Beta Yayıncılık, 2001, p.61
[5] HAVUTÇU, p.3
[6] AYDOĞDU, Murat, Türk Borçlar Kanunu’nda Genel İşlem Koşullarının ve Tüketici Hukuku’nda Haksız Şartların Denetimi, Ankara, Seçkin Yayıncılık, 2014, p.27
[7] HAVUTÇU, p.83
[8] HAVUTÇU, p.80
[9] HAVUTÇU, p.87
[10] ÇALIŞKAN, İbrahim, Sigorta Sözleşmelerinin Genel İşlem Koşulları Bakımından İncelenmesi, Master's Thesis of the Private Law Program, Department of Private Law, Institute of Social Sciences, Dokuz Eylül University, İzmir,2024, p.72
[11] GÜNDOĞDU, Vasvi. General Terms of the Insurance Policy (Unpublished Master's Thesis), Institute of Social Sciences, Gazi University, Ankara, 2011, p.6; HAVUTÇU, p.39
[12] GÜNDOĞDU, p.111
[13] ÇALIŞKAN, p.73
[14] BAHTİYAR, Mehmet. Sigorta Poliçesi Genel Şartları ve Tüketicinin Korunması, Aristo Yayınevi, İstanbul, 2020, p.33
[15] ANTALYA, Gökhan, Borçlar Hukuku, Genel Hükümler, Volume I, İstanbul, 2015, p.436
[16] AYDIN, Ramazan, Tüketici Sözleşmelerindeki Haksız Şartlar (TKHK m. 5), Erciyes University Faculty of Law Journal, Year 2016, Volume 11, Issue 1, p.106.
[17] ÜNAL, Akın /KÖROĞLU, Emre, Genel İşlem Şartlarının İçerik Denetiminin Sonuçları, Dergipark Issue 13, June 2019, p.526
[18] AYDOĞDU, Murat/ KAHVECİ, Nalan. Genel işlem Koşulları Şerhi(Türk Borçlar Kanunu Madde 20-25), 2nd Edition, Adalet Yayınevi, Ankara, 2022, p.258
[19] ÇALIŞKAN, p.88
[20] Memiş, Tekin. Sigorta Sözleşmesi Şartlarının Yargısal Denetimi, On İki Levha Yayıncılık, İstanbul, 2016, p.181, dn.320
[21] OĞUZMAN, Kemal/ ÖZ, Turgut, Borçlar Hukuku, Genel Hükümler, Volume 1, Revised 15th Edition of Law No. 6098, İstanbul, 2017, p. 167
BIBLIOGRAPHY
ANTALYA, Gökhan, Borçlar Hukuku, Genel Hükümler, Volume I, İstanbul, 2015
AYDIN, Ramazan, Tüketici Sözleşmelerindeki Haksız Şartlar (TKHK Art. 5), Erciyes University Faculty of Law Journal, Year 2016, Volume 11, Issue 1
AYDOĞDU, Murat, Türk Borçlar Kanunu’nda Genel İşlem Koşullarının ve Tüketici Hukuku’nda Haksız Şartların Denetimi, Ankara, Seçkin Yayıncılık, 2014
AYDOĞDU, Murat/ KAHVECİ, Nalan. Genel işlem Koşulları Şerhi (Türk Borçlar Kanunu Madde 20-25), 2nd Edition, Adalet Yayınevi, Ankara, 2022
ATAMER, Yeşim M., “Sözleşme Özgürlüğünün Sınırlandırılması Çerçevesinde Genel İşlem Şartlarının Denetlenmesi,” İstanbul, Beta Yayıncılık, 2001
BAHTİYAR, Mehmet. Sigorta Poliçesi Genel Şartları ve Tüketicinin Korunması, Aristo Yayınevi, İstanbul, 2020
ÇALIŞKAN, İbrahim, Sigorta Sözleşmelerinin Genel İşlem Koşulları Bakımından İncelenmesi, Master's Thesis of the Private Law Program, Department of Private Law, Institute of Social Sciences, Dokuz Eylül University, İzmir,2024
HAVUTÇU, Ayşe, “Açık İçerik Denetimi Yoluyla Tüketicinin Genel İşlem Şartlarına Karşı Korunması,” İzmir, Güncel Yayınevi, İzmir 2003
GÜNDOĞDU, Vasvi. Sigorta Poliçesi Genel Şartları (Unpublished Master's Thesis), Institute of Social Sciences, Gazi University, Ankara, 2011
Memiş, Tekin. Sigorta Sözleşmesi Şartlarının Yargısal Denetimi, On İki Levha Yayıncılık, İstanbul, 2016, p.181, dn.320
OĞUZMAN, Kemal/ ÖZ, Turgut, Borçlar Hukuku, Genel Hükümler, Volume 1, Revised 15th Edition of Law No. 6098, İstanbul, 2017
SEVİNÇ KUYUCU, Aslıhan, “Sigorta Genel Şartlarının Hukuki Niteliği ve Uygulanacak Hükümlerin Belirlenmesine İlişkin Esaslar,” Respect Day for Prof. Dr. Rayegan Kender, Symposium on the Regulation, Supervision, and Practical Issues of Insurance General Terms, İstanbul, Filiz Kitabevi, 2020
ÜNAL, Akın /KÖROĞLU, Emre, Genel İşlem Şartlarının İçerik Denetiminin Sonuçları, Dergipark Issue 13, June 2019
INTRODUCTION
Insurance is a system that protects individuals, institutions, and society against potential risks. Throughout history, people have sought various methods to safeguard their assets mostly. Insurance activities date back to the Babylonian era when merchants established systems to secure their goods and money. In the West, insurance practices initially developed in the field of maritime trade. The earliest known insurance policy was issued to cover the cargo of a ship named “Santa Clara,” sailing from the Port of Genoa in Italy to Majorca. The first insurance company was also established in Genoa in 1424. The first legal regulation related to insurance was the Barcelona Ordinances. In Turkish states, prior to the Ottoman Empire, the losses of merchants were covered through foundations, guilds, and state support. The Ottoman Empire encountered the concept of insurance in the 18th century, introduced by foreign banks and insurance companies. In the Republican era, insurance was addressed at the 1923 İzmir Economic Congress, leading to the dissolution of the Insurance Syndicate and the establishment of the Insurance Club in 1924. The Club later evolved into the Association of Insurance and Reinsurance Companies of Türkiye in 1960.
Insurance contracts establish a relationship between the insured and the insurer based on risk sharing. Pursuant to Article 1401/0 of the Turkish Commercial Code No. 6102, an insurance contract is an agreement under which the insurer, in exchange for a premium, undertakes to indemnify a loss arising from a danger -referred to as risk- that causes damage to a person’s pecuniary interest, or to pay a sum of money or perform other obligations due to the lifespan of one or more individuals or the occurrence of certain events in their lives.
Standard contract terms are provisions drafted unilaterally by one party during the formation of a contract, intended for use in numerous similar agreements in the future, and presented to the other party. These terms are predominantly utilized in sectors such as banking, insurance, travel, transportation, and labor law. In this article, we will examine the standard contract terms outlined in Article 20 of the Turkish Code of Obligations No. 6098 and their judicial reviews concerning insurance contracts.
INSURANCE CONTRACTS
I. FORMAL REQUIREMENTS OF INSURANCE CONTRACTS
A. Insurance Contract
Insurance is a system that provides protection for individuals, institutions, and society against risks such as accidents, illness, fire, and natural disasters. An insurance contract is a significant legal document that establishes risk-sharing and mutual obligations between the insurer and the insured. For these contracts to be valid and to protect the rights of the parties involved, they must comply with certain formal requirements. In Turkish law, the formal requirements of insurance contracts are grounded in legal frameworks, primarily the Turkish Commercial Code, the Insurance Law, and the Law on Highway Traffic.
B. Formation of the Contract
The formal requirements of an insurance contract are the fundamental rules necessary for the validity of the contract, outlining the aspects that the parties must pay attention to when entering into the agreement.
An insurance contract is not a contract subject to a specific form. However, although the contract is considered to have been formed, the insurer’s liability begins on the date the premium or the first installment is paid. After the insurance contract is concluded, the insurer can only be held responsible for any resulting damage if the first installment of the premium has been paid, even if the insurance policy has not yet been provided.[1]
As regulated in Article 1 of the Turkish Code of Obligations No. 6098, a contract is formed when the parties mutually express their wills in agreement with one another. Insurance contracts, on the other hand, are formed when the insured fulfills their obligation to pay the premium to the insurer, which results in the insurer assuming the responsibility to cover the loss in case the risks specified in the contract materialize. Article 1421, Paragraph 1 of the Turkish Commercial Code (TTK) stipulates: “Unless otherwise agreed, the insurer’s liability begins with the payment of the premium or the first installment; for insurance related to the transport of goods by land or sea, the insurer becomes liable upon the formation of the contract.” This provision regulates when the insurer’s liability commences.
An insurance contract is formed when the offer and acceptance conditions are met. If a person wishing the enter into an insurance contract submits a proposal for the contract, and if the proposal is not rejected within thirty days from the date of the proposal, the insurance contract is deemed to be established (Turkish Commercial Code, Article 1405/1).
II. PROVISIONS APPLICABLE TO THE INSURANCE CONTRACT
The provisions of the Turkish Commercial Code apply to insurance contracts. However, for situations not covered by the provisions of the Turkish Commercial Code regarding insurance contracts, the Turkish of Obligations shall apply.
Articles 1404 and 1408 of the Turkish Commercial Code specify the cases in which an insurance contract is invalid.
Article 1404 of the Turkish Commercial Code: “Insurance cannot be made to cover damage arising from an act of the policyholder or the insured that violates mandatory legal provisions, morals, public order, or personal rights."
Article 1408/1 of the Turkish Commercial Code: “If the insured interest does not exist at the time the insurance contract is concluded, the insurance contract is invalid. If the insured interest, which exists at the time the contract is made, ceases to exist during the term of the contract, the contract becomes invalid at that moment.”
Insurance contracts have unique characteristics distinct from general provisions. The principle of freedom of contract, which is a general principle of contract law, applies as a rule to insurance contracts as well. The parties to the contract are generally free to decide on the content and scope of the contract. However, the legislator, aiming to protect the policyholder, supervises insurance contracts under the protective provisions of the Turkish Commercial Code (TTK), specifically Articles 1452, 1486, and 1520.[2]
III. STANDARD TERMS AND CONDITIONS
General terms and conditions are regulated under Article 20 of the Turkish Code of Obligations. They refer to the contractual provisions that are prepared in advance and unilaterally by one party, with the intention of using them in numerous similar contracts in the future and presented to the other party at the time of contract formation.
The industrial revolution in the second half of the 19th century brought a new dimension to this model of contracting. With the emergence of new production methods and rapid urbanization, the profound changes in the social and economic structures of societies created a need for mass production of goods and services.[3] This need for mass production, in turn, led to contracts being made with a greater number of people. Entrepreneurs has begun to standardize the contract terms they prepare in advance for their goods and services, with the intention of using them in similar future contracts and present them to the other party.[4] Thus, contracts have started to be formed within a certain template. Standard contracts are those in this all or part of the content is composed of standard terms and conditions.[5] These standard terms and conditions help establish consistency in contract formation and save time in the contract preparation process.
While standard terms and conditions offer benefits such as saving time and simplifying procedures -even for parties in a weaker position- there are also drawbacks for the customer. These include the possibility of such provisions being drafted to the detriment of the other party, the contracts often being lengthy and thus difficult to read, and customers choosing not to read them due to time constraints.[6]
“The foundation of the law of obligations is based on the model of individually negotiated contracts. An individual contract refers to agreements where, in the sense of Articles 1 and following of the Code of Obligations, terms such as offer, counteroffer, and acceptance are involved -meaning that each provision of the contract is subject to discussion and negotiation until mutual consent is reached through the alignment of declarations of intent. However, the social and economic developments of our time have created the need for services aimed at the masses and necessitated production for such services. Consequently, alongside the individual contract model, a new contract model has emerged. Banks, insurance companies, travel and transport operators, and entrepreneurs involved in the production and marketing of durable consumer goods prepare abstract and unilateral contract terms—before entering into individual contracts—which are then used to govern a potentially unlimited number of future legal transactions of the same type and form. The term ‘standard terms and conditions’ is used for these pre-drafted typical contract provisions, and such agreements are referred to as ‘standard contracts,’ mass contracts,’ adhesion contracts,’ or ‘form contracts.’ In these contracts aimed at the masses, there is typically no negotiation or discussion of the terms. Often, even the pricing is predetermined by tariffs and excluded from negotiation. When faced with the entrepreneur, the other party to the contract must either accept the terms as imposed or forgo the product or service entirely. In other words, the individual is left with a choice of only “yes” or “no” in response to the contract, without the option to say “yes, but.” Given that opting out of the product or service is often not a realistic option and that there is no opportunity to negotiate, it becomes essential for the individual to be protected by law in the application of such contracts. In the Draft Code, it was deemed necessary to regulate—through mandatory general provisions applicable to all contracts—issues such as the validity rules applicable to standard terms and conditions, the consequences of non-compliance, and the interpretation of these provisions, in order to provide clarity and legal security.” (Justification of Article 20 of the Turkish Code of Obligations)
As can be understood from the justification of Article 20 of the Turkish Code of Obligations, standard terms and conditions are regulated by law and placed under legal protection.
A. ELEMENTS OF STANDARD TERMS AND CONDITIONS
1. MUST BE PREPARED WITH THE INTENTION OF USE IN NUMEROUS SIMILAR CONTRACTS
Article 20 of the Turkish Code of Obligations states that standard terms and conditions are contractual provisions presented to the other party by the drafter with the intention of using them in numerous similar contracts in the future. In other words, for a contractual provision to qualify as a standard term, it must be standardized by the drafter and intended for use not only in a single contract but also in many similar contracts.
It is sufficient for the standard terms and conditions to be intended solely for future use.[7] For this reason, standard terms and conditions contain expressions that are abstract and general, making them applicable to many contracts.[8]
2. MUST BE PREPARED IN ADVANCE
Contracts containing standard terms and conditions are fixed contracts. One party presents a contract that has been prepared in advance to the other party. The parties do not engage in any negotiation regarding these contracts. The party presented with the contract may either accept or reject it.
3. THE DRAFTER MUST PREPARE IT UNILATERALLY
The term "unilateral" in Article 20/1 of the Turkish Code of Obligations indicates that the other party does not participate in the process of preparing the standard terms and conditions. What is meant by presenting these conditions to the other party is not to facilitate their negotiation but rather to act with the intention of having them accepted.[9]
IV. STANDARD TERMS AND CONDITIONS AND JUDICIAL REVIEW IN INSURANCE CONTRACTS
It is not feasible for insurance companies using standard terms and conditions to make individual contracts with each of their millions of customers, nor is it possible to enter into separate contracts with every customer. However, this does not mean that the contracts will not be subject to scrutiny.[10] Insurance companies that prepare insurance contracts are in a stronger position than the policyholders. Therefore, provisions are required to legally protect the weaker policyholders. Since policyholders lack sufficient knowledge in economic, technical, and legal matters, even if they read standard terms and conditions, they cannot understand the provisions and consequences. Ensuring the protection of these individuals is the purpose of judicial review.[11]
A person who wishes to take out insurance does so in order for the insurance company to cover the damage if it occurs. The policyholder wants to secure themselves or their property by paying a premium to the insurance company in case of damage. However, if the insurance companies, using their stronger position, prepare terms in the standard conditions that are unfavorable to the policyholder, thereby preventing the policyholder from accessing this right, the policyholder will be deprived of the insurance compensation.
The judicial review of the standard terms and conditions in insurance contracts is a process that specifically examines unfair terms and the imbalance between the parties. In Türkiye, the terms in insurance contracts are reviewed within the framework of the Consumer Protection Law (TKHK) and the Turkish Commercial Code. The judiciary can assess whether these contracts are fair and may declare unfair terms invalid. The judicial review of the standard terms and conditions in insurance contracts takes place in three main stages. The first stage is the review of whether the standard terms and conditions are included within the scope of the contract, known as the validity review. The second stage is the determination of whether these terms are clear and understandable, referred to as the interpretation review. Finally, the third stage is the content review, which examines whether these provisions, included in the contract, contain terms that are contrary to the rules of good faith and disadvantageous to the other party.[12]
Contracts must primarily not be contrary to Article 27 of the Turkish Code of Obligations, which states: "Contracts that are contrary to the mandatory provisions of the law, morality, public order, or personal rights, or have an impossible subject matter, are null and void." For contracts that do not violate Article 27 of the Turkish Code of Obligations, validity, interpretation, and content reviews can be conducted.
1. VALIDITY REVIEW IN INSURANCE CONTRACTS
The validity review is the protection provided by determining whether the standard terms and conditions are part of the contract content. For the validity review, we can refer to Article 21 of the Turkish Code of Obligations as an example.
Turkish Code of Obligations, Article 21/1: "For standard terms and conditions that are contrary to the interests of the other party to be included in the contract, the drafter must clearly inform the other party of the existence of these terms during the contract formation, provide an opportunity to learn their content, and the other party must accept these terms. Otherwise, the standard terms and conditions are considered as not written.”
Turkish Code of Obligations, Article 21/2: "Standard terms and conditions that are unrelated to the nature of the contract and the specifics of the work are also considered as not written.”
In insurance contracts, the insurer must inform the person wishing to take out insurance about the terms and conditions of the contract, share the contract terms with the policyholder, and the person wishing to take out insurance must accept the terms. Otherwise, the standard terms and conditions in the insurance contract are considered as not written. If the policyholder is a consumer, the unfair terms review specified in Article 5 of the Consumer Protection Law (TKHK) should be conducted.[13]
Also, according to Article 11/1 of the Insurance Law No. 5684: “The main content of insurance contracts is arranged in accordance with general terms approved by the Undersecretariat and will be applied by the insurance companies in the same manner. However, special terms may be established in insurance contracts in accordance with the nature of the work. These matters are clearly specified on the insurance contract and under the heading of special terms, in a way that will not cause any misunderstanding.” As can be understood from this provision, in addition to the contracts regulated in Article 21 of the Turkish Code of Obligations, the insurance contracts are also subject to review to ensure they comply with the general terms approved by the Undersecretariat.
2. INTERPRETATION REVIEW IN INSURANCE CONTRACTS
Interpretation review is conducted after the validity review. If the provisions in the insurance contract have multiple meanings or are unclear and difficult to understand, an interpretation review is required.
Article 23 of the Turkish Obligations Code (TBK) regulates the interpretation review: "If a provision in the standard terms and conditions is unclear, ambiguous, or has multiple meanings, it will be interpreted against the drafter and in favor of the other party." According to this article, if a contract provision is unclear or contradictory, it should be interpreted against the party who drafted the contract. In insurance contracts, through interpretation review, the insurance policyholder, who is in a weaker position, is protected. This way, insurers will avoid including provisions in the contract that the policyholder cannot understand.
The insurer must prepare insurance contracts in a way that the policyholder can understand, without causing any confusion in meaning. Since the general terms of insurance contain contractual features, the contract should be interpreted using contractual interpretation principles accordingly.[14]
Article 11/4 of the Insurance Law No. 5684 states: "Except for the risks included within the scope of the insurance contract, the risks excluded from the scope must be clearly specified. Unspecified risks are considered within the scope of coverage." This provision stipulates that the insurer must explicitly mention the risks that will be excluded from coverage in the insurance contract, in order to avoid disadvantaging the policyholder in the event of damage. The insurer is responsible for the risks that are not specified in the section excluding coverage. In other words, it is not enough for a risk to simply not be considered within the scope of coverage; it must also be clearly specified as an excluded risk.
3. CONTENT REVIEW IN INSURANCE CONTRACTS
Article 25 of the Turkish Code of Obligations No. 6098 regulates content control with the provision: “No provisions may be included in standard contract terms that are contrary to the principle of good faith, to the detriment of the other party or that place them at a disadvantage.” In other words, the fundamental criterion for content control is the principle of good faith.
The principle of good faith is based on Article 2 of the Turkish Civil Code No. 4721. In addition to the Civil Code, the principle of good faith is also incorporated in the Turkish Code of Obligations and the Turkish Commercial Code.
Article 2 of the Turkish Civil Code provides that “Everyone must act in accordance with the principle of good faith when exercising their rights and fulfilling their obligations.” With this provision, the principle of good faith is legally protected.
The wording “contrary to the principle of good faith” in the law has been interpreted differently by legal doctrine and the Court of Cassation. In the doctrine, it has been argued that this wording reflects a deliberate choice.[15] On the other hand, it has also been stated in the doctrine that this criterion should be determined according to the purpose of the contract, and that the most appropriate distribution of rights and obligations arising from the nature of the contract should be accepted as the standard for review.[16] The Court of Cassation, however, states that when determining whether a provision alleged to be a standard contract term is contrary to the principle of good faith, this issue must be discussed and evaluated by the court on a case-by-case basis.[17]
Businesses that include standard contract terms in their agreements are seen to avoid validity and interpretation reviews by drafting their contracts in a clear and understandable manner, thereby preventing such scrutiny. For this reason, content control constitutes the most critical aspect of the review of standard contract terms.[18] Like other methods of review, content control is also a mechanism designed to protect the policyholder, who is in a weaker position compared to the insurance company.
Insurance general conditions, even when not in violation of mandatory provisions, may still lead to outcomes contrary to the principle of good faith by creating a disadvantage for the policyholder. In such cases, the protection offered by mandatory provisions alone will not be sufficient. Through content control, insurance general conditions that do not breach mandatory rules can still be reviewed to ensure a fair balance of interests.[19]
Article 55/1-f of the Turkish Commercial Code (TTK) states: "Using transaction terms that are contrary to the principle of good faith. Specifically, those who use pre-written standard contract terms that:
Deviate significantly from the legal regulation to be applied directly or through interpretation, or
Provide a distribution of rights and obligations that significantly contradicts the nature of the contract, will act contrary to good faith." This provision further clarifies that those who use standard contract terms in their agreements are subject to the principle of good faith.
The insurance general condition states that "in home insurance, if the policyholder does not properly lock or close all doors and windows, even for a short period, they cannot benefit from the insurance coverage has been discussed” ... With such a provision, it is clear that the benefit expected from the insurance contract by the policyholder becomes meaningless.[20] It is contrary to the ordinary course of life for someone not to lock their door or window for a short period of time in their home. The insurer seeks to use this situation in a manner that is contrary to the principle of good faith. As seen in the given example, contract terms that are contrary to the ordinary course of life, place the policyholder under great responsibility, and impose significant obligations on the policyholder are in violation of the principle of good faith.
Article 25 of the Turkish Code of Obligations (TBK) states that standard contract terms of this nature cannot be included in the contract. However, the provision does not explicitly regulate what the consequence would be if such standard contract terms were included in the contract.[21] The justification of Article 25 states that the sanction for violating the principle of good faith is absolute invalidity.
Justification of the Article:
“Article 25 is a new provision titled "V. Content Control," which was not included in the Turkish Code of Obligations No. 818. The same heading is also used in Section 307 of the German Civil Code (BGB).
Article 25 of the draft, consisting of a single paragraph, regulates the content control of standard contract terms.
The article states that no provisions may be included in standard contract terms that are contrary to the principles of good faith, to the detriment of the other party or that place them at a disadvantage. With the regulation in this article, the aim is to prevent behaviors that are considered contrary to good faith in legal doctrine, even if they do not reach the level of being immoral, within the field of standard contract terms.
The sanction for such provisions will be absolute invalidity, as stated in the first sentence of the second paragraph of Article 27 of the draft. In other words, the second sentence of the same paragraph is not applicable here. Therefore, provisions included in the contract, except for those that are prohibited from being part of standard contract terms, will retain their validity. Article 21 of the draft regulates the binding nature of standard contract terms, while this article addresses the content control of these terms.”
As can be understood from the explanations above, the law protects the policyholder against the standard contract terms in the insurance contract provided by the insurer, through the principle of good faith.
CONCLUSION
Insurance is a system that provides protection against risks such as accidents, illness, fire, and natural disasters that individuals, institutions, and society may encounter. An insurance contract is not a contract that is subject to a specific form. However, despite the contract being formed, the insurer’s liability begins when the premium or first installment is paid. The insurance contract has specific characteristics distinct from the general provisions. The general principle of contract law, which is the freedom of contract, also applies to insurance contracts as a rule. The parties to the contract can freely decide on the content and scope of the contract, in principle.
Standard contract terms are regulated in Article 20 of the Turkish Code of Obligations. Standard contract terms are the provisions of a contract that the drafter prepares in advance, independently, with the intention of using them in many similar contracts in the future and presents them to the other party. Banks, insurance companies, travel and transportation businesses, producers and marketers of durable consumer goods, and entrepreneurs prepare abstract and unilateral contract terms before forming an individual contract and use these to regulate an indefinite number of future legal transactions that will be of the same form and type. The term "standard contract terms" is used for pre-prepared typical contract conditions, and such contracts are referred to as "standard contracts," "mass contracts," "adhesion contracts," or "form contracts." In these contracts directed at the masses, there is no negotiation or discussion regarding the formation of the contract.
The judicial review of standard contract terms in insurance agreements is primarily a process that scrutinizes unfair terms and the imbalance between the parties. In Türkiye, the terms within insurance contracts are examined within the framework of the Consumer Protection Law (TKHK) and the Turkish Commercial Code. The judiciary may assess whether such contracts are fair and can declare unfair terms invalid.
The judicial review of standard contract terms in insurance contracts takes place in three basic stages. The first stage is the validity review, which examines whether the standard terms are included in the contract. The second stage is the interpretation review, which determines whether these terms are clear and understandable. Finally, the third stage is the content review, which assesses whether the provisions included in the contract violate the principle of good faith and contain terms that are detrimental to the other party.
The purpose of the judicial review of standard contract terms in the insurance sector is to establish a balance between the policyholder, who is in a weaker position compared to the insurance company, and the insurer.
[1] 11th Civil Chamber of the Court of Cassation. 26.01.1982 Merits Nr.1982/74 Decision Nr. 1982/1125 (www.kazanci.com.tr)
[2] SEVİNÇ KUYUCU, Aslıhan, “Sigorta Genel Şartlarının Hukuki Niteliği ve Uygulanacak Hükümlerin Belirlenmesine İlişkin Esaslar”, Respect Day for Prof. Dr. Rayegan Kender, Symposium on the Regulation, Supervision, and Practical Issues of Insurance General Terms, İstanbul, Filiz Kitabevi, 2020, p.8
[3] HAVUTÇU, Ayşe, “Açık İçerik Denetimi Yoluyla Tüketicinin Genel İşlem Şartlarına Karşı Korunması”, İzmir, Güncel Yayınevi, İzmir 2003, p.2
[4] ATAMER, Yeşim M., “Sözleşme Özgürlüğünün Sınırlandırılması Çerçevesinde Genel İşlem Şartlarının Denetlenmesi”, İstanbul, Beta Yayıncılık, 2001, p.61
[5] HAVUTÇU, p.3
[6] AYDOĞDU, Murat, Türk Borçlar Kanunu’nda Genel İşlem Koşullarının ve Tüketici Hukuku’nda Haksız Şartların Denetimi, Ankara, Seçkin Yayıncılık, 2014, p.27
[7] HAVUTÇU, p.83
[8] HAVUTÇU, p.80
[9] HAVUTÇU, p.87
[10] ÇALIŞKAN, İbrahim, Sigorta Sözleşmelerinin Genel İşlem Koşulları Bakımından İncelenmesi, Master's Thesis of the Private Law Program, Department of Private Law, Institute of Social Sciences, Dokuz Eylül University, İzmir,2024, p.72
[11] GÜNDOĞDU, Vasvi. General Terms of the Insurance Policy (Unpublished Master's Thesis), Institute of Social Sciences, Gazi University, Ankara, 2011, p.6; HAVUTÇU, p.39
[12] GÜNDOĞDU, p.111
[13] ÇALIŞKAN, p.73
[14] BAHTİYAR, Mehmet. Sigorta Poliçesi Genel Şartları ve Tüketicinin Korunması, Aristo Yayınevi, İstanbul, 2020, p.33
[15] ANTALYA, Gökhan, Borçlar Hukuku, Genel Hükümler, Volume I, İstanbul, 2015, p.436
[16] AYDIN, Ramazan, Tüketici Sözleşmelerindeki Haksız Şartlar (TKHK m. 5), Erciyes University Faculty of Law Journal, Year 2016, Volume 11, Issue 1, p.106.
[17] ÜNAL, Akın /KÖROĞLU, Emre, Genel İşlem Şartlarının İçerik Denetiminin Sonuçları, Dergipark Issue 13, June 2019, p.526
[18] AYDOĞDU, Murat/ KAHVECİ, Nalan. Genel işlem Koşulları Şerhi(Türk Borçlar Kanunu Madde 20-25), 2nd Edition, Adalet Yayınevi, Ankara, 2022, p.258
[19] ÇALIŞKAN, p.88
[20] Memiş, Tekin. Sigorta Sözleşmesi Şartlarının Yargısal Denetimi, On İki Levha Yayıncılık, İstanbul, 2016, p.181, dn.320
[21] OĞUZMAN, Kemal/ ÖZ, Turgut, Borçlar Hukuku, Genel Hükümler, Volume 1, Revised 15th Edition of Law No. 6098, İstanbul, 2017, p. 167
BIBLIOGRAPHY
ANTALYA, Gökhan, Borçlar Hukuku, Genel Hükümler, Volume I, İstanbul, 2015
AYDIN, Ramazan, Tüketici Sözleşmelerindeki Haksız Şartlar (TKHK Art. 5), Erciyes University Faculty of Law Journal, Year 2016, Volume 11, Issue 1
AYDOĞDU, Murat, Türk Borçlar Kanunu’nda Genel İşlem Koşullarının ve Tüketici Hukuku’nda Haksız Şartların Denetimi, Ankara, Seçkin Yayıncılık, 2014
AYDOĞDU, Murat/ KAHVECİ, Nalan. Genel işlem Koşulları Şerhi (Türk Borçlar Kanunu Madde 20-25), 2nd Edition, Adalet Yayınevi, Ankara, 2022
ATAMER, Yeşim M., “Sözleşme Özgürlüğünün Sınırlandırılması Çerçevesinde Genel İşlem Şartlarının Denetlenmesi,” İstanbul, Beta Yayıncılık, 2001
BAHTİYAR, Mehmet. Sigorta Poliçesi Genel Şartları ve Tüketicinin Korunması, Aristo Yayınevi, İstanbul, 2020
ÇALIŞKAN, İbrahim, Sigorta Sözleşmelerinin Genel İşlem Koşulları Bakımından İncelenmesi, Master's Thesis of the Private Law Program, Department of Private Law, Institute of Social Sciences, Dokuz Eylül University, İzmir,2024
HAVUTÇU, Ayşe, “Açık İçerik Denetimi Yoluyla Tüketicinin Genel İşlem Şartlarına Karşı Korunması,” İzmir, Güncel Yayınevi, İzmir 2003
GÜNDOĞDU, Vasvi. Sigorta Poliçesi Genel Şartları (Unpublished Master's Thesis), Institute of Social Sciences, Gazi University, Ankara, 2011
Memiş, Tekin. Sigorta Sözleşmesi Şartlarının Yargısal Denetimi, On İki Levha Yayıncılık, İstanbul, 2016, p.181, dn.320
OĞUZMAN, Kemal/ ÖZ, Turgut, Borçlar Hukuku, Genel Hükümler, Volume 1, Revised 15th Edition of Law No. 6098, İstanbul, 2017
SEVİNÇ KUYUCU, Aslıhan, “Sigorta Genel Şartlarının Hukuki Niteliği ve Uygulanacak Hükümlerin Belirlenmesine İlişkin Esaslar,” Respect Day for Prof. Dr. Rayegan Kender, Symposium on the Regulation, Supervision, and Practical Issues of Insurance General Terms, İstanbul, Filiz Kitabevi, 2020
ÜNAL, Akın /KÖROĞLU, Emre, Genel İşlem Şartlarının İçerik Denetiminin Sonuçları, Dergipark Issue 13, June 2019
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