Türkiye Adalet Akademisi Dergisi
Yazarlar: Erkan EREN
Konular:Hukuk
Anahtar Kelimeler:Commercial affair,Interest,General loan contract,Limitation of default interest,Freedom of interest rates.
Özet: Due to the specific requirements of commercial life, the provisions applied to commercial affairs differ from those applied to ordinary businesses. One of the most important differences is the provisions of interest applied to commercial affairs. Due to the fact that there is no restriction in Turkish legislation regarding the determination of interest rates in commercial affairs, some specific situations with quite high default interest rates may be encountered. Since the authority to determine the interest rates in the banking legislation is left to the banks with the Communiqué No. 2020/3 of the Central Bank of the Republic of Turkey, pretty high interest rates can be encountered in practice and therefore the bankruptcy of merchants and businesses that cannot pay their debts. In practice, it is observed that general loan agreements often include provisions that unilaterally leave the authority to determine default interest rates to banks, as well. It is also observed that banks sometimes leave the relevant parts blank instead of determining a definite default interest rate on the date of contract signature, and more often, they put provisions indexing the said rates to an uncertain interest rate. The written authority to determine unilateral interest rates in general bank contracts can cause serious legal and economic problems because banks are in equal positions with those who will use loans and banks have private law legal personality. However, the authority to establish an unilatera liability belongs merely to the administration (state) which has the public power. That is one of the most important issues that cause legal disputes on the validity of those sort of provisions. In this study, we tried to examine doctrinal and judicial decisions related to the restrictions of the default interest rates in commercial affairs by reference to the provisions of relevant legislation related to the subject in question and some legal assessments are made on the legal limits of the banks' freedom to determine the interest rates in commercial affairs have been made.