DEFECTIVE GOODS AND CONSUMER LAW
• What are defective goods?
Defective goods and consumer rights are expressed in the Law No. 6502 on the Protection of the Consumer. According to this law, defective goods are goods that are contrary to the model agreed upon by the parties or that do not comply with the contract between the parties because they do not have the required qualifications.
According to Article 8 of the same law, the following goods are defective as well ;
- do not carry one or more of the features in its packaging, label, introduction and user manual, internet portal or advertisements and advertisements,
- are contrary to the quality declared by the seller or determined in its technical regulation,
- do not meet the intended use of the equivalent goods,
- contain material, legal or economic deficiencies that reduce or eliminate the benefits reasonably expected by the consumer.
• Material, Economic and Legal defects
There is material defect when a good is torn, broken, smashed, spoiled, or in case of physical damage.
Economic defect is the situation in which the consumer cannot provide the income or efficiency that he or she expects to obtain from what is sold under normal conditions.
A legal defect, on the other hand, is a defect that limits the consumer’s right to benefit from what is sold and to dispose of it. For example, the fact that the land purchased for construction purposes appears as a green area in the zoning plan is an example of legal defect. Legal defects arise from prohibitions and restrictions originating from public law.
• What is the seller’s responsibility for defective goods?
Article 9/1 of the above mentioned law holds the seller responsible for the goods subject to sale agreed in the contract and the agreed delivery method of the said goods; “The seller is obliged to deliver the goods to the consumer in accordance with the sales contract”.
According to the provisions of the article, the seller will be responsible for the explanations made through advertisement as well. The exception to this rule is the three cases listed in the same article. Accordingly, if the seller proves one of the below mentioned conditions, he will be released from liability. He needs to prove;
- that he is not aware of the statements made through advertising and that he cannot be expected to be aware of it, or
- the content of the disclosure made through advertisement has been corrected at the time of establishment of the sales contract, or
- the decision to establish a sales contract is not in a causal link with the advertisement statement.
• Who bears the burden of proof for the defective goods?
Article 10/1 of the same law states that “Defects that appear within six months from the date of delivery are deemed to exist at the date of delivery. In this case, the proof that the goods are not defective belongs to the seller”.
Further, in cases where the consumer is aware of the defect or is expected to be aware of the defect at the date of conclusion of the contract, there is no breach of the contract. Consumer’s optional rights are reserved against defects other than these. (Article 10/2)
• What are the consumer’s optional rights against defective goods?
In the event that the seller delivers defective goods, both the Turkish Code of Obligations and the Law on the Protection of the Consumer give the consumer optional rights.
Along with one of these optional rights, the consumer also has the right to demand compensation in accordance with the provisions of the Turkish Code of Obligations.
- The consumer can choose from 4 options;
- Renunciation of the purchase agreement
- Discount on the purchase price
- Exchange the defective good with an equivalent good
In the event that the consumer chooses one of the above options, the seller is obliged to meet the consumer’s demand. As ALFA Law and Consultancy with our experts in consumer law, we can help you by making the right choice.
Even in the event that a service is provided in a defective manner, the consumer has rights that he / she can use against the service provider. The consumer has also the choice between above mentioned 4 options. In case the consumer prefers one of the above options, the service provider is obliged to meet the consumer’s demand.
• What is the period of limitation to use optional rights in case of defective goods?
Unless a longer period is determined in the law or in the contract between the parties, the liability for the defective goods is subject to a two-year period of limitations from the date of delivery of the goods to the consumer, even if the defect arose later. This period is five years from the date of delivery of the immovable property for residential or vacation purposes. (Article 12)
In the event that the said periods are missed, it will not be possible for the consumer to exercise their optional rights regarding the defective goods. However, there will be no limitation period if in case of a defect that was known by the seller and hidden before the sale.
• Consumer Arbitration Commission
If the value of the dispute in question is less than the amount specified in the legislation, the consumer must first appeal to the Consumer Arbitration Commission. Direct access to the Consumer Court is not possible in this case. We can support our clients with the application and the follow-up of the arbitration.
• Mediation as a condition of litigation
With a few exceptions mentioned in the law, anyone who wants to file a lawsuit before the Consumer Court must first appeal to mediation since 22.07.2020. This is an obligation recently introduced to reduce the workload of the courts.
Claims that the parties can freely take part in and that include a certain amount of compensation and receivables are subject to compulsory mediation. Some examples of these claims are;
– Compensation and Receivables Arising from the Delivery of Defective and Defective Real Estate
– Compensation and Receivables from Defective and Defective Products and Services
– Compensation and Receivables Based on the Power of Attorney (Attorneyship) Contract
– Medical Malpractice Compensation and Claims
– Contract of Works ( Furniture Production on Order, Garden Arrangement )
– Transport Agreement
– Brokerage Contracts
– Real Estate Brokerage Agreement
– Insurance Contract
– Power of Attorney Agreement
– Banking Agreements
– Internet, banking and similar contracts
You can count on ALFA Law and Consultancy and our professionals for all your disputes related to Consumer Law. You will be assisted by our experienced lawyers during the mediation procedure as well as during the court case. Antalya lawyer Ceren Topcu İncetaban and her Antalya Law Firm existing of experts in consumer law can assist you during this procedure.
Contact us for comprehensive legal advice in your own language.