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Anahtar Kelimeler: Yapısal eşitsizlik, kamu düzeni, zayıf taraf, sözleşme özgürlüğü, piyasa aksaklığı. ABSTRACT…
Towards the protection of the weaker party, there should be legal precaution in contracts that occurs inequality between parties’ rights and obligations. Structural imbalance that cause aforementioned situation has not any legal regulation in Turkish law. On the other hand, this notion could be the example of the contrariety to public order that is a boundary of freedom of contract. When weaker party signs a contract, which takes his economic freedom away, it also violates the party autonomy in general. The precaution that secures substantial freedom of contract would demand judge’s investigation of overall conditions of national economic market and socioeconomic situation of the parties. Thus the structural imbalance exceeds the bonnes mœurs and consists as an example of the non-written rule of public order. In order to protect the legal certainty, it is important that establishing elements which are objective and originated from private law on the determination of non-written rules of public order. The objectives of structural imbalance are the dependency on counterparty in the context of the weaker party’s economic freedom, the danger of extension of inequality to other similar contracts and the conclusion of the contract as a result of market failure. …
Keywords: Structural imbalance, public order, weaker party, freedom of contract, market failure.…
