Internet Üzerinden Akdedilen Sözleşmelere Uygulanacak Hukuk

Abstract

Transactions made over the internet (which has become the easiest, cheapest and effective method of communication), have become an indispensable element of people’s business and private lives today. This fact also manifests itself in the establishment of contracts. The only difference between the establishment of contracts over the internet and other contracts is that the parties send their will statements over the internet. If these agreements contain foreign elements, the possible effects of sending the declarations of will on the internet to the rules of conflict of laws should be examined. According to Article 24 of Turkish Code No. 5718, the main rule is that the law explicitly designated by the parties shall be used in disputes that arise from the contracts. If there is a choice of law, the law to be applied will be identified by determining and interpreting the intents of the parties. In the absence of a choice of law, the disputes shall be governed by the law most connected to the contract. The legal presumption in this regard is that the law to be applied shall be the law of the place of business or habitual residence of the debtor of the characteristic performance of the contract. The fact that the contract was formed online has no effect on the determination of the law most connected to the contract or the determination of the characteristic performance of the contract. Again, the conclusion will be drawn by determining and interpreting the intents of the parties. It is difficult to determine and interpret the parties’ intents in contracts established over websites. The vast majority of such contracts are consumer contracts. Thus, consumer contracts are examined in a separate section in this study. According to Article 24 of the Turkish Code No. 5718, the main rule is that the law designated by the parties will be applied in case a choice of law exists. Yet, there is a limitation on applying the chosen law. According to this, the minimum protection to which the consumer will be held through the statutory provisions of the law of his/her habitual residence, are reserved. In this study, also the validity of the choice of law within general terms and conditions is examined in detail. In the absence of a choice of law in consumer contracts, the law to be applied shall be the law of the habitual residence of the consumer. However, in order for this rule to be applied, there needs to be a connection between the contract and the country in which the consumer’s habitual residence is located. In case the contract is formed via the internet, such a connection will be established only if the website owner demonstrates commercial or professional activities targeting the country in which the consumer’s habitual residence is located. In this study, a discussion regarding the determination of commercial or professional activities that target the consumer’s habitual residence was made in detail.