AN EVALUATION OF THE REFUNDABILITY OF THE ORGANIZATION FEE AND THE PRINCIPLE OF EQUITY UNDER LAW NO. 6361 ON SAVINGS FINANCE CONTRACTS

 

1. Legal Framework

Pursuant to Article 39/A of Law No. 6361 on Financial Leasing, Factoring, Financing and Savings Finance Companies, savings finance contracts are agreements concluded between consumers and savings finance companies for the purpose of meeting the consumers’ housing, vehicle, or similar needs through an interest-free financing model.

Under the Law:

• The company may charge the consumer an organization fee; and

• In the event that the contract is terminated by the consumer, the organization fee shall not be refunded.

This rule is based on the rationale that the cost borne by the consumer upon entering the system corresponds to the organizational and planning services rendered by the company.

2. Nature of the Organization Fee

According to the wording of the Law, the organization fee constitutes the consideration for the conduct of the savings finance activity and the management of the savings fund pool.
This fee is defined as the price for the service covering the planning of the system, the inclusion of the participant in the savings plan, the management of the fund pool, and the operational services provided during the term of the contract.

However, in practice, in the event of early termination of the contract, the consumer often terminates the contract without having actually benefited from the system.
Nevertheless, the fact that the organization fee is not refunded in such cases is controversial in terms of equity.

3. Assessment from the Perspective of Equity

a) Termination Producing Prospective Effects (Ex nunc Principle)

According to the Turkish Code of Obligations, in continuous obligations, termination, as a rule, produces effects only for the future (ex nunc).
In other words, the rights and obligations that have arisen before the termination remain valid, whereas those relating to the period following the termination are extinguished.

Therefore, it would be more consistent with the general principles of the law of obligations for the company to retain a proportionate part of the organization fee corresponding to the service rendered until the date of termination, and to refund the part relating to the period that has not been used.

b) Degree of Service Performance and the Principle of Unjust Enrichment

The organization fee constitutes the consideration for the service provided by the company to the participant.
If the contract has been terminated within a short time and the company has not actually rendered a service, retaining the entire fee would also be incompatible with the prohibition of unjust enrichment (Articles 77 et seq. of the Turkish Code of Obligations).

c) In Relation to the Management of the Savings Fund Pool

The organization fee is essentially intended to cover the expenses related to the management of the savings fund pool.

However, when the contract is terminated within a short time and the participant has not benefited from the fund pool, it should be taken into account that the participant’s contribution to the management costs of the pool must be limited to the actual service period.

Therefore, the organization fee should be accrued gradually — for example, in proportion to the time elapsed until termination or to the service actually rendered.

Such a practice would be more consistent both with the purpose of the Law and with the principle of equity.

4. Points of Attention for Consumers

Before entering into a savings finance contract, consumers should carefully consider the following issues:

• Non-Refundability Clause:
  The contractual provision stipulating that the “organization fee shall not be refunded” is binding upon the consumer. Therefore, the consumer should be aware that no reimbursement will be made in the event of unilateral termination.

• Conditions and Procedures for Termination:
  The conditions under which termination may occur, as well as the notice periods and methods, must be thoroughly examined.

• Savings Plan and Allocation Timeline:
  Consumers should clearly understand the timing and method of allocation of the savings they will contribute.

• Authorization and Supervision:
  Consumers must verify that the savings finance company is duly authorized and supervised by the Banking Regulation and Supervision Agency (BRSA).

• Pre-Contractual Information Form:
  The pre-contractual disclosure form, which the company is legally obliged to provide, should be reviewed carefully. Consumers must understand all fee components, refund terms, and the legal consequences of termination before signing.

5. Conclusion and Recommendation

Although Law No. 6361 currently stipulates that organization fees are non-refundable upon termination by the consumer, from the standpoint of equity, proportionality, and consumer protection, it would be more just and balanced for the company to retain only the portion of the fee corresponding to services actually rendered up to termination, while refunding the remainder.

A legislative amendment or judicial interpretation reflecting this approach would promote a fairer balance between the interests of consumers and savings finance companies, ensuring both legal certainty and equitable outcomes.