reason, for the conditions incorporated in the bill of lading, the examination
of generalized transaction terms pursuant to TCO Art.20 is improper with the
Negotiable Instruments Law.
4.2 The Infeasibility of Examination of Generalized
Transaction Terms in Contracts Between Merchants
In doctrine relating to the Law of Obligations, there is dictum that with regard
to the standard-type agreements concluded between merchants and in commercial
relations, the examination of generalized transaction terms should not be
conducted.
15 This is because such an examination constitutes intervention of free
market conditions and poses the effect of deteriorating the market balance.
4.3 Freedom of Contract and the Principle
of Diligent Businessman in Commercial Law
In accordance with the principle of “freedom of contract”, ascendant in private law,
everyone has the right to make a contract with anyone, in any condition, content and
any form he wants. According to Art. 18/2 of TCC, a merchant, in commercial
affairs and transactions and in all commercial activities, committed by him, shall act
as a diligent businessman.
The term “diligent businessman” determines the scope of application of the
freedom of contract principle in Commercial Law. A merchant, who is aware of
the conditions of the contract that he draws up and of the rights and obligations it
raises, is diligent. The reflection of this term in maritime law, especially regarding
contracts of affreightment, is as follows: The merchant party to the contract of
affreightment, being aware of who, how and under which circumstances the burden
will be carried and examining the conditions of the contract of affreightment before
the contract is drawn up, is a diligent merchant. The consignee will examine the
content of the bill of lading, in this context, all that is written on both the front and
reverse sides of the bill, and if conditions are appropriate, he will submit the bill of
lading to the carrier or the agency by endorsing it.
In this way, the weaker party is protected against the more powerful party under
the generalized transaction terms examination held under Article 20 of the TCO.
This approach is adopted especially in areas such as business, banking or consumer
law under which there exists power inequalities between the parties. As to commercial relationships between merchants, the adoption of such an approach is ill suited
15 Antalya, Borçlar Hukuku Genel Hükümler, 2012, p. 294.
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
11
of generalized transaction terms pursuant to TCO Art.20 is improper with the
Negotiable Instruments Law.
4.2 The Infeasibility of Examination of Generalized
Transaction Terms in Contracts Between Merchants
In doctrine relating to the Law of Obligations, there is dictum that with regard
to the standard-type agreements concluded between merchants and in commercial
relations, the examination of generalized transaction terms should not be
conducted.
15 This is because such an examination constitutes intervention of free
market conditions and poses the effect of deteriorating the market balance.
4.3 Freedom of Contract and the Principle
of Diligent Businessman in Commercial Law
In accordance with the principle of “freedom of contract”, ascendant in private law,
everyone has the right to make a contract with anyone, in any condition, content and
any form he wants. According to Art. 18/2 of TCC, a merchant, in commercial
affairs and transactions and in all commercial activities, committed by him, shall act
as a diligent businessman.
The term “diligent businessman” determines the scope of application of the
freedom of contract principle in Commercial Law. A merchant, who is aware of
the conditions of the contract that he draws up and of the rights and obligations it
raises, is diligent. The reflection of this term in maritime law, especially regarding
contracts of affreightment, is as follows: The merchant party to the contract of
affreightment, being aware of who, how and under which circumstances the burden
will be carried and examining the conditions of the contract of affreightment before
the contract is drawn up, is a diligent merchant. The consignee will examine the
content of the bill of lading, in this context, all that is written on both the front and
reverse sides of the bill, and if conditions are appropriate, he will submit the bill of
lading to the carrier or the agency by endorsing it.
In this way, the weaker party is protected against the more powerful party under
the generalized transaction terms examination held under Article 20 of the TCO.
This approach is adopted especially in areas such as business, banking or consumer
law under which there exists power inequalities between the parties. As to commercial relationships between merchants, the adoption of such an approach is ill suited
15 Antalya, Borçlar Hukuku Genel Hükümler, 2012, p. 294.
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
11