INTRODUCTION

A contract is a legal transaction based on the mutual and appropriate declaration of will of the parties.1 The rapid development of technology in the globalizing world and its manifestation in different fields have also been reflected in legal relations. Thus, legal relations began to be established in the electronic environment. In this direction, contracts that we encounter in many areas of life can be concluded in the physical environment as well as in the electronic environment. In accordance with the today's requirements, contracts in the legal system can be drawn up in electronic media and established in electronic media. Due to the convenience of the formation of electronic contracts, it is commonly used in the daily lives of most people and these people become parties to electronic contracts many times.

1-General Agreements and Offer and Acceptance in Contracts

As stated under the Article 1 of the Turkish Code of Obligations No. 6098, a contract is established by the mutual and appropriate expression of the will of the parties.2 While the will of the parties may be explicit or implicit, the important thing is the consensus of the declarations of will of the parties to the contract. The consensus of the will of the parties mentioned in the relevant article is established through "offer" and "acceptance". The first statement in the contracts is called "offer" and the subsequent statement is called "acceptance". Offer is a declaration of intent, which includes the proposal to conclude the contract and has been made before time for this purpose, must reach the other party (the interlocutor), is unilateral, final and binding, and results in the conclusion of the contract with the acceptance of the interlocutor. For this reason, the proposal is an invitation for the establishment of the contract. If "acceptance" occurs after the offer, whose legal nature is a unilateral declaration of will, mutual declarations of will are made and thus a contractual relationship is established.3

In order for the proposal to be accepted and thus the will of the parties to reach a consensus, certain conditions must be met. First, the offer must reach the interlocutor. Because,  a valid offer cannot exist unless it arrives under the dominance of the person who will form the party to the contract. In addition, the content of the offer should also include the objective and subjective points of the relevant contract. Otherwise, the aforementioned statement will be called an "invitation to offer" with the nature of offer. In the invitation to offer, the declarant does not reveal her final will, intention to borrow, but only declares that he/she is ready to conclude a certain contract against the interlocutor. The offer should be clear and unambiguous. The offer may be time-bound or not limited to any time. In case of a duration, the party making the proposal is bound by this proposal until the deadline. If the declaration of acceptance does not reach him/her within this period, she/he is not bound by the contract. In the case of an indefinite proposal, the duration of adherence to the proposal varies depending on whether it is made between those who are present at the same place and those who are not.

2- Contracts With Electronic Means

Contracts concluded via electronic means are also established by the declaration of will, just like classical contracts defined under the Code of Obligations. Because, what should be understood from the discourse of "contracts with electronic means" is that the contract was formed with a different and new method of establishment, not a new and different content. Although the main element in contracts concluded with electronic means is the consensus of the will of the parties, they differ from classical contracts in some aspects. As a matter of fact, the offer and acceptances required for the establishment of the contract type are established this time through electronic means. For suggestions made by electronic means, the electronic tool used by the proposer is taken as a basis in the calculation of the time period to which he is bound by the suggestion. For the offer to be considered an acceptance, it must be accepted in accordance with the terms of the proposal. Otherwise, it will be considered a new offer not an acceptance.

Offer and acceptance stages in contracts concluded with electronic means take place in four different ways: via e-mail, through websites, through social media sites, and finally through simultaneous communication channels. For example, in contracts concluded on the Internet, the declaration of acceptance can be made with the "I accept" button on the web page or via e-mail, and thus it would be done by electronic means.

Contracts made with electronic means can show themselves in a wide variety of areas, even if it is not noticed in the flow of life. Electronic contracts for the sale of goods, which are very common type of contracts, are becoming more and more common with the developing technology. In terms of their subjects, contracts made by electronic means are established for the sale of goods, the sale of digital products or the provision of services. Shopping for food or textiles over the Internet is one of the most used examples of electronic contracts, these are contracts made with electronic tools for the sale of goods. In contracts of this nature, the will of the parties is matched through the internet, but the performance of the contract is usually carried out by conventional means such as courier. Contracts involving the provision of services are contracts in which the service performance is realized by electronic means. In this type of contract, the service that is the subject of the contract takes place on the internet. Contracts that we encounter quite frequently in the ordinary course of life, such as buying plane tickets, making hotel reservations, making payments by using cards during travel by public transport, are examples of this. In addition, transactions for providing services, especially in the banking and finance sector, are also a method used in practice through electronic contracts. Therefore, contracts established with the electronic means are far beyond the purchase and sale of goods over the internet and have a broad meaning. Considering the electronic contracts executed through the banking sector, the fact that bank customers can make payments with QR code without any physical contact is a great example of the reflection of the developing technology on legal transactions in terms of electronic contracts. Another type of electronic contract has emerged with the meeting of the technological needs brought by technology to our lives.

At this point, instead of selling goods, it is the purchase of digital products. In contracts targeting the sale of digital products, unlike contracts for the sale of goods, the execution of the contract is also done on the internet. The subject of these contracts are films, books, musics etc. It is related to the receipt of data in the electronic environment such as electronic media and uploading it to the computer of the recipient on the other side of the contract. Digital products are generally products that are performed to the buyer by "download". For example, the downloading of digital products known as electronic books to technological tools is also carried out through a contract. Another area where electronic contracts take place is the legal transactions established for obtaining information. In this case, one party to the contract transmits information to the other party. For example, the transmission of up-to-date news to a person through a contract established in the electronic environment and ensuring that he/she is informed about the developments in the world and the country are examples of this type.

3- Electronic Contracts Made Inter Praesentes and Electronic Contracts Made Inter Absentes

Contracts are divided into two as inter-preasentes and made inter absentes contracts, depending on whether there is a period between the declaration of will and its reaching to the other party. If the parties to the contract mutually explain their statements to each other, this is an interim contract. In electronic contracts made inter absentes, there is a time between the will of the parties and the delivery of the contract to the other party. However, they do not have to be physically present in the same environment for a contract to be ready. The important thing is that the parties learn the declarations of will simultaneously and take action on it. As a matter of fact, article 4 of the Turkish Code of Obligations "A suggestion made during direct communication with means of communication such as telephones and computers is deemed to have been made among those present." Accordingly, this matter has been taken into consideration.

On the other hand, the fact that the contracts concluded with electronic means can be concluded as inter-preparatory or non-preparatory contracts varies according to the instruments used. If the will of the party reaches the other party immediately through the tool used during the conclusion of the contract, then there is an electronic contract made inter praesentes. Contracts realized via internet, teleconference, video are of the nature of an inter peaesentes contract. However, if the will of the party reaches to the relevant person within a certain period of time, a non-intermediate contract will exist. For example, contracts established via e-mail are examples of this.4 Therefore, although the computer is mentioned in the Article 4 of the Code of Obligations, if the offer statement on the computer cannot be accepted instantly, there will be no contract between them. In the offer and acceptance made via e-mail, the aforementioned statements must be included in the domain of the person concerned. In this case, if the relevant statement is sent to the person's e-mail box, the suggestion or acceptance will be deemed to have been realized. However, assuming that the relevant e-mail is not seen or overlooked, this situation will create an unfair situation, so the proposal or acceptance should be expected from the relevant interlocutor to learn. However, if the addressee cannot be expected to know the offer or acceptance in the ordinary course of life, then the proposal or acceptance will be deemed as has not been made.5

The conclusion of the contract between those Contracts Made Inter Praesentes and Contracts Made Inter Absentes are also important in terms of determining the moment of establishment of the contract. If the acceptance declaration has been notified to the ready contract party, the establishment moment of the contract is taken as the moment when the acceptance declaration is made. When it comes to a contract between those who are not ready, there is a more complex system. There are different opinions as there is no provision in the Code of Obligations regarding the moment of establishment. The opinion that the majority agrees on this issue is based on the theory of access. Accordingly, the contract shall be deemed to have been concluded as soon as the declaration of acceptance reaches the party making the offer. Reach mentioned here does not mean that the party making the offer learns this declaration of acceptance. Even if the party making the proposal does not know that the declaration of acceptance has been received, it is sufficient that this information has come to the dominion area. Therefore, the contracts concluded in the electronic environment should contain the same features as the contracts concluded in the physical environment, and the existence of these conditions should be evaluated by interpreting them according to the concrete contract event. Although there is no definite rule based on the electronic contract between the unprepared, the view that the theory of access should be used coincides with the principle of protecting the interests of the parties in legal proceedings.

4- The Law to be Applied in Contracts Established by Electronic Tools

In contracts concluded with electronic means, unlike physically concluded contracts, the parties may not be in the same environment simultaneously. Considering a contract concluded on a website or on the internet, the contract is concluded even when the parties to the contract are located in different countries. In this case, the determination of the law to be applied to the relevant contract is also important. If the parties to the contract do not have any foreign element, it is fixed that the Code of Obligations will be applied, but otherwise, the conflict of laws rules will be applied. Pursuant to the Article 24 of the International Private and Civil Procedure Law, the priority will be given to the free will of the parties and the subjective binding points will be applied. If the parties do not choose the applicable law with their free will, in this case the objective binding point will be taken as the basis and the relevant International Private and Civil Procedure Law articles will be applied.6

5- Form Requirement for Contracts Established with Electronic Tools

A contract concluded by electronic means is realized by the consensus of the declarations of will, unless there is any special legal provision or the parties do not specifically decide on a form requirement Assuming that there is any special situation, since the written form requirement mentioned in the Code of Obligations covers the handwritten signature, it will not find application in contracts concluded with electronic means. In order to eliminate this deficiency, Electronic Signature Law No. 5070 has taken its place in the legal system. In addition to the fact that the relevant laws exist, the measures to prevent the parties from experiencing any grievances in the contracts concluded with electronic means, as well as the Electronic Signatures institution, were also sought to be secured.

6- Electronic Signature

At the point reached by mentioning the diversity of contracts established in the electronic environment, many products and even services can now be sold in the electronic environment. In order to obtain maximum efficiency from the said contractual relationship, the relevant commercial activity must be carried out in a transparent, open and secure manner. In contracts concluded with electronic means, unlike conventional contracts, there is a possibility of victimization since the parties are not face-to-face. The need to take the necessary measures at the legal level in order to prevent the related victimization has arisen. In order to realize the aforementioned measures, the Law on the Regulation of Electronic Commerce, which entered into force on May 1, 2015, created the basic regulation regarding electronic commerce in Turkey. According to the Article 1 of the E-Commerce Law, the purpose of the law is to regulate the principles and procedures regarding electronic commerce. Its scope includes the responsibilities of commercial communication, service providers and intermediary service providers, contracts made with electronic communication tools and the obligations to provide information regarding electronic commerce, and the sanctions to be applied. Since electronic contracts are established faster than conventional contracts, there is a possibility of encountering certain security problems. In order to prevent this situation, the electronic signature institution called "electronic signature" has been activated. One of the most important differences of contracts concluded with electronic means from classical contracts is that the signature cannot be handwritten. Based on this important difference, secure electronic signature is included in 14/2 of the Code of Obligations in order to ensure the accuracy of the data in the contracts signed with electronic means, to be able to identify and to realize the purpose of proof before the relevant authorities. Electronic signatures that depend on the signer, are only at the disposal of the signer, rely on a qualified electronic certificate, and ensure that no changes have been made to the signed document, are called secure electronic signatures. The electronic signature has the same legal value as the handwritten signature and does not have exactly the same legal result. However, an electronic signature that produces exactly the same legal result as a handwritten signature is a secure electronic signature. The reason for this is that "A secure electronic signature has the same legal result as a handwritten signature" in Article 5 of the Electronic Signature Law is the item.7

Conclusion

As it can be understood from the explanations above, the contracts concluded in the electronic environment are not clearly and unequivocally separated from the contracts defined in the Code of Obligations No. 6098. It is clear that electronic contracts have also progressed in the same parallel line since the contract definition has been made in the first article of the Turkish Code of Obligations. In order to establish electronic contracts, mutual and appropriate declarations of will of the parties are required. In addition, just like in other types of contracts, the proposal and acceptance stages are presented in order and in the same way. However, the proposal and acceptance stages of the contracts made in the electronic environment differ according to the electronic environment, and at this point, there is a system that progresses in line with the unique characteristics of electronic contracts. Concepts that emerge with technology such as websites and social media channels and which are key in electronic contracting distinguish these types of contracts from others. Therefore, it also requires a contractual environment that includes rules in itself. The requirements of the parties to apply for an electronic contract also reveal a distinctive feature. The fact that there are bilateral legal transactions such as digital product purchase and sale contracts and service procurement contracts to be executed in the electronic environment is another feature of the contract executed in the electronic environment, and it constitutes a legal transaction open to technology and the developing world beyond general contract habits. Therefore, the rules and definitions for contracts concluded in the electronic environment are in parallel with the general contract definition and rules, but they are a new and different type of technology and, it appears as a legal transaction that also contains its own specific issues and requirements.

Footnotes

1. Eren, Fikret, Borçlar Hukuku, Genel Hükümler, B. 10, İstanbul 2008, s. 203 vd.

2. Oğuzman, M. Kemal/ Öz, Turgut M., Borçlar Hukuku Genel Hükümler, Cilt: 1, Gözden Geçirilmiş 16. Bası, İstanbul 2018, s. 42

3. Bayram, Erman, Güncel Gelişmeler Işığında Elektronik Sözleşmelerin Kurulması, Türkiye Barolar Birliği Dergisi, Cilt: 28, Sayı: 119, Temmuz 2015, Sayfa: S.352

4. Turan, Gamze Elektronik Sözleşmeler ve Elektronik Sözleşmelere Uygulanacak Hukukun Tespiti, Türkiye Barolar Birliği Dergisi, Cilt: 21, Sayı: 77, Temmuz 2008, Sayfa: 96

5. Bayram, Erman, Güncel Gelişmeler Işığında Elektronik Sözleşmelerin Kurulması, Türkiye Barolar Birliği Dergisi, Cilt: 28, Sayı: 119, Temmuz 2015, Sayfa: S.357

6. İsmet Kahraman ARSLAN- Neslihan ÖZ , İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, Yıl:19 İsmet Kahraman ARSLAN- Neslihan ÖZ , İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, Yıl:19 Sayı:38 Yaz 2020/2 Elektronik Ticaret Sözleşmelerine Uygulanacak Hukuk, İsmet Kahraman ARSLAN- Neslihan ÖZ , İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, Yıl:19 Sayı:38 Yaz 2020/2 Elektronik Ticaret Sözleşmelerine Uygulanacak Hukuk, S:24

7. Camcı, Sinem, İnternet Üzerinden Kurulan Sözleşmelerde Elektronik İmzanın Hukuki Niteliği, Terazi Hukuk Dergisi, Cilt: 15, Sayı: 165, Mayıs 2020, Sayfa: 1017-1029

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