What is the scope of the Consumer Law?

SCOPE OF THE CONSUMER LAW -2-

QUESTION: WHAT IS THE SCOPE OF THE CONSUMER LAW?

The scope of the law is regulated in Article 2 of Law No. 6502 as follows: “Scope: This Law covers all types of consumer transactions and practices directed at consumers.”

The scope of the consumer law is limited to two concepts.

1- Consumer transaction.

2- Defective goods.

3- Defective services.

QUESTION: WHAT IS A CONSUMER TRANSACTION?

The scope of the law consists of defective goods and services that are the subject of sales that qualify as consumer transactions.

Problems frequently arise between consumers and sellers regarding the quality, form, functionality of products, and their delivery in a manner different from what was advertised. Consumer sales are a type of “sales contract.” All sales contracts where one of the parties is a consumer and the other is a seller (a natural or legal person) acting for commercial or professional purposes are considered consumer transactions. Consumer transactions have the legal nature of a sales contract. The provisions of the Law on the Protection of the Consumer (“TKHK”) apply to consumer transactions. If the Law does not contain a provision covering the specific situation, the provisions of the Turkish Code of Obligations (“TBK”) and other general laws apply.

Within the scope of this article, defective goods that are the subject of sales qualifying as consumer transactions and the remedies available as a result of defects will be addressed under the TKHK. Subsequently, the right of withdrawal, another facility regulated under the TKHK, will be compared with the situation arising from a defect. In addition, the procedure for the execution of the return of defective goods, which has caused disputes in practice, will be examined.

What is a Consumer? What Does a Consumer Transaction Mean?

The consumer court is responsible for hearing disputes where at least one of the parties is a “consumer.” All lawsuits related to consumer transactions are heard in consumer courts. The concepts of “consumer” and “consumer transaction” are explained in Law No. 6502 as follows:

? Consumer: A consumer is any natural or legal person acting for non-commercial or non-professional purposes. Law No. 6502 protects the person who purchases a ready-made good or service and uses or consumes it in their daily life. For example, when a person buys a razor to shave at home, they are considered a consumer. When they buy the same razor to sell in their market, they are not a consumer because they are acting for commercial purposes.

? Consumer Transaction: For a transaction to be accepted as a consumer transaction, one of the parties to the legal relationship must be a consumer, and the other party must be a seller, service provider, or a natural or legal person acting on their behalf. It is a condition that the transaction carried out between the parties is not made for professional or commercial purposes from the consumer's perspective. A consumer transaction refers to all kinds of contracts and legal transactions established between consumers and those acting for commercial or professional purposes, including public legal entities, or those acting on their behalf or account in the goods or services markets.

? A. CONSUMER TRANSACTION

? The definition of a consumer transaction is located in clause (l) of the first paragraph of Article 3, titled “Definitions,” of the TKHK No. 6502. Accordingly, a consumer transaction refers to all kinds of contracts and legal transactions, including works, carriage, brokerage, insurance, mandate, banking, and similar contracts, established between consumers and natural or legal persons acting for commercial or professional purposes, including public legal entities, or those acting on their behalf or account in the goods or services markets. As can be understood from this definition, various elements must be present for a transaction to be accepted as a consumer transaction and for the resulting dispute to be resolved in this context. Accordingly, for a transaction to be a consumer transaction:

I. The Concept of Defective Goods

“A defect is a deficiency or flaw that appears in the good subject to sale and prevents the consumer from benefiting from that good as required [2]. Under the TKHK, a defective good is, in short, a product that does not possess the features promised to the consumer. If a mug is ordered and it arrives broken, this is within the scope of a defect; likewise, the ordered mug arriving in a different color is an example of a defect in quality.

A definition regarding defective goods is also provided in Article 8 of the Law;

“It is a good that is contrary to the contract because it does not conform to the sample or model agreed upon by the parties at the time of delivery to the consumer, or because it does not possess the features it should objectively have.” [3]

At this point, a defective good refers to the absence of qualities in a good that the consumer took into account and believed in when purchasing, or the absence of a feature that should objectively be present in that type of good. On the other hand, features contrary to those specified on the product's packaging, label, or promotional materials, or the failure to possess these features, constitute a defect, while goods containing material, legal, or economic deficiencies that reduce or eliminate reasonably expected benefits are also accepted as defective.

At this point, a material defect is a defect that negatively affects, deviates from, or impairs the physical, chemical, and technical existence and condition of the good [4]. Indeed, if the delivered product does not match the thing sold in terms of appearance, or if it cannot provide the expected benefit due to the absence of one of these qualities, there is a material defect. An example of this would be a pen delivered broken as a result of an order.

If we consider an economic defect; it is obvious that every good has a certain income-generating or productivity capacity. This capacity will primarily constitute the economic quality of the good in question. If the sold good cannot provide the necessary efficiency or income under normal conditions due to its features, the existence of an economic defect will be mentioned here. A vehicle consuming more fuel than stated in its advertisement or user manual [5] is an example of this.

A legal defect refers to restrictions arising from public law that prevent the consumer from benefiting from the sold product or disposing of it. In this case, since the sold product does not comply with legal provisions, the relevant norms will prevent the buyer from fully benefiting from the thing. If the item sold as an export good does not have a certificate of origin, there is a legal defect [6]. On the other hand, if the good is under attachment at the time of sale [7], there is also a legal defect [8]. The existence of a superior right of a third party over the sold product is not treated as a legal defect but as a problem within the scope of liability for eviction.

Indeed, the absence of features specified in the packaging, label, introduction, and user manual; the absence of features specified in advertisements, internet portals, and announcements; the failure to meet the intended use of equivalent goods; and contradictions with the quality reported by the seller or determined in its technical regulation are treated as presumptions of defect. The existence of one or several of these criteria constitutes a presumption that the good or service is defective within the scope of TKHK Art. 8/2.

Furthermore, defects are subject to various other classifications. These classifications help us determine how to act in different situations. The first of these is the distinction between essential defect and non-essential defect. If there is a situation that completely or partially eliminates the usability of the good, the existence of an essential defect is mentioned. However, if such a situation does not exist, the defect is a non-essential defect. Only in cases of essential defects will the provisions of liability arising from the defect come into play [9]. This distinction made under the TBK is also applicable in consumer disputes.

At the same time, a defect can also be subject to the distinction between significant and insignificant defects. It is seen that under the TBK, the use of the right of rescission among optional rights is permitted only in the context of significant defects.

Again, a defect can be divided into two under the heading of apparent defect and non-apparent defect. An apparent defect refers to a situation where the buyer directly notices a flaw that is obvious with the five senses. In contrast, some defects cannot be noticed; such a defect is handled under the name of non-apparent defect. In short, an apparent defect is a defect that the buyer knows or could have known. In cases of apparent defects, the buyer naturally does not have the right to resort to liability arising from the defect. However, the seller can be held responsible for non-apparent defects within the scope of liability arising from the defect [10]. It is logical to handle the relevant situation in the same way for consumers.

Another important point is the distinction between open and hidden defects. Non-apparent defects can be divided into open and hidden defects. An open defect is a term used when there are defects that can be seen and noticed as a result of an inspection performed on the good after the sales relationship is established and the good is received [11]. At this point, for an open defect to exist, it must be noticed after an ordinary inspection activity. In the case of hidden defects, an ordinary inspection is not sufficient. While an open defect refers to defects that can be noticed by inspection, hidden defects cover defects that will emerge with use. Hidden defects only emerge over time and with use. An example of an open defect is a bag that can be understood to have a hole the moment it is received.

However, an example within the scope of a hidden defect frequently encountered in practice is the case where it is understood after a period of use that certain parts in cars have been produced in a way that does not provide the necessary technical adequacy. An exceptional case is the seller deceiving the buyer by making it appear as if a quality that is not possessed exists, and intentionally violating the duty of disclosure towards the buyer with this defect they created [12]. In this case, there is a hidden defect, and in the case of a hidden defect, the statute of limitations provided for the notification period granted to the buyer will be eliminated. It should be said that if these emerge within the statute of limitations for liability arising from the defect, one can resort to liability arising from the defect, provided that notification is made immediately. Indeed, the provision of TKHK Art. 12/3 contains a regulation parallel to this. However, it should not be forgotten that knowingly taking delivery of the sold product with its defects or accepting the good despite the deficiency will mean waiving the rights arising from the defect.

II. Defective Performance

Defective performance, like defective goods, refers to the sold good not possessing the necessary qualities promised by the seller or required for the purpose of purchasing the good. In defective performance, although the delivery of the good agreed upon in the contract is in question, the features guaranteed by the seller or the necessary qualities that should be present in that good are missing.

DEFECTIVE SERVICE

QUESTION: WHAT IS A DEFECTIVE SERVICE? WHAT ARE THE SITUATIONS CONSIDERED DEFECTIVE SERVICE?

Defective service is defined in Article 13 of the Law on the Protection of the Consumer. Accordingly, a service that is contrary to the contract because it does not start within the time specified in the contract or does not possess the objective features agreed upon by the parties is defined as a defective service. Services that do not possess the features reported by the service provider, or those included in the internet portal or advertisements and announcements, or that contain material, legal, or economic deficiencies that reduce or eliminate their value in terms of the purpose of use or the benefits the consumer reasonably expects from them, are defective.

1- Defective service is the failure of the service to start within the time specified in the contract.

2- It is a service that is not in accordance with the agreed contract and does not possess the features it should objectively have.

3- A defective service must be of the quality required by the purpose, scope, and application principles of the contract. The service provider is obliged to perform the service in accordance with the contract.

Services that contain material, legal, or economic deficiencies that reduce or eliminate the benefits we expect from them, which are reported by the service provider or included in the internet portal or advertisements and announcements, are also defective services.

What are the consumer's optional rights regarding defective service?

In cases where the service is performed defectively, the consumer is free to use one of the following rights against the provider:

? Re-performance of the service,

? Free repair of the work resulting from the service,

? Discount from the price in proportion to the defect,

? Rescission of the contract.

The provider is obliged to fulfill this request chosen by the consumer.

If free repair or re-performance of the service would bring disproportionate difficulties for the provider, the consumer cannot use these rights. In determining the disproportion, issues such as the defect-free value of the service, the importance of the defect, and whether resorting to other optional rights would pose a problem for the consumer are taken into account.

In the event that the consumer uses one of the optional rights arising from defective service, how long does it take for this request to be fulfilled?

In cases where the consumer chooses the right of rescission of the contract or a discount from the price in proportion to the defect, the entire price paid or the amount discounted from the price is immediately returned to the consumer.

In cases where free repair or re-performance of the service is chosen, considering the nature of the service and the consumer's purpose of benefiting from this service, this request is fulfilled by the provider within a reasonable time and in a way that will not cause serious problems for the consumer. In any case, this period cannot exceed thirty working days from the date the request is directed to the provider. Otherwise, the consumer is free to use other optional rights.

Who covers the expenses arising from the use of optional rights regarding defective service?

All expenses arising from the use of optional rights are covered by the provider. The consumer may also claim compensation in accordance with the provisions of the Turkish Code of Obligations along with one of these optional rights.

What is the statute of limitations for defective service?

Unless a longer period is determined in the laws or the contract, liability for defective service is subject to a two-year statute of limitations from the date of performance of the service, even if the defect appears later.

If the defect has been hidden by gross negligence or fraud, the statute of limitations provision DOES NOT APPLY.

Service is doing someone's work or doing work that is useful to someone (TDK). Services are largely intangible (not felt by the senses) goods. If they are completely intangible, they are transferred directly from the producer to the user; they cannot be transported, stored, and are generally perishable in nature.

Work done to meet needs under different purposes is called service. Especially on a country basis, service is of great importance for the continuation of life from a social perspective. Among these, the most important are health, security, and transportation services. These services have different dynamics within themselves. Thus, the dynamics they possess represent different characteristics. The obtained characteristics allow the service to be provided more effectively.

CONCLUSION

The very fast sales process will naturally have some hitches. In some cases, consumers may not have enough information about the goods they purchase, and even if they do, they may not know what to do when a product that is different from what they expected or damaged reaches them.

For this reason, the facilities that can be resorted to under the TKHK for the protection of the consumer must be well known. A conscious consumer can reduce victimization in the product market and even increase quality. While finishing this article about the scope of the law, it should always be remembered that consumption is a purpose rather than a means. Consumer awareness starts from this point.