Defective Goods And Optional Rights
CONSUMER’S OPTIONAL RIGHTS IN CASE OF DEFECTIVE PERFORMANCE
Optional rights are novelty-generating rights that the consumer has in order to prevent victimization in the face of defective goods or services.
The consumer, who has fulfilled the material conditions regarding the defect in the goods purchased and has fulfilled the necessary formal requirements, has been granted rights against the seller within the scope of the elimination of the damages suffered.
Article 227/I of the Turkish Code of Obligations No. 6098 lists the optional rights of the buyer as follows:
1. Returning from the contract by declaring that he/she is ready to return the sold goods,
2. Retaining the sold goods and asking for a discount in the sale price in proportion to the defect,
3. Request free repair of the goods at the seller’s sole expense, unless this would involve an excessive expense,
4. If possible, to request the replacement of the sold product with a similar one without defects.
Again, with the Law No. 6502 on the Protection of Consumers, four rights are granted to the consumer, one of which can be chosen from among them. The consumer is free to choose one of these rights. The seller is obliged to fulfill this request preferred by the consumer. However, as a rule, the consumer, who uses one of these optional rights, will not be able to use one of the other optional rights.
As a matter of fact, in the decision of the 13th Civil Chamber of the Court of Cassation dated 18.6.2012 and numbered 2012/9616 E. 2012/15676 K., it was ruled as follows;
“…When the incident subject to the case is evaluated in the light of the provisions of this law and regulation explained; Since it is understood that the plaintiff has used his right of choice for repair due to the damage caused by the damage and the damage has been completely repaired, he cannot request the return of the price by returning from the contract. As such, while it should be decided to reject the lawsuit, the written decision is contrary to the procedure and the law and is a reason for reversal.”
In the decision, it is clearly stated that the consumer who uses his right of choice cannot return from this right before the legal conditions are met.
In paragraph 3 of Article 11 of the Law No. 6502, “In the event that free of charge 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 at the rate of defect.” With this provision, an exception has been made to the main principle that “the use of optional rights cannot be revoked”. With this provision, in cases where the repair of defective goods is difficult for the seller and in cases where it is impossible to find a defect-free equivalent of the goods, the consumer is granted the unconditional right to return from the optional rights of free repair or replacement with a defect-free equivalent.
The exercise of the optional right by the buyer is subject to certain limitations in terms of equity. These limitations are discussed in Article 227 f. 3, f. 4 and f. 5 of the TCO. Article 227/ f.3 states that “The seller may prevent the buyer from exercising his right of choice by immediately offering the buyer a defect-free substitute of the same goods and compensating the full amount of the damage suffered by the buyer.” This article mentions that the seller may have the opportunity to prevent the buyer from exercising his right of choice by offering a defect-free substitute. Article 227 f.4 of the TCO stipulates that “if the characteristics of the concrete case do not justify the buyer’s choice of rescission of the contract, the judge may use his/her discretion and decide to repair the sale or to reduce the sale price”. Article 227/f.5 of the TCO states that “If the deficiency in the value of the sale is very close to the sale price, the buyer may only exercise one of the rights of rescission of the contract or replacement of the sale with a similar one without defects.”