KOCABAŞ, Gediz Marmara Üniversitesi - Hukuk Fakültesi - Medeni Hukuk Anabilim Dalı, Turkey

AŞIRI YARARLANMANIN ŞARTLARI VE AŞIRI YARARLANMAYA BAĞLANAN HUKUKİ SONUÇLAR

20795

According to the principle of freedom of contract, the balance between promises are determined by the parties freely. On the other hand, limitation of the such principle is possible when a party aims to exploit the other’s weak bargaining position. One of the limits of the freedom of contract is arranged in TBK Art.28 under the heading of “unfair advantage”. Legally, where there is a clear discrepancy between performance and consideration under a contract concluded as a result of one party’s exploitation of the other’s straitened circumstances, thoughtlessness or inexperience, the injured party may avoid the contract retroactively. Instead of total avoidance the injured party may also exercise the right of partial avoidance to correct the discrepancy. Furthermore, whether the right of avoidance is exercised or not the compensation claim is reserved in the context of culpa in contrahendo.

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Unfair advantage , limitation of freedom of contract , clear discrepancy between performance and consideration , straitened circumstances , thoughtlessness , inexperience , exploitation , right of avoidance , prescription period , compensation for damage.

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142