The seller has an obligation to transfer possession and ownership to the buyer under Article 207 of the Turkish Code of Obligations, and if the product is defective, defective or incomplete, under Article 219 the seller is liable for the lack of the characteristics expected by the buyer or for any defect that adversely affects the use of the product, whether he knows it or not...

What Is A Problem?

According to Article 207 of the Turkish Code of Obligations No. 6098, in return for the price to be paid by the buyer, the seller is under the obligation to transfer the possession and ownership of the thing sold to the buyer. As a rule, both parties must fulfill their obligations at the same time, but the opposite can be agreed in the contract. Since the delivery of the purchased product in a defective/damaged manner is a problem encountered at the stage after the seller fulfills his/her obligation, the seller's liability for defect should come to the fore. In other words, the seller has fulfilled its obligation, but this is a defective / bad / incomplete performance. Pursuant to Article 219 of the Code of Obligations; the seller is liable for the non-existence of the characteristics that he notified to the buyer in the thing sold, as well as for material, legal or economic defects that adversely affect the qualitative and quantitative benefits that the buyer expects from the thing sold. The seller is considered responsible for these defects even if he does not know of their existence. Therefore, this provision may also be applied to goods that are subject to import, export or manufacturing bans, as well as in cases where the purchased product is damaged. Because not only the material but also the legal dimension of the concept of defect is within the scope of the seller's responsibility.

What Is The Solution?

Article 227 of the Code of Obligations gives the buyer several optional rights in this case. The buyer may exercise the right to rescind the contract by declaring that he/she is ready to return the thing sold, in which case both parties are released from their debts and what has been given will be returned. The buyer may request a discount on the sale price by keeping the thing sold, may request the seller to repair the thing sold free of charge, or may request the replacement of the thing sold with a defect-free similar thing. If the seller is acting for commercial or professional purposes, the Law on the Protection of Consumers may also be applied since this will be considered a consumer transaction. Pursuant to Article 11/2 of the TKHK, the buyer may exercise the free replacement and repair rights against the manufacturer and importer of the goods as well as the seller.

How Does The Judical Remedy Work?

According to both the Code of Obligations and the prevailing opinion in the doctrine, since the above-mentioned optional rights of the buyer are accepted as rights that give rise to novelty, the desired result is realized when the declaration of will reaches the seller. In other words, with the acceptance that it is not necessary to resort to litigation, the decision of the court in case of any dispute will be in the nature of a declaratory judgment. However, there are also minority opinions and supporters who argue that the court's constructive judgment is necessary.

In order for the seller to be liable for defects, the buyer must have fulfilled the burden of inspection and notification. First of all, as regulated in Article 222 of the Code of Obligations, the seller is not liable for defects known to the buyer at the time of the establishment of the sales contract. The seller is only liable for defects that the buyer does not know but can recognize by adequate inspection if the seller has guaranteed that there is no such defect. Pursuant to Article 223 regulating the buyer's burden of inspection and notification, if the buyer fails to inspect the thing sold in the ordinary course of business and notify the seller of the defect within a reasonable time, the buyer shall be deemed to have accepted the thing sold in a defective condition and shall lose his optional rights. However, if an ordinary inspection is insufficient to detect the defect and such a hidden defect must be notified to the seller immediately when it is discovered later, otherwise the optional rights are lost again.

In cases where the buyer is a consumer, the application of the CPLPL has a protective effect because, pursuant to Article 10 of the CPL, defects that appear within six months after the delivery of the goods are deemed to have existed on the date of delivery. In other words, the burden of proof that the product is not defective is on the seller, and the buyer does not have any inspection and notification burden in the first six months.

In terms of judicial remedy; within the framework of Article 2 of the Code of Civil Procedure, since the dispute will be related to the right to property in a lawsuit that the buyer will file for the exercise of its optional rights or compensation for its damages, the competent court will be the competent civil court of first instance.

However, pursuant to Article 73 of the special law TKHK, ''Consumer courts are competent in cases related to disputes that may arise from consumer transactions and consumer-oriented practices.'' Pursuant to the reference made in paragraph 4, these cases are subject to simple trial procedure, meaning that the parties cannot file second petitions after the first petitions. In these cases, the consumer court in the place where the consumer is domiciled is also the competent court.

Pursuant to Article 73/A of the CPLPL, “In disputes before the consumer courts, it is a condition of the lawsuit that the mediator is applied before the lawsuit is filed. Lawsuits filed without applying to the mediator will be dismissed procedurally on the grounds of lack of cause of action.

According to Article 74 of the LPPD, consumers may file a lawsuit for the determination that a series of goods sold are defective, for the suspension and recall of the sale, and for the elimination of the defect. The consumer's rights to sue and compensation for the goods collected and destroyed are reserved. In addition, according to Article 68, which is a special provision, application to consumer arbitration committees is mandatory in disputes with a value of less than 30,000 TL. The decisions of the consumer arbitration committee are binding on the parties, but the parties may appeal within 15 days from the notification of the decision to the consumer arbitration committee or to the consumer court in the place where the consumer is located. The Ministry of Customs and Trade shall cover the notification and expert witness fees for the decisions of the arbitration committee against the consumer.