1. INFORMATION TECHNOLOGY LAW LECTURE 2- ELECTRONIC CONTRACTING Dr. Kadir Bas

2. Contracts (Sozlesmeler) A contract is an agreement made between two or more parties, which creates legally binding obligations to each of them. Contracts are only binding to their parties, but not third persons who are not parties to the contract. Contracts are enforceable by law. But, if any party fails to fulfil its obligations under the contract, the counter party must normally apply to official authorities (courts, executive offices (icra dairesi) etc) for forcing that party to fulfil its obligations. In principle, the conclusion of a sale contract does not automatically transfer the ownership of the good to the buyer. For the transfer of the ownership, the good should be delivered to the buyer, i.e. the buyer must hold the possesion (zilyetlik) of the good.

3. The Underlying principles for the Conclusion of a Contract under Turkish Law Turkish Code of Obligations (Turk Borclar Kanunu) (BK) set out(Düzenlemek) the legal principles for the conclusion of a contract. Article 1 of BK: “Sözleşme, tarafların iradelerini karşılıklı ve birbirine uygun olarak açıklamalarıyla kurulur. İrade açıklaması, açık veya örtülü olabilir.” Accordingly, for a contract to be formed, there must be a concurrent(eş zamanlı, birbirine uyuşan) expression of intent by the parties

4. The Underlying principles for the Conclusion of a Contract under Turkish Law Essential Terms v Secondary Terms Article 2 of BK: where the parties have agreed on all the essential terms (esasli noktalar), it is presumed(varsaymak) that the contract will be formed, even if they have not agreed on the secondary terms (ikinci derecedeki noktalar). With regard to sales agreements(Satış anlaşmaları ile ilgili olarak): Essential terms: ‘the good or service that will be supplied’ and ‘the price’ Secondary terms: terms regarding the place, date and means of payment or of the delivery of the product

5. The Underlying principles for the Conclusion of a Contract under Turkish Law Offer (öneri, icap) In order for the formation of a contract, firstly a person must offer another party to enter into a contract. Offer must include essential terms. Offer does not have to be made to a specific person. It can also be made to public The offeror is bound with its offer

6. The Underlying principles for the Conclusion of a Contract under Turkish Law The binding period of an offer Offers subject to time limit: the offeror is bound by his offer until the time limit expires. Offers without time limit: - Where an offer is made in the offeree’s presence, it is no longer binding on the offeror unless the offeree accepts it immediately. - Where an offer is made in the offeree’s absence, it remains binding on the offeror until such time as he might expect a reply sent duly and promptly to reach him. Where an acceptance sent duly and promptly is late in reaching the offeror and he does not wish to be bound by his offer, he must immediately inform the offeree.

7. The Underlying principles for the Conclusion of a Contract under Turkish Law Invitation to Treat (icaba ya da öneriye davet) invitation made by a person to another person to enter negotiations, ie to make an offer. the party who has made an invitation to treat is not bound with this invitation The acceptance of an invitation to treat constitutes an offer the display of a product with its price and the sending of tariffs, prices lists and the like constitute an offer unless it is clearly and easily understood otherwise.

8. The Underlying principles for the Conclusion of a Contract under Turkish Law Acceptance (Kabul) Acceptance is the expression of intent by the offeree to enter into contract with the offeror based on the terms contained in the offer The acceptance of the offer create a contract binding both parties The acceptance must match the offer

9. The Conclusion of a Contract Electronically Direct and Instantaneous Communication BK art. 4/2: “Telefon, bilgisayar gibi iletişim sağlayabilen araçlarla doğrudan iletişim sırasında yapılan öneri, hazır olanlar arasında yapılmış sayılır.” Applicable Principles: those applied to offer and acceptance made in the presence of the parties The receiver must become aware of offer or acceptance instantaneously. (skype, whatsapp etc)/

10. The Conclusion of a Contract Electronically E-mail Prevailing (yenmek)opinion: between the parties not present If the parties can see their emails instantaneously (e.g. smart phones), offer and acceptance made via email can be considered to be made in the presence of the parties. (?) Offer and acceptance can be withdrawn, if the withdrawal email is seen before the offer or acceptance email

11. The Underlying principles for the Conclusion of a Contract under Turkish Law The Withdrawal of Offer and Acceptance An offer is deemed not to have been made : -if its withdrawal reaches the offeree before or at the same time as the offer itself or, - where the withdrawal arrives subsequently, if the offeree become aware of it before the offer. The same rule applies to a withdrawal of an acceptance

12. The Conclusion of a Contract Electronically Websites the display of products with their prices on a website constitutes an offer unless it is clearly indicated otherwise. between the parties who are present or not?

13. Auction Sales (acik artirma yoluyla satis) General Rules: Each bid is considered to be an offer. The bidder is normally not bound by his/her offer anymore when a higher bid is made. In the case of auctions, a contract is concluded when the manager of the auction awards the object concerned to the highest bidder.

14. Auction Sales (acik artirma yoluyla satis) Internet Auctions Auctions organiser (ebay, gitti gidiyor etc.) Seller bidder Which parties is the contract concluded between?

15. Auction Sales (acik artirma yoluyla satis) A contract is concluded when the system awards the object to the highest bidder. When does the bidder get the ownership of the object?

16. Standard-Form Contract Terms (Genel Islem Kosullari) A set of terms repeatedly used by a business in its contracts with numerous different parties. Standard terms are used in almost all contracts concluded on the Internet.

17. Standard-Form Contract Terms (Genel Islem Kosullari) http://www.apple.com/legal/internet-services/itunes/au/terms.html

18. Standard-Form Contract Terms (Genel Islem Kosullari) BK arts. 20-25 Standard terms in the disadvantage of the counter party are considered to be unwritten in the contract, if the business does not clearly inform the counter party about these terms, and this party accepts them. Standard terms which are not related to the nature of the contract and the work in question are considered to be unwritten in the contract. Standard terms which are included in bad faith against the counter party are also viewed to be unwritten.

19. Standard-Form Contract Terms (Genel Islem Kosullari) Standard terms considered to be unwritten are void(geçersiz). Other terms will continue to be valid. Terms giving the right to change any of the terms in standard-form contract in the disadvantage of the counter party will be void.

20. Distance Contracts and Consumer Protection Law No 4077 on Consumer Protection (4077 sayili Tuketicinin Korunmasi Hakkinda Kanun) (TKHK) art.9/A Directive on Distance Contrats (Mesafeli Sozlesmelere dair Yonetmelik) (MSY) Distance contracts refer to those concluded between a business and a consumer by any means (by telephone, e-mail, or other electronic tools) which do not require the simultaneous physical presence of the parties to the contract.

21. Distance Contracts and Consumer Protection Prior information The supplier(satıcı) must give the consumer the preliminary information about the identity of the supplier, the features of the product or service in question etc. (MSY art. 5) For the conclusion of the contract, the consumer must fill a form confirming that he/she has received such information.

22. Distance Contracts and Consumer Protection The right of withdrawal (Cayma hakki) For any distance contract the consumer shall have a period of at least seven working days to withdraw from the contract without penalty and without giving any reason. (MSY artc. 7-10) If the supplier does not fulfil(yerine getirmek) its obligations of providing preliminary information, the consumer may withdraw within 3 months. When these obligations are fulfilled, the seven- day period will apply afterwards. Where the right of withdrawal has been exercised by the consumer, the supplier must reimburse(geri ödemek, zararı karşılamak) the sums paid by the consumer free of charge within 10 days following the receipt of the withdrawal and must collect the product from the consumer within 20 days.

23. Distance Contracts and Consumer Protection Performance Unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier. This period can be extended by 10 days provided that the consumer is informed about this in advance.

24. Formal Requirements (sekil sartlari) for the Validity and Proof of a Contract Validity of a Contract BK art. 12: The validity of a contract is not subject to compliance with any particular form unless a particular form is set out by law. The parties may agree to make a contract subject to formal requirements. If so, the contract will not bind the parties unless the formal requirements are satisfied. Where the law requires that a contract be done in writing, that provision also applies to any amendment to the contract.

25. Formal Requirements (sekil sartlari) for the Validity and Proof of a Contract Validity of a Contract A contract required by law to be in writing must be signed by all persons on whom it imposes obligations. Signatures must be appended by hand by the parties to the contract. A secure electronic signature (guvenli elektronik imza) is considered to be the same as that appended by hand. The sale of immovable goods (tasinmaz satimi) must be made in the official written form (resmi yazili sekilde) at the registry of title deed (Tapu Sicili).

26. Formal Requirements (sekil sartlari) for the Validity and Proof of a Contract Proof of a contract The conclusion of a contract is different from proving it. Code of Civil Procedure (Hukuk Usulu Kanunu) (HUK) art. 200 “Bir hakkın doğumu, düşürülmesi, devri, değiştirilmesi, yenilenmesi, ertelenmesi, ikrarı ve itfası amacıyla yapılan hukuki işlemlerin, yapıldıkları zamanki miktar veya değerleri ikibinbeşyüz Türk Lirasını geçtiği takdirde senetle ispat olunması gerekir.” If the value of a right arising from a contract is more than 2.500 TL, it must be proved by a written document signed by the obligor (senet). E-documents with secure E-signature is also viewed as senet.

27. Formal Requirements (sekil sartlari) for the Validity and Proof of a Contract The Commencement of proof (delil baslangici) (HUK art.202): -if there are (written or electronic) records (belge) sent by the obligor, which show the possibility of the contract in question, witness may be heard for the proof of the contract. -E-mails can be considered as the commencement of proof.

28. Thank You!