Distinction Between Concealment Of Defects In The Property Sold Due To Gross Negligence Or Fraud
The Liability of the Seller for Defective Goods is regulated by the Consumer Protection Law No. 6502. Pursuant to the law, the seller is obligated to deliver the goods to the consumer in accordance with the sales contract.
Defects in the goods that arise within six months of the date of delivery to the consumer by the seller are deemed to have existed at the time of delivery, as required by law. In this case, the burden of proof that the goods are not defective is imposed on the seller by law. If the seller proves that the consumer was aware of the defect at the time the contract was concluded or should have been aware of it, there is no breach of contract. In all other cases of defects, the consumer’s discretionary rights are reserved.
If it is determined that the goods sold by the seller to the consumer are defective, the consumer may: has the discretionary rights to withdraw from the contract by declaring their readiness to return the goods, to keep the goods and request a discount from the sale price proportional to the defect, to request the goods be repaired free of charge at the seller’s expense, provided it does not involve excessive costs, and, if possible, to request the goods be replaced with a defect-free equivalent. The consumer may exercise one of these options. The seller is obliged to fulfill the option chosen by the consumer in accordance with the rules of good faith and fair dealing.
The statute of limitations for the seller’s liability for defects is regulated separately in the law. Article 12 of the Consumer Protection Law contains the following provisions regarding the statute of limitations.
“(1) Unless a longer period is specified in the laws or in the contract between the parties, liability for defective goods is subject to a two-year statute of limitations from the date of delivery of the goods to the consumer, even if the defect appears later. This period is five years from the date of delivery of the immovable property for residential or vacation purposes.
(2) Subject to the third paragraph of Article 10 of this Law, in second-hand sales, the seller’s liability for defective goods shall not be less than one year, and in the case of immovable property for residential or vacation purposes, it shall not be less than three years.
(3) If the defect has been concealed by gross negligence or fraud, the statute of limitations provisions shall not apply.”
It is clear that all provisions regarding the statute of limitations in Article 12 of the TKHK stipulate that the seller’s liability period for defects in residential or vacation property sales is longer than for other goods. However, the legislator has excluded cases where the defect is concealed by the seller’s gross negligence or fraud from this distinction. Regardless of the nature of the goods sold, if the seller concealed the defect, gross negligence, or fraud, the seller cannot benefit from the statute of limitations provisions. Regardless of how much time has passed since the sale, the consumer can always exercise their discretionary rights. The seller has unlimited liability for defects. This provision of the Law, which is clearly regulated in the TKHK, is also applied to specific disputes by the established case law of the Court of Cassation.
The ruling of the 13th Civil Chamber of the Court of Cassation dated 16.6.2016, numbered 2015/22960 E 2016/15328 K;
“According to the provision of the second paragraph of Article 4 of Law No. 4077, the consumer is obliged to notify the seller of any apparent defects within thirty days from the date of delivery of the goods. In this case, the consumer has the right to withdraw from the contract, including a refund, to request replacement of the goods with goods free of defects, to request a price reduction proportional to the defect, or to request free repair. The seller is obliged to fulfill the consumer’s preferred request. The Consumer Protection Law does not contain any provisions regarding the period within which hidden defects must be reported to the seller. Therefore, pursuant to Article 30 of Law No. 4077, in cases where there is no provision in this law, the dispute must be resolved in accordance with general provisions, and Article 198 of the Debt Law No. 818 shall apply. Therefore, hidden defects must be reported within the statute of limitations period and immediately (within the shortest time consistent with the principle of good faith) after the defect becomes apparent. In determining whether the defect is apparent or hidden, the knowledge of an average consumer must be taken into account. If this is neglected, the buyer shall be deemed to have accepted the item with the defect. Article 4(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 period cannot be invoked, and the case will be decided based on whether the lawsuit was filed within the applicable timeframe.