Nowadays, there is significant increase in tourst visits and foreginers with a resindance permit in our country. Consequenly, consumer contracts are beggining to be drafted between both foreigners and citizens. Consumer contracts that involve foreign elements have differents in terms of the applicable law designed to protect consumer rights. The rules regarding this situation are regulated in the Law on International Private Law.
Contracts between parties are subject to the law chosen by the parties themselves nowadays. However, consumer contracts are exceptions to this freedom. Due to consumers being considered the weaker party, limits have been established to ensure the balance of interests. The law applicable to cosnumer contracts is determined in accordance with article 27 of the Law on International Private Law.
According the article 26 (1) parties are able to chose law that governing law of the contract. However, chosen law sould include basic protections offered to the consumer according to consumers habitual residance rule to ensure the balance of interests. If the protections are not provided by chosen law, habitual residace law sahll apply to the relevant situations of a contract. The law applicable to the remaining provisions of the contract is the law chosen by the parties.
ARTICLE 26 (1) – The consumer contracts lacking a professional or commercial aim but concluded in order to acquire goods, service or credit, are subject to the law designated by the parties. The minimum protection which the consumer will be hold through the statutory provisions of law of his/her habitual residence, are reserved.Formun Üstü
If parties did not chosee law when drafting a consumer contract, habitual residance’s law of consumer will govern the law of conract. However, there are three conditions for this situation to be applicable. These terms are drafted by article 26 (2) ;
a) The contract should be concluded upon a specially sent invitation or an announcement, and the required acts should be performed by the consumer in the abovementioned state,
b) The other party or its representative should receive the consumer’s orders in the abovementioned state,
c) In case the relationship is a sales contract, the seller should organize a trip in order to persuade the consumer to purchase and the consumer should travel to another country and give his order therein.
If the terms includes this situations, habitual resinace’s law of the consumer will govern the contract.
Artıcle 26 (3) – The law of the habitual residence of the consumer shall be applied to the consumer contracts concluded under the conditions specified in paragraph 2.
This provision does not apply in the case of carriage contracts and when the service is provided outside the habitual residence country.
ARTİCLE 26 (4) – This article, excluding package tours, shall not be applied to carriage contracts and to the contracts in which it is required to provide the service to the consumer in a country different than the location of his habitual residence.
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Mihri Ecem Donma
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