One of the most complex problems faced by the parties in a commercial transaction is the delivery of defective goods. Although the results of defective performance in most contracts are arranged in detail; some contracts do not include provisions for resolving disputes arising from defective delivery, or existing provisions are not sufficient to resolve the dispute. One of the most incomprehensible problems in commercial sales is the importer's responsibility for defective products. Even if the importer is not the manufacturer of the products, it has a responsibility to the counter party of the sales contract concerning defective goods under Turkish Law[1].

The seller is liable for the defective goods that have a failure to meet the qualities or specifications warranted by the seller under the sales contract or that have material, economic or legal insufficiencies[2] which affect the quality and quantity of the product[3]. Under Turkish Law, it is regulated that the merchant, who claims the goods delivered are defective, must serve a notice[4] to the seller in order to use his/her elective rights[5].

As per article 23 / 1-c[6] of Turkish Commercial Code No. 6102 (“TCC”), in case there is a defect found in the goods concerning commercial sales, the defect notice shall be made in a notice period depending on the type of the defect: the buyer has an obligation to report the defective goods to the seller within two days in the case of "obvious defects"[7] and within eight days in case of "ordinary defects"[8]. As for “hidden defects” [9], the buyer shall report the situation to the seller immediately. Failure to report any defects within the legal period results the loss of buyer’s right to apply for the elective rights arising from the Law[10].

Can the Buyer Benefit from a Guarantee Commitment?

Sometimes, in commercial sales, the seller may offer a warranty document for the product in order to attract the buyer to the sign the contract by providing him with some additional rights. This document, which is called a warranty certificate[11] in consumer sales, is regarded as a guarantee agreement between merchants[12].

The statute of limitation regarding the defective products is set at 2 years under general provisions[13].It should be noted that a period of limitation prescribed by the manufacturer over the statutory period indicates that the period has been extended, meaning that the rights of the buyer risen from the defective products will continue until the end of the period specified in the concerned warranty agreement. And this period will also bind the importer against the buyer if it has been committed by manufacturer to the importer[14].

The aim of the warranty commitment is to provide additional rights to the buyer or to extend the rights provided in sales contract. With such commitment, the buyer may make requests regarding the products without complying with the legal requirements of defective product responsibility of the seller[15]. However, in case the seller has made a commitment which complements the responsibility for the defect, elective rights within the meaning of Turkish Code of Obligations No.6098 (“TCO”) article 227 shall also be applicable by fulfilling the legal requirements regarding the defective goods responsibility.

Is it Possible to Relieve from the Liability?

Finally, since the defective goods provisions in the TCO are not mandatory rules of law, the parties will be able to make agreements that eliminate or restrict such regulations if they wish. For such non-liability clause to be binding between parties, the seller should acknowledge that the defects found are unknown to him/her before the delivery[16]. But if the seller has fraudulently disguised the defect from the buyer, any condition that limits or removes the responsibility of the importer regarding the defect will be deemed invalid[17].