The Consumer Protection Law No. 6502 regulates the seller’s liability arising from defective goods. According to the law, the seller is obligated to deliver the goods to the consumer in accordance with the sales contract.
The seller is legally presumed to have known that any defects appearing within six months of the delivery date to the consumer were present at the time of delivery. In this case, the burden of proving that the goods are not defective is legally imposed on the seller. If the seller proves that the consumer knew or should have known about the defect at the time the contract was concluded, there is no breach of contract. Otherwise, the consumer’s discretionary rights against the defect are reserved.
If the goods sold by the seller to the consumer are found to be defective, the consumer has the right to withdraw from the contract, request a discount on the sale price proportional to the defect, request that the goods be repaired free of charge by the seller, provided that this does not involve excessive expense, and, if possible, request that the goods be replaced with a non-defective item, by declaring that they are prepared to return the goods. The consumer may exercise one of these optional rights. Th seller is obliged to fulfill the consumer’s chosen option in accordance with the rules of good faith and fair dealing, regardless of which option the consumer has chosen.
The statute of limitations regarding the seller’s liability to the holder is also regulated by law. Article 12 of the TKHK contains the following provisions regarding the statute of limitations.
“(1) If liability does not arise due to defective goods after the expiration of a longer period specified by law or in the contract between the parties, even if apparent to the consumer, the goods are subject to a two-year limitation period from the date of delivery. This period is five years from the date of delivery for real estate used for residential or vacation purposes.
(2) Except for the third paragraph of Article 10 of this Law, the seller’s liability for defective goods in second-hand sales shall not be less than one year, and in sales of residential or vacation real estate, it shall not be less than three years.
(3) If the defect is concealed due to shame, obvious fault, or fraud, the statute of limitations provisions shall not apply.”
It is clear that in all provisions regarding the statute of limitations in Article 12 of the TKHK, the seller’s liability period for damages in the sale of residential or vacation real estate is longer than for other goods. However, defects concealed by the seller’s gross negligence or fraud are excluded from this distinction. If the goods sold have been concealed by the seller through a defect, serious defect, or fraud, regardless of its nature, the seller cannot benefit from the statute of limitations provisions in this case. No matter how much time has passed since the sale, the consumer can always exercise their discretionary rights. The seller has unlimited liability for damages. This legal provision, clearly stipulated in the TKHK, is also applied to specific disputes by the settled case law of the Court of Cassation.
Court of Cassation 13th Civil Chamber 2015/22960 E 2016/15328 K dated 16.6.2016;Article 4, Paragraph 2 of Law No. 4077 states that the consumer is obligated to notify the seller of any obvious defects within thirty days of the delivery date of the goods. In this case, the consumer has the right to withdraw from the contract, including requesting a refund, replacement of the goods with a defect-free item, a price reduction, or free repair proportional to the defect. The seller is obliged to fulfill the consumer’s preferred request.
The Consumer Protection Law does not contain any provisions regarding the time limit for notifying the seller of hidden defects. Indeed, Article 30 of Law No. 4077 on the Protection of Consumers, in accordance with Article 198 of the Turkish Code of Obligations No. 818, stipulates that in cases where this law does not contain provisions, the dispute shall be resolved in accordance with the general provisions, and therefore, this article shall apply. Therefore, hidden defects must be reported immediately (as soon as possible in accordance with the principle of good faith) within the limitation period. After the lawsuit is filed and the defect is discovered, the statement of an average consumer should be taken into account, regardless of whether the defect is apparent or hidden.
If this is neglected, the buyer shall be deemed to have accepted the seller with this defect.4 Article 4, paragraph 4 of Law No. 4077 stipulates that the statute of limitations period for residential property sales is five years. If the defect is a serious defect or has been concealed by fraud, the statute of limitations shall not apply, and the lawsuit shall be deemed to have been filed and concluded accordingly.