What is a Defective Good?

If you purchased a phone and discovered it was faulty upon arriving home, a defective good is in question. From the perspective of Consumer Law, there must first be a seller. A seller refers to a natural or legal person, including public legal entities, who offers goods to consumers through commercial or professional activities. A good, on the other hand, refers to tangible items such as movable property, residential units, or immovable properties for holiday purposes, as well as intangible goods that can be accessed in electronic environments, such as software, images, and audio. In sales of goods between a seller and a consumer, the good is deemed defective if it does not possess the characteristics agreed upon or the characteristics it objectively ought to have. There are three types of defects: material, economic, and legal. A material defect refers to a deficiency in the physical characteristics of the good. An economic defect is a deficiency in the expected economic benefits from the good. A legal defect, on the other hand, is the consumer's inability to exercise the rights arising from their property ownership due to public law.

Goods that do not possess at least one of the characteristics stated on the packaging, label, website, or in advertisements are considered defective. Goods that do not provide or reduce the benefits expected by the consumer; goods that lack the characteristics of similar products, or that possess material, economic, or legal deficiencies, are defective. Goods not delivered within the agreed period or incorrectly assembled are also considered defective. In cases where assembly is left to the consumer, incorrect assembly resulting from deficiencies or errors in the assembly manual also renders the good defective. In Consumer Law, it is not significant whether the defect in the good is a non-material defect. In other words, simple deficiencies are sufficient for a good to be considered defective from the consumer's perspective. A defect may be noticed at the time the contract is concluded or later. If there is an obvious defect that could have been noticed at the time the contract was concluded, we cannot speak of a breach of contract. The defect in the good must exist at the time of delivery. Defects appearing within 6 months from delivery are presumed to have existed at the date of delivery, but proof to the contrary is possible.

A service that does not commence within the period specified in the contract or does not possess the objective characteristics agreed upon by the parties is a defective service. Services that fail to provide at least one of the characteristics declared by the provider, stated on a website, or in advertisements; services that possess material, economic, or legal deficiencies are defective services.

How Does the Seller's Liability for Defects Arise?

Firstly, the good must not possess the characteristics agreed upon or the characteristics it objectively ought to have. That is, if a 32 GB phone was agreed upon, a 16 GB phone should not be sold. Like any phone, it must be capable of making calls. The defect must exist at the time of delivery. A defect appearing within 6 months from delivery is presumed to have existed at the date of delivery. The defect should not be noticeable by the consumer or its detection should not be expected from the consumer. In other words, the defect must not be obvious. In cases where the seller is slightly at fault (negligent), an exclusion of liability agreement may be made. An exclusion of liability agreement made in cases of gross negligence is invalid. If the defect is minor, no exclusion of liability agreement should have been made. Upon the existence of these aforementioned conditions, the seller's liability for the defect arises, and the consumer may exercise their optional rights.

What Are the Consumer's Optional Rights?

If the good is defective, the consumer may: Rescind the contract by declaring their readiness to return the good. Retain the good and demand a reduction in the sales price proportionate to the defect. Demand free repair of the good, at the seller's expense, provided it is not excessive. If possible, demand replacement of the good with a non-defective equivalent. As can be seen, in the event of a defective good, the consumer is offered four optional rights. If the consumer demands any of these, the seller is obliged to fulfill this demand. In addition to these, the consumer has the right to claim compensation. They may claim this right under the general provisions of the Code of Obligations. The seller is liable to pay compensation unless they prove their lack of fault.

What is the Notification Period for Defective Goods?

In cases of defects arising from Consumer Law, there is no obligation to inspect or notify, regardless of whether the defect is patent or latent. Under general provisions, there is an obligation to inspect and notify regarding defects. According to the provisions of the Code of Obligations, the buyer must inspect the good when circumstances permit, and if a defect is found, they must notify the seller within a reasonable time. A reasonable time will be assessed according to the specific circumstances of the case. If notification is not made within a reasonable time, it means the buyer has accepted the good. If there is a defect that cannot be detected by ordinary inspection, the requirement for notification within a reasonable time is not sought, but the seller must be notified immediately upon the discovery of the defect. In commercial sales, if the defect is clearly apparent, the seller must be notified within two days.

How to File a Defective Good Lawsuit?

If the seller fails to provide the optional right demanded by the consumer due to their liability for the defective good, legal action may be pursued. For consumer disputes with a value below 7,550₺ for the year 2021, the district consumer arbitration committee is competent. For consumer disputes with a value above 7,550₺ and below 11,330₺, the provincial consumer arbitration committee is competent. For consumer disputes with a value above 11,330₺, the consumer court is competent. In consumer disputes falling within the jurisdiction of the consumer court, mediation is stipulated as a prerequisite for filing a lawsuit. If the parties cannot reach an agreement at the end of the mandatory mediation process, legal action may be pursued.

How to Draft a Defective Good Lawsuit Petition?

TO THE ANATOLIAN ( ) CONSUMER COURT OF ISTANBUL

PLAINTIFF :

COUNSEL : Law Office of [Attorney's Name]

DEFENDANT :

SUBJECT : Submission of our lawsuit petition.

1-) My client purchased a … brand … model and … color phone from the defendant on 01.06.2020. The price of the purchased phone is 17,500₺ as of the date of the lawsuit.

2-) After the phone began to be used, my client noticed that no sound was coming from its earpiece during calls.

3-) Thereupon, my client applied to the seller, and the seller informed my client that the product was defective upon this application.

4-) The absence of the necessary feature in the phone purchased by my client means that it will not provide the expected benefit from the phone.

5-) Although a request was made to the seller for the replacement of the sold item with a non-defective equivalent, this request was denied, necessitating the filing of this lawsuit.

LEGAL GROUNDS : Law on Consumer Protection and other relevant legislation

LEGAL EVIDENCE : Invoice, expert witness

CONCLUSION AND REQUEST : For the reasons presented and explained above; I respectfully submit and request from your esteemed court the replacement of the defective good with a non-defective equivalent, and the imposition of court costs and attorney's fees on the defendant. 12.11.2020

What is the Statute of Limitations for Defective Goods?

In cases of defective goods, whether the defect is patent or latent, the statute of limitations is 2 years from the date of delivery. This period may be extended by contract. Residential units or immovable properties for holiday purposes are subject to a 5-year statute of limitations in case of defects. These periods pertain to the exercise of optional rights. The statute of limitations for compensation for damages arising from defects is 10 years, according to the general provisions of the Code of Obligations. In second-hand sales, the period of liability for defective goods is 1 year. For second-hand residential units or immovable properties for holiday purposes, this period is 3 years. If the defect was concealed or if there is gross negligence, the statutes of limitations do not apply. You may submit any questions you have regarding defective goods to us via the form at the bottom of the page.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy