Turkish glance at the law

This essay discusses sellers’ liabilities on e-commerce activities in Turkey, which are regulated by Turkish Obligations Code (OC) and Commercial Code (CC).

Under Turkish OC, article 182, buyers are responsible for the profits or losses generated by the purchased goods from the time the agreement is concluded, unless the agreement states otherwise.

The buyer must examine a purchased product in a possibly short term and if some defect is found, he must inform the seller immediately; otherwise, the buyer’s acceptance for such product is assumed. In case of improper delivery of products or seller’s fraudulent acts, the seller remains liable even if the buyer fails to inform the seller about any defect. Under OC, articles 202 and 203, the seller is obliged to change the product or accept termination of the contract upon the buyer’s request. When the buyer opts to terminate the agreement, the seller shall pay an amount equal to the agreement plus interests and indemnify the buyer for losses arising from the defected products. The seller is also liable for damages caused to the buyer when trying to prove that it is not responsible for the products’ defect. These provisions of Turkish Obligations Code are applicable to e-commerce transactions.
How the OC protects the buyer from fraudulent acts of the seller?

Article 201 of the OC prescribes that the buyer claiming defectiveness of products delivered to him, where there is no seller representative, should take the necessary measures to keep products safely and avoid sending the products back to the seller, unless the buyer informs the seller about this return. If the buyer sends the products back to the seller without previous notification, the buyer is liable for resulting damages. The OC’s aim is to protect buyers from seller’s fraudulent acts; nevertheless, buyers must prove the product is defective with an investigation conducted by a notary public or a competent court; otherwise, buyers may be liable for damages arisen when trying to prove the products’ defectiveness.
Who is liable for reimbursement of expenses on the products’ delivery?
The seller must reimburse expenses related to products’ delivery and the buyer is liable for expenses related to shipment documentation, unless otherwise provided by agreement (OC, article 185). Shipment expenses should be covered by the buyer, unless otherwise prescribed by custom, practice, or the agreement (OC, article 186). Therefore, parties to a sale contract, including e-commerce contracts, must read the agreement carefully and consider provisions related to shipment expenses.

When buyers rescind the contract due to delay in the product’s shipment and order same product from another vendor, buyers are entitled to reimbursement equal to the difference in price and any other expense incurred in this new buy. Buyers, however, may inform the seller if buyers intend to continue with the contract despite delays in shipment.

What are the terms and procedure for a legal action against seller's fraudulent acts?

Buyers may file a lawsuit against the seller for defects in products or seller’s fraudulent acts within one year of the products’ shipment day, unless the parties agree otherwise. This term may be prolonged to 5 years in certain circumstances such as products in shortage. After expiration of t his term, the parties have no right to bring an action against each other.
Is it possible to include some special provisions to remove or limit the seller’s liability? If so, are there any exceptions?
To remove or limit the seller’s liability, the agreement must include some special provisions. For instance, the seller may be released from his responsibility for fault or neglect. Fraudulent acts and serious neglect may not be removed from the seller’s liability.