because of the principle of the diligent merchant; and this is valid a fortiori for
merchants who intend to have their goods carried by sea.
The bill of lading is an instrument concerning commercial business involving
carriage of goods by sea. It cannot be contemplated that a merchant holding a bill of
lading, who engages in international business, does not act as a diligent merchant
and is not aware of the clauses in a bill of lading setting out his obligations in the
charterparty to which it refers.
4.4 Article 55/1 of TCC and the Issue of Constituting Unfair
Competition
Under the Turkish Commercial Code, there is provision for examination of generalized transaction terms pertaining to commercial relationships between merchants.
According to Article 55/1 of TCC, those who use the pre-written generalized
transaction terms in a misleading way against the other party, those who directly
or through interpretation deviating from the applicable legal regulation or using
terms provided for the distribution of rights and debts that significantly violate the
nature of the contract, are deemed to act against good faith.
The use of generalized transaction terms in a manner that is against good faith
constitutes unfair competition. The sanction for unfair competition is compensation
and criminal conviction. Since the TCC passed into law after the TCO, it is “new
law”. According to general principles, where a “new” and “special” law contradicts
with an “old” and “general” law, the provisions of the new and special law are
deemed to repeal the corresponding provisions of the old and general law.
16 This is
consistent with the legal maxim lex specialis derogate legi generali.
As seen from the foregoing discussion, the TCC provides for special effect and
consequence for the examination of generalized transaction terms. It is obvious that
the aim of the legislation is to separate out through examination of the generalized
terms in commercial transactions between merchants, the general provisions of
TCO. This is subject to Article 55/1 of TCC and the application of the relevant
sanctions in case of a finding of unfair competition instead of the imposition of an
unwritten sanction. In this regard, rather than the general provisions of TCO, Article
55/1 of TCC should be applied to commercial contracts and transactions such as
contracts of affreightment and bills of lading. Besides, in the TCC there are compulsory provisions with regard to maritime law and these provisions constitute a kind
of generalized transaction terms examination. This issue is examined in detail below.
16 Baştuğ, Hukukun Temel İlke ve Kavramları, 1975, p. 85.
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merchants who intend to have their goods carried by sea.
The bill of lading is an instrument concerning commercial business involving
carriage of goods by sea. It cannot be contemplated that a merchant holding a bill of
lading, who engages in international business, does not act as a diligent merchant
and is not aware of the clauses in a bill of lading setting out his obligations in the
charterparty to which it refers.
4.4 Article 55/1 of TCC and the Issue of Constituting Unfair
Competition
Under the Turkish Commercial Code, there is provision for examination of generalized transaction terms pertaining to commercial relationships between merchants.
According to Article 55/1 of TCC, those who use the pre-written generalized
transaction terms in a misleading way against the other party, those who directly
or through interpretation deviating from the applicable legal regulation or using
terms provided for the distribution of rights and debts that significantly violate the
nature of the contract, are deemed to act against good faith.
The use of generalized transaction terms in a manner that is against good faith
constitutes unfair competition. The sanction for unfair competition is compensation
and criminal conviction. Since the TCC passed into law after the TCO, it is “new
law”. According to general principles, where a “new” and “special” law contradicts
with an “old” and “general” law, the provisions of the new and special law are
deemed to repeal the corresponding provisions of the old and general law.
16 This is
consistent with the legal maxim lex specialis derogate legi generali.
As seen from the foregoing discussion, the TCC provides for special effect and
consequence for the examination of generalized transaction terms. It is obvious that
the aim of the legislation is to separate out through examination of the generalized
terms in commercial transactions between merchants, the general provisions of
TCO. This is subject to Article 55/1 of TCC and the application of the relevant
sanctions in case of a finding of unfair competition instead of the imposition of an
unwritten sanction. In this regard, rather than the general provisions of TCO, Article
55/1 of TCC should be applied to commercial contracts and transactions such as
contracts of affreightment and bills of lading. Besides, in the TCC there are compulsory provisions with regard to maritime law and these provisions constitute a kind
of generalized transaction terms examination. This issue is examined in detail below.
16 Baştuğ, Hukukun Temel İlke ve Kavramları, 1975, p. 85.
12
P. Akan