Will Issues in Electronic Contracts: The Binding Effect of Electronic Contracts Concluded Through Check-Box Approval

I. INTRODUCTION

In today’s rapidly developing digital era, legal relations, like many other aspects of daily life, have been transferred into electronic environments. Especially online shopping, service procurements, and membership registrations allow parties to conclude legally binding contracts without physically coming together. This reality necessitates a re-evaluation of the classical principles of contract law—such as declaration of intent, freedom of contract, and the protection of parties—in light of the specific features of electronic transactions.

This study will first examine the formation of electronic contracts and declarations of intent, then discuss the balance between freedom of contract and consumer protection, and finally evaluate the reflection of standard terms in electronic contracts in light of Court of Cassation rulings.

KEYWORDS: Electronic contracts, declaration of intent, check-box approval, freedom of contract, consumer protection, duty of information.

II. FORMATION OF ELECTRONIC CONTRACTS AND DECLARATIONS OF INTENT

2.1. DEFINITION OF ELECTRONIC CONTRACTS

Contracts are formed through the reciprocal and matching declarations of intent of the parties. Given that the principle of freedom of contract prevails in Turkish law, expressing intent through electronic means is also possible. Accordingly, an electronic contract can be defined as a contract established through the communication of the parties’ declarations of intent via electronic tools.

2.2. DECLARATIONS OF INTENT IN THE FORMATION OF ELECTRONIC CONTRACTS

In Turkish law, declarations of intent are not subject to any form requirement. It is now quite common to declare intent via e-mail or by filling out an online form. The user may also declare intent through a check-box on a website containing statements such as “I Accept” or “I Have Read and Agree.” In such cases, the user conveys their declaration of intent to the provider through electronic means.

However, in many instances, the provider does not personally issue a declaration of intent. Instead, the provider’s computer responds with automated messages, thereby forming the contract through an automated declaration. The question arises whether such automated computer messages qualify as a declaration of intent. In our opinion, since the provider has programmed the computer to generate such messages, the automated declaration should be deemed as the provider’s manifestation of intent to conclude the contract.

2.3. OFFER AND APPROVAL IN ELECTRONIC CONTRACTS

For an electronic declaration of intent to produce legal effect, it must not only be issued but also reach the other party. Declarations of intent made via electronic communication are considered to be made between non-present parties.

The central debate in online contracts formed through forms or check-boxes concerns whether the provider’s display of goods or services constitutes an offer or merely an invitation to treat. If the provider lists a product or service with a price online, this should be deemed an offer, and the user’s declaration should be regarded as either approval or rejection.

According to another view, however, online displays of goods or services should be considered invitations to treat, since providers cannot predict demand or control stock availability. In this case, the consumer’s completion of an online form and check-box approval should be regarded as an offer, leaving the provider free to accept or reject it.

A further opinion suggests that if there are no limiting statements such as “subject to stock availability,” then the display should be considered an offer. Ultimately, the distinction between offer and invitation to treat in online contracts depends on the specific circumstances of each case.

If a website provides detailed information on the product or service, including its price and payment terms, then this display should be regarded as an offer. The user’s completion of a form or check-box approval would then constitute approval, binding the provider without the right to alter the contract.

III. BALANCING FREEDOM OF CONTRACT AND CONSUMER PROTECTION

3.1. CONSUMER CONTRACTS AND STANDARD TERMS

In contract law, agreements are formed when the parties make reciprocal and matching declarations of intent. However, in practice, especially for contracts concluded online, this process significantly diverges from the traditional principle of “mutual negotiation.” Most Online contracts consist of pre-prepared standard terms, leaving consumers only the option to “accept” or “reject.”

At this point, the concept of “standard terms” (general contract terms) comes into play. Terms imposed without giving the consumer any chance to negotiate are subject to judicial scrutiny under the TCO and the Law on Consumer Protection (LCP). Unfair terms and provisions contrary to good faith are deemed non-binding. Website “terms of use” and “membership agreements” are typical examples of standard terms.

3.2. GENUINE WILL AND THE DUTY OF INFORMATION

Freedom of contract relies on the parties’ autonomous will. A declaration of intent is composed of statements and actions capable of producing legal effects. In some cases, conduct alone (such as using a product under a trial sale) may constitute approval.

Frequently, consumers do not read the terms before granting approval, merely seeking to finalize their transactions quickly. Thus, while there is an apparent declaration of intent, the existence of a conscious and free will is debatable.

For this reason, the duty of information holds great significance in consumer law. Pursuant to Article 48 of the LCP and the Regulation on Distance Contracts, the seller or provider must clearly and understandably inform the consumer—before the contract is concluded—about the main characteristics of the goods or services, the total price, the right of withdrawal, and the duration of the contract. This duty serves not only to protect consumers but also to ensure that contractual freedom is based on a genuine will.

Since the parties are not physically present, the consumer is placed in a weaker position. Technical complexity, rapidly changing digital practices, and the absence of tangible documents all create an informational asymmetry to the detriment of consumers. Thus, the duty of information becomes the key safeguard for balancing contract freedom and consumer protection.

3.3. EVALUATION OF STANDARD TERMS IN LIGHT OF COURT OF CASSATION DECISIONS

The Court of Cassation has issued numerous landmark rulings limiting the enforceability of standard terms in consumer contracts. Provisions in standard contracts prepared by banks, insurance companies, internet providers, and GSM operators have often been deemed “unfair terms.”

In particular, the Court has emphasized that in distance contracts, the burden of proof regarding whether the consumer was duly informed about the right of withdrawal rests on the seller or provider. If proper information is not provided, the 14-day withdrawal period does not commence. Conversely, where adequate information is deemed to have been given, the period begins on the date the contract was concluded (for services). In one case, the Court annulled the lower court’s ruling after determining that the consumer had been duly informed and had exceeded the withdrawal period.

This decision illustrates that contracts accepted by ticking a check-box, including pre-information texts, are in fact standard terms. According to the Court, mere technical approval does not suffice as a declaration of genuine will; what truly matters is that the duty of information has been duly fulfilled.

IV. CONCLUSION

Electronic contracts formed through check-box approvals rarely provide the user with a genuine opportunity for negotiation. Consequently, while there may appear to be a declaration of intent, whether it reflects a conscious and free will remains debatable.

Under the TCO and the LCP, unfair terms are non-binding, and breaches of the duty of information expand consumer rights. At this point, the principle of consumer protection restricts the scope of freedom of contract. The TCO’s provisions on standard terms and the LCP’s duty of information are crucial in balancing the weaker position of consumers.

Court of Cassation decisions reinforce this approach by preventing freedom of contract from being used against consumers without limitation. Ultimately, consumer contracts can only be valid if based on genuine will and fair terms.