Definition of Defective Goods
The definition of defective goods is set forth in Article 8 of Law No. 6502. Accordingly; a defective good (ayıplı mal) is a good which, at the time of delivery to the consumer, is contrary to the contract due to its failure to conform to the sample or model agreed upon by the parties, or due to its failure to possess the characteristics it should objectively have.
Pursuant to the aforementioned article, goods are also considered defective if they: (a) do not possess one or more of the features stated in their packaging, labels, introduction and user manuals, internet environment, or advertisements and announcements; (b) are contrary to the quality declared by the seller or determined in its technical regulation; (c) do not meet the intended use of equivalent goods; (d) contain material, legal, or economic deficiencies that reduce or eliminate the benefits reasonably expected by the consumer.
Regarding delivery and installation, the subject article provides the following regulation:
“Failure to deliver the good subject to the contract within the period agreed upon in the contract, or improper installation in cases where the installation is carried out by the seller or under their responsibility, shall be evaluated as performance contrary to the contract. In cases where the installation of the good is intended to be performed by the consumer, performance contrary to the contract occurs if the installation is performed incorrectly due to an error or deficiency in the installation instructions.”
Liability for Defective Goods
Article 9 of Law No. 6502 concerns the liability for defective goods. The first paragraph of the article states that the seller is obliged to deliver the good to the consumer in accordance with the sales contract. The second paragraph provides an opportunity for the seller to avoid liability. Accordingly, if the seller proves that they were unaware of the statements made through advertisements not originating from them and could not reasonably be expected to be aware, or that the content of the statement was corrected at the time of concluding the sales contract, or that the decision to conclude the sales contract was not in a causal relationship with this statement, they shall not be bound by the content of the statement.
Burden of Proof
Pursuant to Article 10, titled “Burden of Proof” (ispat yükü), defects that appear within 6 months from the date of delivery are presumed to have existed at the time of delivery. Therefore, in this case, the burden of proving that the good is not defective lies with the seller.
It is regulated that if the consumer was aware of the defect at the time the contract was concluded or was reasonably expected to be aware, there shall be no non-conformity to the contract. The consumer’s elective rights against defects other than these are reserved.
The third paragraph of the aforementioned article stipulates that an explanatory label regarding the defect of the good must be placed on the defective good offered for sale or on its packaging by the manufacturer, importer, or seller in a manner that the consumer can easily read. It is mandatory to give this label to the consumer or clearly show the explanatory information regarding the defect on the invoice, receipt, or sales document given to the consumer. However, pursuant to the subject article, products that do not comply with their technical regulations cannot be placed on the market in any way.
Elective Rights of the Consumer
The elective rights of the consumer are listed in Article 11. Accordingly, if it is understood that the good is defective, the consumer has 4 elective rights. The elective rights granted to the consumer are as follows:
Rescission of the contract (sözleşmeden dönme) by declaring readiness to return the sold item,
Retaining the sold item and requesting a discount on the sales price in proportion to the defect,
Requesting free-of-charge repair of the sold item at the seller’s expense, provided it does not require excessive cost,
If possible, requesting the replacement of the sold item with a non-defective duplicate.
The seller is obliged to fulfill the request preferred by the consumer.
Pursuant to the second paragraph of the article, the rights of free-of-charge repair or replacement with a non-defective duplicate can also be exercised against the manufacturer or importer. The seller, manufacturer, and importer are jointly and severally liable (müteselsilen sorumlu) for the fulfillment of these rights. However, the manufacturer or importer may avoid liability if they prove that the defect arose after the good was placed on the market by them.
In cases where free-of-charge repair or replacement with a non-defective duplicate would bring disproportionate difficulties for the seller, the consumer may use the right to rescind the contract or the right to a discount in proportion to the defect.
The period for fulfilling the request for free-of-charge repair or replacement is a maximum of 30 business days, and for residential and vacation real estate, 60 business days from the date the request is directed to the seller, manufacturer, or importer.
Statute of Limitations
The statute of limitations is handled in Article 12. Unless a longer period is determined in the laws or the contract between the parties, liability for defective goods is subject to a 2-year statute of limitations (zamanaşımı) from the date of delivery to the consumer, even if the defect appears later. This period is 5 years from the date of delivery for residential or vacation real estate.
In second-hand sales, the seller’s liability cannot be less than one year for goods and three years for residential or vacation real estate. However, the statute of limitations shall not apply if the defect has been concealed through gross negligence (ağır kusur) or fraud (hile).