1. CONCLUSION OF AN AGREEMENT, OFFER AND ACCEPTANCE

According to Turkish law, agreements are legal transactions that arise from the manifestation of parties’ mutual and consentaneous deceleration of intentions pursuant to article 1 (one) of the Turkish Code of Obligations (“TCO”) numbered 6098. As it is seen, it is required that two or more people mutually manifest their deceleration of intentions which must be consentaneous in order to generate legal effect. Having said that, within the legislation framework, unless expressed otherwise on the legislation regarding special agreement types, notwithstanding the fact that parties’ manifestation of declaration of intention is not subject to any form, the declaration of intent must reach to the counterparty for the sake of conclusion of an agreement. In this regard, although it is possible to indicate that no requirement of form is de jure provided for in terms of validity of an agreement, accordance of parties’ declaration of intention through offer and acceptance is the essential constituent for conclusion of an agreement.

On the other hand, notwithstanding that, the fact that offer and acceptance are in accordance as required by the law is essential constituent to conclude an agreement, such accordance may not be sufficient for an agreement to be valid. In this respect, it is indicated that other conditions for an agreement to be valid for the parties are; parties having capacity to act, the agreement not being in contradiction with peremptory rules of law, subject of the agreement not being impossible, and the declarations of intentions of the authorised parties to conclude the agreement not being defective. As such, for agreements where many dynamics are required, in case more than two parties satisfy the conditions mentioned above completely, it is possible to conclude an agreement whereby they will be able to claim rights against and encumber with debts each other.

2. LEGAL CHARACTER OF E-AGREEMENTS

Upon electronic commerce has taken its place in business life, works on legal regulations on this field have been continuing as open to improvement in Turkish Legal System as it is worldwide. While the term e-agreement, which is the foundation of electronic commerce, functionally provides great advantages in the most general sense, it may lead to certain legal issues as it has freshly come into legal world, and no proper distinctive legislation has yet to be found.

E-agreements are concluded in electronic means although they share the same legal constituent with typical agreements. Likewise, e-agreements are made by digitising both declaration of intentions of the parties or one of the parties to the agreement, as text, display, audio and such other data; and are thus conveyed to the counterparty. Therefore, let alone legislation provisions as to e-agreements, in general, general provision that relates to the term “agreement” will apply for e-agreements as well. As will be mentioned in detail below; e-agreements show similarities with typical agreement norms in many aspects, nevertheless, the former differs significantly from the latter as to proof and validity due to its nature.

3.CONCLUSION OF E-AGREEMENTS AND LEGAL VALIDITY

E-agreements are considered as adhesion and distance agreements in context of legal nature. Within the framework of legislation, such agreements are referred to as “agreement between absentees” as provided for in article 11 (eleven) of TCO. This reference was made by the legislator due to the fact that the parties are unable to become aware of their offers instantly, and time interceptions between the transactions.

With this being said, the term “distance agreement” is explained terminologically in the Code on Protection of Consumers numbered 6502, therefore, it covers circumstances where the parties are bodily in different places, regardless of when the parties become aware of their declaration of intent and irrespective of which means are used. Although there are doctrinal debates concerning the term “e-agreement” as to assess it under which definition and legal field, TCO has finished the debates. In article 4 paragraph 2 of TCO provides that;

 “An offer made during direct communication by means of media which can provide connection such as phone and computer shall be deemed as made inter praesentes”

 The said provision explicitly points that an e-agreement will be considered as inter praesentes if it is made by means of electronic media that provides direct connection. Accordingly, one reaches to the conclusion that the subject of whether an e-agreement constitutes inter praesentes should be assessed by finding how and when the parties’ declarations are conveyed to the counterparty through electronic means.

In this sense, it is possible to indicate that the means and the form used in conclusion of an e-agreement is highly important. In as much as the difference in conclusion of e-agreements arise from the method but not the merits. For this reason, principally, e-agreements are subject to the provision related to conclusion of an agreement that are laid down in TCO from article 1 (one) to article 12 (twelve). At this point, one can articulate that the compulsory condition for the conclusion of an agreement, which is that the parties’ will must be consentaneous, is also applicable for e-agreements.

In light of those mentioned above, e-agreements must also include offer and acceptance as in other agreements. In this context, an offer to be made in respect of an e-agreement can be regarded as a mechanism that forms a text which includes the details of the products or services as subjected by and in the scope of the agreement, the fee charged for the product or the services, and which enable the counterparty to unilaterally accept the offer. On the other hand, the greatest issue for e-agreements may arise at the point of acceptance of the offer and the validity of the acceptance. Likewise, “acceptance” is a unilateral declaration of intent which includes his declaration of intention to be bound by the conditions of the offer and which must reach to the offeror.

As regarded, agreements concluded except from those in electronic media, parties are mutually present and sign the agreement mutually. However, for agreements to be concluded in particular between legal persons, it is important that the capability of the real person who signs the agreement has the power of representation. Nevertheless, from the aspect of e-agreements, it becomes uncertain whether acceptance is valid and legally binding on the legal persons for cases where there is solely “I accept” button.

In light of technological and current developments, secure electronic signature (“E-signature”) which is defined in article 4 (four) of the Code of Electronic Signature (“CES”) numbered 5070 have importance with regard to conclusion of an e-agreement. The purpose of CES is to provide that e-signature produces the same legal effects as the wet-ink signature. Apart from that, although it is obligatory for signature to be appended in hand-writing pursuant to article 14 (fourteen) of TCO, further in the provision it is clearly set out that e-signature will produce the same legal effects as the hand-written signature.

In this respect, conclusion of a legally valid agreement between two legal persons that wish to conclude an e-agreement may not occur through a mere “I accept” button  Accordingly, it is obvious that the use of an e-signature assigned for a representative of the company will provide great advantage as to the validity of and proving such agreement.