As explained in Article 8 of the Law No. 6502 on the Protection of Consumers, the concept of defective goods is the goods that are contrary to the contract due to the fact that they do not conform to the sample or model agreed by the parties at the time of delivery to the consumer or do not have the characteristics that they should objectively have.
- Does not carry one or more of the features specified in its packaging, label, introduction and user manual, internet portal or advertisements and announcements
- Contrary to the quality declared by the seller or determined in its technical regulation
- Does not meet the intended use of equivalent goods
- Goods that contain material, legal or economic deficiencies that reduce or eliminate the benefits that the consumer reasonably expects are also considered defective.
Turkish Code of Obligations ARTICLE 219-
The seller is liable to the buyer for the absence of the qualities declared in any way, as well as for the presence of material, legal or economic defects that are contrary to the quality or quantity affecting the quality, that eliminate or significantly reduce its value in terms of its intended use and the benefits that the buyer expects from it.
The seller is liable for these defects even if he did not know of their existence.
In other words, as can be understood, defect occurs in two ways according to the Turkish Code of Obligations;
- If the qualities declared to the buyer in any way are not present in the goods sold
- Deficiency in the important characteristics of the goods
Liability of the Seller for Defects:
The seller is obliged to deliver the goods to the consumer in accordance with the sales contract.
In order for the seller to be held liable for the defect, the defect must not be noticed by the buyer at the time of delivery and must not be noticeable. In addition, the defect must be present at the time of delivery or the defect must appear within 6 months after delivery.
Consumer’s Optional Rights in case of Defective Goods:
In the event that the goods are defective and the above conditions are met, the consumer has certain optional rights.
The important point here is that the consumer party has the right to use only one of these rights and cannot make a request in alternating ways.
Optional rights of the consumer ARTICLE 11-
- The consumer if it is understood that the goods are defective;
- Returning from the contract by declaring that you are ready to return the goods,
- Retaining the goods and asking for a discount from the sale price in proportion to the defect,
- Request free of charge repair of the goods sold at the seller’s expense, unless it requires an excessive expense,
- If possible, the consumer may use one of the optional rights to request the replacement of the sold product with a defect-free equivalent. The seller is obliged to fulfill this request preferred by the consumer.
- The rights of free repair or replacement of the goods with a defect-free equivalent may also be exercised against the manufacturer or importer. The seller, manufacturer and importer are jointly and severally liable for the fulfillment of the rights in this paragraph. The manufacturer or importer shall not be held liable if he proves that the defect arose after the goods were put on the market by him.
- In the event that free repair or replacement of the goods with a defect-free equivalent will bring disproportionate difficulties for the seller, the consumer may exercise one of the rights to return from the contract or discount the price in proportion to the defect. In determining the disproportionality, issues such as the defect-free value of the goods, the importance of the defect and whether applying for other optional rights will pose a problem for the consumer are taken into consideration.
- In the event that one of the rights of free repair or replacement of the goods with a defect-free equivalent is chosen, this request must be fulfilled within a maximum of thirty working days from the date of addressing the seller, manufacturer or importer, and within sixty working days for residential and holiday immovables. However, the consumer’s free repair request for the goods included in the list attached to the regulation issued pursuant to Article 58 of this Law shall be fulfilled within the maximum repair period specified in the regulation. Otherwise, the consumer is free to use other optional rights.
- In cases where the consumer chooses the right to return from the contract or to discount the price at the rate of defect, the entire price paid or the amount of the discount made from the price shall be returned to the consumer immediately.
- All costs arising from the exercise of the optional rights shall be borne by the party that fulfills the right chosen by the consumer. The consumer may also claim compensation in accordance with the provisions of the Turkish Code of Obligations dated 11/1/2011 and numbered 6098 together with one of these optional rights.
The consumer is obliged to notify the seller that he/she has exercised one of the above optional rights and the seller is obliged to fulfill whichever optional right the consumer has exercised.
Although the Consumer Law does not provide any information about the period of time, the seller must be notified within an appropriate period that will not contradict the rule of honesty.
If the seller fails to fulfill its obligation even though it is under an obligation to fulfill it, the consumer party should take legal action.
Where to Apply for Defective Goods?
- District consumer arbitration committee in consumer disputes with a value below 10.280₺,
- The provincial consumer arbitration committee is in charge of consumer disputes with a value above 10.280₺ and below 15.430₺.
- In consumer disputes with a value over 15.430₺, the consumer court is in charge and can be applied directly to the consumer courts.
In consumer disputes within the jurisdiction of the consumer court, mediation is foreseen as a condition of litigation.
If the parties cannot reach an agreement at the end of the mandatory mediation process, a lawsuit may be filed.
What is the Statute of Limitations for Defective Goods?
- If there is an open or hidden defect in the defective goods, the limitation period is 2 years from the date of delivery and this period can be extended by contract.
- 5 years in case of defect in immovable property for residential or holiday purposes
- These periods are for the exercise of optional rights
- In second-hand sales, the period of responsibility for defective goods is 1 year.
- For second-hand residential or vacation properties, this period is 3 years.
- The statute of limitations for compensation of damages arising from defects is 10 years in accordance with the general provisions of the Code of Obligations.
- If the defect is concealed or in case of gross negligence, the statute of limitations does not apply.
- These periods are for the exercise of optional rights.
Proof of Shame:
Burden of proof ARTICLE 10-
- Defects that appear within six months from the date of delivery are deemed to exist on the date of delivery. In this case, the seller is responsible for proving that the goods are not defective. This presumption shall not apply if it is incompatible with the nature of the goods or the defect.
- In cases where the consumer is aware or expected to be aware of the defect at the time of the conclusion of the contract, there is no breach of contract. The consumer’s optional rights against defects other than these are reserved.
- A label containing explanatory information about the defect of the goods shall be placed on the defective goods to be offered for sale or on the packaging, in a way that the manufacturer, importer or seller can easily read by the consumer. This label must be given to the consumer or the explanatory information regarding the defect must be clearly shown on the invoice, receipt or sales document given to the consumer.
- Products that do not comply with the technical regulations cannot be placed on the market in any way. The provisions of the Law on the Preparation and Implementation of Technical Legislation on Products and other relevant legislation shall apply to these products.