ISTANBUL MEDIPOL UNIVERSITY FACULTY of LAW

E- COMMERCE LAW MIDTERM EXAM

The exam will take 60 minutes. Please answer only four questions. Additional answers will not be counted.
Each question is worth the same number of marks. You may use the dictionary. We wish you good luck!

CASE

Salih B., a bag manufacturer, realises that he is not earning enough from traditional trade and wants to
increase his profitability by selling his products in new markets. After receiving many recommendations
from his friends to sell his products on the Internet, Salih B., instead of setting up his own website, entered
into a “marketplace agreement” with Yoda Platform, which is owned by Yoda Platform İşletmeciliği AŞ.
Salih B. started exhibiting the bags he produced on the Yoda Platform through the password and user panel
assigned to him after concluding the agreement. Ahmet, who had been planning to buy a nice bag for his
wife for a long time, liked the bags Salih B. displayed on the Yoda Platform and wanted to buy them.

QUESTIONS

1. Please explain the legal nature of the agreement (“marketplace agreement”) between the Yoda
Platform İşletmeciliği AŞ and the Salih B.

The agreement between the intermediary (Yoda Platform İşletmeciliği AŞ) and the seller (Salih B.) is an
anonymous contract that has emerged to meet the needs arising from the developments in commercial and
economic life, the essential elements of which are not regulated by law. In this contract, the intermediary
undertakes multiple obligations such as displaying the goods or services of the seller/provider through the
distance marketing system, ensuring the conclusion of the contract, and collecting the contract price on
behalf of the seller/provider. However, all of these obligations have a special integrity in the contract. This is
because if the intermediary fulfills these obligations as a whole and together, the contract will have achieved
its purpose and the seller/provider will have obtained the benefit expected from the contract.

The basic performance agreed by the parties in the contract is the intermediary's intermediary activity for the
establishment of a distance contract through the distance marketing system, and there are a number of
features that this performance must bear.

In addition to the intermediation activity, the marketplace operator undertakes certain primary acts that may
change the legal nature of the contract, which causes the marketplace contract to be generally characterized
as an anonymous contract. Within the framework of the doctrinal approaches regarding the provisions
applicable to anonymous contracts, the agency provisions regulated under the TCC may be applicable.
Again, in cases where the activities of the marketplace operator are purely intermediary activities, there is a
direct agency agreement. Therefore, in both cases, the application of agency provisions to the intermediary
relationship between the seller and the marketplace operator will come to the agenda.

2. If Ahmet places an order through Yoda Platform, explain the legal nature of the agreement between
Ahmet and Yoda Platform İşletmeciliği AŞ. Would your answer change if Ahmet did not have a
subscription to Yoda Platform?

When the agreements established between the consumers and the intermediaries regarding the use of the
said system are examined, it is noteworthy that this legal relationship is basically for the service of providing
a shopping platform. These agreements generally regulate the conditions of use of the relevant platform, that
the consumer may only apply to the seller in case of problems arising from distance contracts, that this
activity carried out by the intermediary does not make it a party to the contract, and that the intermediary has
the authority to collect on the distance contract established as a commercial representative. In addition,
regulations regarding the intermediary's obligation to protect the personal data shared by consumers are
included in the contracts.

Within the scope of the framework contractual relationship, the intermediary undertakes multiple obligations
towards the consumer, such as ensuring interaction with multiple sellers/providers and establishing a
distance contract by keeping the distance marketing system ready for use, taking all necessary measures for
the consumer to have a safe shopping experience, keeping the system free from criminal content, and
ensuring the security of personal data. While becoming a member of a platform, the consumer has a justified
expectation in terms of establishing a distance contract through a secure shopping platform, ensuring the
security of his/her personal data in this process, not being exposed to certain acts whose content constitutes a
crime and not encountering "fictitious sellers" in this context. In the interest of consumers, all these issues
must be fulfilled by the intermediaries in integrity. In other words, it is not only sufficient for the
intermediary to provide a shopping platform by bringing together multiple sellers/providers, but also to
establish the security of this platform. Therefore, the agreement in question should be evaluated within the
scope of sui generis contracts arising from the need of the application, which are not included in the legal
contract types and are formed by combining the performances stipulated by the parties in a way to constitute
a special integrity.

It should be noted that with the use of the distance marketing system for the establishment of the distance
contract between the consumer and the seller, a contractual relationship is also established between the
intermediary operating this system and the consumer. This result should be evaluated independently of
whether the consumer is a member of the platform or not. The membership agreement is a framework
contract between the consumer and the intermediary. However, in cases where the platform allows the
consumer to purchase goods or services without establishing such a membership agreement, it is necessary
to accept that a contractual relationship is established between the consumer and the intermediary when the
consumer establishes a distance contract using the platform. As a matter of fact, both the consumer and the
intermediary are individually under certain obligations with the establishment of the legal transaction in
question.

3. If Yoda Platform İşletmeciliği AŞ wishes to amend the marketplace agreement, please explain the
method to be followed according to the legislation. Explain the principles regarding the validity and entry
into force of the amendments made by Yoda Platform İşletmeciliği AŞ.

Yoda Platform shall notify the Salih B of the amendment of the brokerage agreement via the internal
communication system and also via the approved electronic communication address.

Unless a longer period is determined by the Yoda Platform, the contract amendments shall be put into effect
at the end of fifteen days from the date of notification. This period is thirty days in cases that require
technical development by the Salih B and in cases that have consequences such as increasing commission
rates and other service fees, restricting, suspending or terminating the brokerage service, imposing new
penal conditions on the Salih B, deteriorating the balance of rights and interests against the Salih B.

The Salih B may terminate the brokerage agreement without compensation for the contract amendments to
be put into effect at the end of the thirty-day period by notifying via the internal communication system
before the expiration of this period. The termination shall take effect as of the date of the termination
notification.
4. Evaluate each of the declarations of intent regarding (i) Salih B.'s display of the bags on the Yoda
Platform, (ii) Ahmet's request to purchase the bags through the Yoda Platform, and (iii) Salih B.'s shipment
of the relevant bag to Ahmet in terms of the declarations of intent regarding the formation of the contract of
sale. Would your answer change if the product displayed by Salih B. on the Yoda Platform was an e-book
rather than a bag? Explain.

In electronic commerce, goods or services uploaded to a website constitute an offer, the buyer places an
order electronically for the purchase of goods and services, i.e., by making a declaration of acceptance to
establish the contract, the buyer puts himself under an obligation to pay, and the other party is under an
obligation to deliver goods or provide services. It should be noted that there are also opinions in the
literature that do not accept goods or services uploaded on websites as offers. As a matter of fact, according
to the prevailing view in the doctrine, as a rule, in indirect electronic commerce conducted through websites,
since the seller sells physical goods, he may not have the physical goods in stock and may need time for
procurement, for this reason, websites are accepted as an invitation to offer, the buyer makes a suggestion
that he will buy the goods if he wishes, and if the seller is in a position to supply the goods, he makes a
declaration of acceptance and the contract is established. According to this opinion, if the website is
accepted as an offer, placing an order despite the lack of the product in stock and the failure to supply the
product will result in an indemnity obligation for the seller.

In this sense, (i) invitation to offer, (ii) offer, and (iii) acceptance.

In case that the product was an e-book; (i) offer, (ii) acceptance, and (iii) performance.

5. Evaluate the sales agreement, which was established after Ahmet requested to buy the bag through
the Yoda Platform and Salih B. agreed to sell the relevant bag to Ahmet, according to the environment in
which the agreement was made and the time at which the agreement was made. Would your answer change
if the sales agreement was established via phone or fax instead of the website? Explain.

According to the environment:

An electronic contract is a contract in which the parties communicate their wills for the conclusion of the
contract to the other party in the form of writing, words or signs through electronic means of
communication. The concept of e-contract is related to the form of the contract rather than its content.

As we have already discussed, the concept of electronic environment, in a broad sense, includes computer
networks, as well as tools and media such as telephone, fax, television, radio, electronic fund transfer,
electronic data exchange. In the narrow sense, which is important for electronic commerce, it covers only
open and closed computer networks, especially the internet. In this context, there are different opinions in
the doctrine as to which agreements concluded through electronic environment shall be considered as e-
contracts. One opinion argues that the concept of e-contract covers only the agreements concluded through
the internet. The other opinion argues that all agreements concluded through any electronic means fall
within the scope of e-contracts. Although the internet environment is the most appropriate platform for e-
contracts, all agreements concluded through any electronic means should be considered within this scope.

According to the the time at which the agreement was made:

When evaluating whether e-contracts are established between the parties who prepare or between the parties
who do not prepare, it is necessary to consider whether there is an uninterrupted communication between the
parties. If there is no interruption between the mutual statements of the parties, the existence of a contract
between the preparers will be mentioned. However, if there is an interruption in the communication, even
for a short period of time, there will be a contract between those who are not prepare. Therefore, contracts
concluded via telephone are concluded between the parties as they can learn each other's declarations of will
without any interruption (Art. 4/2 of the TCO). On the other hand, in the case of wills expressed by fax,
although the declarations are immediately transmitted to the other party, the moment of the other party's
learning of these declarations may not occur immediately as in the case of telephone. In other words, it
cannot be known with certainty whether the expressed will has been learned at the moment it is transmitted
to the other party. Therefore, contracts concluded by fax are considered as a contract between those who are
not present.

Contracts concluded through applications enabling communication over the internet are deemed to have
been concluded between the parties if they meet the condition of being uninterrupted. Here, there is no doubt
in terms of contracts concluded through internet calls and video conference calls. However, contracts
concluded through messaging over the internet vary depending on whether the parties communicate
simultaneously without interruption.