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Liability of the Importer and/or Manufacturer to the Consumer for Defective Goods

Writer's picture: Cihan BOLATCihan BOLAT

THE LIABILITY OF THE IMPORTER AND/OR THE MANUFACTURER TO THE CONSUMER FOR DEFECTIVE GOODS

Today, products produced in different countries come to our country in various ways and these products reach the consumer by passing through certain market actors in the process of reaching the consumer. Therefore, in such cases, we will talk about which legal remedies we can apply as a result of the defective goods purchased and who and what kind of responsibility arises due to defective goods. RESPONSIBILITY TO CONSUMER DUE TO DEFECTIVE GOODS

tornavida, ingiliz anahtarları ve benzeri tamirat araçları

Article 11 of the Consumer Law No. 6502 grants certain optional rights to the consumer in case the goods are defective. If we list the rights granted to the consumer


  1. Revocation of the contract and refund

  2. Replacement of the goods with a defect-free equivalent

  3. Reduction in the price in proportion to the defect

  4. Free repair


is in the form. In the event that the goods are defective, according to the consumer law No. 6502, the consumer can use any of these 4 optional rights.


sözleşme imzalayan bir insan

The persons responsible for the exercise of the optional rights will vary according to the optional right used. According to the Consumer Law No. 6502, ‘’Return from the contract and refund of the price‘’ and ‘’The right to discount the price at the rate of defect‘’, which are described as monetary claims, can only be asserted against the seller.


Non-monetary claims such as ‘’Replacement of the goods with a defect-free equivalent‘’ and ‘’Free Repair‘’ can be asserted against the manufacturer and importer together with the seller. The seller, manufacturer and importer shall be jointly and severally liable for the optional rights under the heading of non-monetary claims.


Since the optional rights are novelty rights, when one of the optional rights is used, as a rule, other rights granted by the legislator cannot be used. There is an exception to this situation and it is stated in Article 56/3 of the Consumer Law No. 6502. According to the provision of the article, the consumer may use one of the above-mentioned optional rights in cases where the goods malfunction again within the warranty period after the consumer has exercised his right to free repair as a result of the defect of the goods, or if the maximum time required for repair is exceeded or it is understood that it is not possible to repair it. If the consumer's request is not fulfilled, the manufacturer, importer and seller are jointly and severally liable for the use of other optional rights.


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THE LIABILITY OF THE IMPORTER AND/OR THE MANUFACTURER AGAINST THE CONSUMER DUE TO DEFECTIVE GOODS CONCLUSION

As a result, to give an example; In the event that the phone is defective as a result of the purchase of brand A phone from B market, the consumer will use one of the 4 optional rights listed in the law. When the exceptional situation in Article 56/3 of the Law No. 6502 is not realised in the use of one of the rights of ‘Discount in the price at the rate of defect’ and ‘Return from the contract and return of the price’ listed in the monetary claims section, only the B market, which is the seller, will be responsible, while the manufacturer A company and the seller B market will be jointly responsible for the use of one of the rights of ‘free repair’ and ‘replacement of the goods with a defect-free equivalent’.

RELEVANT JUDICIAL COURT DECISIONS

 
13th Civil Chamber 2018/5828 E. , 2019/1325 K.
 

COURT :Civil Court of First Instance (As Consumer Court)



At the end of the trial of the objection case between the parties, it was requested by the Chief Public Prosecutor's Office of the Court of Cassation to overturn the judgement given for the dismissal of the case for the reasons written in the judgement, and after it was decided to conduct the examination on the documents, the file was examined and the necessity was discussed and considered.


DECISION


The plaintiff company's attorney claimed that the ... brand mobile phone purchased by the defendant consumer did not recognise the sim card placed on the grounds that the defendant consumer did not recognise the sim card, and that the Consumer Arbitration Committee decided to refund the product price to the defendant consumer, claiming that the client company is the importer and the optional right regarding the return of the product price should be directed to the seller; Karaman Provincial Consumer Arbitration Committee's decision dated 13.02.2017 and numbered 47 was examined on appeal and requested a decision to be cancelled.

The defendant consumer requested the dismissal of the lawsuit.

The court decided to dismiss the case on the grounds that the sim card reading error is not a problem caused by the user and that the product is defective; the judgement, which is final in terms of amount, was appealed by the Supreme Court of Appeals Chief Public Prosecutor's Office for the benefit of the law.

The dispute is about whether the right of return from the contract can be directed to the importer company in cases where the goods malfunction again within the warranty period following the use of the right to repair due to defect, or the maximum time required for repair is exceeded or it is understood that repair is not possible. In Article 11/1 of the Law No. 6502 on the Protection of the Consumer, the consumer's optional rights that the consumer can use in case it is understood that the goods are defective are listed and it is accepted that the consumer can use one of these optional rights and the seller is obliged to fulfil this request preferred by the consumer. In Article 11/2; ‘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 fulfilment of the rights in this paragraph.’ and the optional rights that can be used against the manufacturer and importer are shown. However, Article 11/2 of the TPL should be evaluated together with Article 56 of the same Law. In Article 56/3 of the TPL; ‘If the consumer has used the right to repair from the optional rights specified in Article 11 of this Law, the consumer may use other optional rights specified in Article 11 in case the goods fail again within the warranty period or the maximum time required for repair exceeds or it is understood that repair is not possible. The seller cannot reject the consumer's request. In the event that this request is not fulfilled, the seller, the manufacturer and the importer are jointly and severally liable.’ and it is regulated that the manufacturer and the importer will also be responsible for the other optional rights of the consumer who uses the right to repair. On the other hand, Article 60 of the Turkish Code of Obligations (TCO) No. 6098 states that ‘If the liability of a person can be based on more than one cause, the judge shall decide according to the cause of liability that provides the best remedy to the injured party, unless the injured party requests otherwise or unless otherwise stipulated by law. ‘In the light of all these explanations and legal regulations, in the light of all these explanations and legal regulations, when the concrete case is examined, in the event that the goods malfunction again within the warranty period following the exercise of the right to repair, the consumer, in addition to the optional rights specified in Article 11 of the TPL, considering the regulation of Article 60 of the TCO, may also claim other optional rights regarding the return from the contract based on the mandatory warranty certificate and the refund of the price within the scope of Article 56 of the TPL, since it is in favour of the consumer. In other words, the consumer may jointly and severally claim the price of the product that has deteriorated despite the repair from the seller, manufacturer and importer. As such, the appeal request of the Chief Public Prosecutor's Office of the Court of Appeal for the benefit of the law should be rejected.


CONCLUSION: For the reasons explained above, it was unanimously decided on 06/02/2019 to reject the request of the Chief Public Prosecutor's Office of the Court of Appeal to appeal in the interest of the law.‘’


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‘’3rd Civil Chamber 2022/237 E., 2022/2647 K.‘’
 

COURT : SAKARYA DISTRICT COURT OF JUSTICE 5TH CIVIL CHAMBER


FIRST RANK


COURT : BOLU 1ST PRIMARY LAW (CONSUMER) COURT


As a result of the appeal examination made by the regional court of justice regarding the decision on the acceptance of the case arising from the consumer protection case seen in the first instance court between the parties; Upon the appeal of the decision given for the rejection of the appeal application of the attorneys of the defendants on the merits by the attorneys of the defendants within the time limit; After the decision to accept the petitions of appeal, all the papers in the file were read and considered accordingly:


DECISION OF THE COURT OF APPEAL


The plaintiff ..., in the lawsuit filed in his custody, on behalf of him within the scope of subparagraph 2/a of Article 7 of the SCT Law No. 4760, on 26/02/2015, he purchased a Volkswagen Passat 1. 6 TDI BMT 120 PS Comportline brand 2015 model vehicle, 18 days after 26/02/2015, which is the date of the vehicle's first release to traffic, on 16/03/2015, while cruising in traffic, almost all of the warning lights on the control panel suddenly came on and the steering wheel of the vehicle locked, the malfunction was reported to the authorised service and repaired, then on 16/12/2015, 22/01/2016 and 13/02/2016, the vehicle gave EPC warning, the defendants were informed about the malfunction, on 16/12/2015 and 22/01/2016, the out-of-court authorised service in Düzce province . ..., Otomotiv San. and Tic. A.Ş. on 16/12/2015 and 22/01/2016, the vehicle was delivered to him, the vehicle, which malfunctioned in the same way on 13/02/2016, was delivered to the authorised service, while the vehicle was in the service, the defendants were notified by the Bolu 6th notary public's notice dated 24/02/2016 and numbered 2392 dated 24/02/2016 was sent to the defendants and the defective vehicle was requested to be replaced with a defect-free equivalent and the notice was notified to the defendants, stating that the defendants did not change the vehicle and did not respond to the notice, they demanded and sued for the replacement of the defective car with a defect-free equivalent, and if this is not possible, to decide to refund the vehicle price together with the legal interest to be accrued.

The defendants requested the dismissal of the lawsuit.


The Court of First Instance decided to accept the case; upon the appeal of the decision by the attorneys of the defendants, it was decided to reject the appeal applications on the merits with the decision numbered 2021/918 E. 2021/1056 K. of the 5th Civil Chamber of the Sakarya Regional Court of Justice; and the judgement was appealed by the attorneys of the defendants this time.


The lawsuit is related to the request for the replacement of the defective goods or the refund of the price. At the first instance court, ‘the plaintiff took the vehicle, which was purchased on 26/02/2015, to the service on 16/12/2015 and 10/01/2017 due to the malfunction in the turbo line that occurred later, and the defendant repaired it free of charge, as it is fixed by the expert report, the vehicle was frequently serviced, and when compared with equivalent vehicles, the expected benefit from the vehicle in the case could not be achieved, this defect is in the nature of a manufacturing defect, the vehicle has been taken to the service many times other than this defect, although this defect has been repaired and repaired later, it is understood that the benefit expected by the plaintiff from the vehicle preferred by the plaintiff for safe driving has not been realised, and the importer of the vehicle is also responsible for the defect of the vehicle’, it was decided to accept the lawsuit and to replace the vehicle subject to the lawsuit with a duplicate. Upon the appeal of the decision by the attorneys of the defendants, the Regional Court of Justice decided to reject the appeal applications on the same grounds.

In Article 8 of the Law No. 6502 on the Protection of Consumers, which is in force as of 26/02/2015, the date of the plaintiff's purchase of the vehicle subject to the lawsuit; ‘Defective goods are 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. Goods that do not carry one or more of the features specified in the packaging, label, introduction and user manual, internet portal or advertisements and announcements; that are contrary to the quality notified by the seller or determined in the technical regulation; that do not meet the intended use of the equivalent goods, that contain material, legal or economic deficiencies that reduce or eliminate the benefits that the consumer reasonably expects are also considered defective. ’, Article 9; ‘The seller is obliged to deliver the goods to the consumer in accordance with the sales contract.’, Article 10; ‘Defects that occur within six months from the date of delivery are deemed to exist on the date of delivery. In this case, the proof that the goods are not defective belongs to the seller. This presumption shall not be applied if it is incompatible with the nature of the goods or the defect.’, Article 11 regulating the consumer's optional rights; ’In case it is understood that the goods are defective, the consumer may exercise one of the optional rights to return the contract by notifying that he is ready to return the goods, to keep the goods and to request a discount from the sales price in proportion to the defect, to request free repair of the goods at the seller's expense, if it does not require an excessive expense, to request replacement of the goods with a defect-free equivalent, if possible. The seller is obliged to fulfil this request preferred by the consumer. The right to 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 fulfilment 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 placed on the market by him. 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 fulfilment of the rights in this paragraph. The manufacturer or importer shall not be held liable if he proves that the defect arose after the placing of the goods 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 use 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 value of the goods without defect, 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 evaluation of the concrete dispute according to the legal regulations explained above; the plaintiff consumer claims that the vehicle has broken down more than once, has been repaired in the service, but then breaks down again, and demands the replacement of the vehicle or the refund of the price.

As explained, the consumer may exercise any of his/her optional rights. As it is accepted in the doctrine and practice, the consumer must exercise his/her optional rights unilaterally and with a declaration of will. Once the consumer declares which of these rights he/she chooses, he/she exercises his/her right of choice and cannot change his/her choice. This is because the seller must unconditionally fulfil the stated preference. For this reason, the consumer's right of choice ends with the use of the right of choice once and the preferred right takes its place. Due to this feature, we can say that the consumer's right of choice is one of the constructional rights.

Again, in Article 56/3 of the Law No. 6502, ‘If the consumer has used the right to repair from the optional rights specified in Article 11 of this Law, the consumer may use other optional rights specified in Article 11 in cases where the goods malfunction again within the warranty period or the maximum time required for repair is exceeded or it is understood that repair is not possible. The seller cannot refuse the consumer's request. In case this request is not fulfilled, the seller, manufacturer and importer are jointly and severally liable.’ Likewise, Article 9 of the Warranty Certificate Regulation, which entered into force on 13.06.2014, is also governed by the same provisions.


When the explained legal provisions are evaluated; When the concrete case subject to the lawsuit is considered; Since the plaintiff uses the right to repair according to Article 11 of the Law No. 6502 and exhausts his right of choice in this way and there is no ongoing malfunction in the repaired vehicle, he cannot use another optional right for the replacement of the vehicle or the return of the price. The only exception to this rule is the case where the vehicle still has an ongoing fault as stated above. Because in this case, although the plaintiff has used his right of choice in favour of repair, it will be understood that he does not benefit from this right when the vehicle continues to malfunction. As explained in the expert root and additional reports obtained by the court, as well as in the reasoning of the court decision, it was reported that there was no ongoing malfunction in the vehicle.


In that case, since there is no ongoing malfunction in the vehicle, while the lawsuit should be dismissed, it was not deemed correct to make a written judgement with an erroneous evaluation, and it required a reversal.


Since the decision of the court of first instance has been reversed for the reasons explained above, pursuant to Article 373/1 of the CCP, it has been decided to lift the decision of the regional court of justice regarding the rejection of the appeal against this decision on the merits.


CONCLUSION: For the reasons explained above, in accordance with Article 373/1 of the CCP No. 6100, the decision of the regional court of first instance appealed in accordance with Article 373/1 of the CCP No. 6100 shall be REVERSED, the decision of the court of first instance shall be REVERSED in favour of the defendants in accordance with Article 371 of the same Law, the prepaid appeal fees shall be refunded to the appellants upon request, the file shall be sent to the court of first instance and a copy of the decision shall be sent to the regional court of first instance, it was unanimously decided on 23/03/2022.

 

AUTHOR:

Att. Cihan BOLAT

Contact: 0542 201 73 60

 

 

 

 

 

 

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