How is a ‘product defect’ defined in your jurisdiction?
The Law on Consumers’ Protection (6502) provides that a product is defective if, at the time of delivery to the consumer:
- it does not bear one or more features specified on the:
- promotional material;
- user's manual;
- internet portal;
- advertisements; or
- it is not of the quality specified by the seller or determined in technical specifications; or
- it does not satisfy the purpose of use of equivalent goods, thus decreasing or eliminating the benefits that the consumer can reasonably expect from the product – this includes material, legal or economic defects.
With regard to product safety, the Law on the Preparation and Application of Technical Literature for Products (4703) provides that any product put on the market must comply with technical specifications and must be safe. Under the law, technical specifications:
- must consider a public interest, such as:
- human health;
- safety of life and property;
- protection of the environment; or
- animal and plant health;
- must not prevent competition and go beyond their original purpose; and
- must be suitable, proportional, clear and applicable.
Products that do not satisfy these conditions will be deemed defective or malfunctioning.
Causation and burden of proof
How is causation of loss or damage established in relation to product liability claims and where does the burden of proof lie? Can this burden be shifted in any way?
Contrary to the EU Product Liability Directive (85/374/EEC), under the Turkish Code of Obligations (6098), the indemnification obligation arising from defective or flawed products is a fault-based liability – the code provides no strict liability due to a defective product. Accordingly, a party which has suffered a damage due to a defective product must prove:
- the damage;
- the causality; and
- the fault of the manufacturer or concerned party.
By contrast, under the Law on Consumers’ Protection, any party which suffers damages as a result of a defective product may claim these damages from the producer of the product in question without the need for proof of fault. According to the law, the damages arising from defective products are regulated as strict liability. In such cases, the producer or manufacturer may be relieved from liability if it provides proof of relief. A specific regulation governs such cases.
Legal bases for claims
On what legal bases can a product liability claim be brought?
A party who has suffered damages (whether material or non-material) or bodily injury because of a defective or flawed product may bring a claim under:
- the Turkish Code of Obligations;
- the Law on Consumers’ Protection;
- the Regulation on Liability for Damages caused by Defective Products (25137); or
- the Turkish Criminal Code.
Can a defendant be held criminally liable for defective products?
Section 5 of the Law on the Preparation and Application of Technical Literature for Products prohibits tampering with, forging or improper use of compliance marks or certificates. Violation of this prohibition will trigger administrative penalties. In addition, under Article 207 of the Criminal Code, the use of forged documents as described in the law will constitute the crime of forgery of private documents.
Further, where an unsafe or defective product causes death or injury, liability may be triggered:
- for manslaughter under Article 85 of the Criminal Code; or
- for causing injury under Article 89 of the Criminal Code.
The liability of producers of foodstuff and pharmaceuticals may also be triggered under the “crimes against public health” listed in the Criminal Code.
Which parties can be held liable for defective products?
Liability depends on the law and the damages claimed. A key distinction may be made between product liability and product safety law. Under the Law on the Preparation and Application of Technical Literature for Products (which governs product safety), the producers, authorised representatives, importers and distributors of a product are responsible for compliance with the regulations specified in that law. Under the same statute, assemblers, installers, users (eg, users of products kept in a workplace) and sellers which may be indirectly called producers are also responsible for the safety of products and their compliance with technical specifications.
By contrast, the Law on Consumers’ Protection defines product liability in a narrow sense, limiting it to the producers, importers and sellers of products, and the providers of services.
The Law on Consumers’ Protection also distinguishes between the producer’s liability and the seller’s liability. For example, refund of a defective product may not be claimed from the producer or importer, but may be claimed from the seller. However, the seller is not responsible for any damage arising from a defective or flawed product; instead, the producer or importer is liable.
Limitation of liability
Can liability be excluded or mitigated in any way?
Turkish law does not provide for the possibility to disclaim liability in advance. However, under the Regulation on Liability for Damages Caused by Defective Products, the producer, manufacturer or importer may not be found liable in the following circumstances:
- The product has not been launched.
- The product has not been produced for sale or in the course of commercial activities.
- Having considered all facts and circumstances, at the time of launch, the product did not present the defect that caused the damage.
- The technical specification of the product caused the damage.
- The state of the scientific and technological knowledge at the time of the product launch meant that the existence of the defect could not be perceived.
In addition, the producer or manufacturer of a part, forming the whole, is not responsible for the design of the final product or the instructions of use of such product.
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