1. Who is obliged to prove the claim of defect in a commercial sale relationship?

According to Article 190 of the Code of Civil Procedure (shortly as "CCP") regulating the burden of proof, unless there is a special provision in the law, the burden of proof belongs to the party who draws a right in their favour from the legal result connected to the alleged fact. There are also regulations such as pursuant to Article 6 of the Turkish Civil Code, "As a rule, everyone is obliged to prove their claim". In this respect, the buyer party claiming defect, is obliged to prove the defect claim.

Thusly, the decision of Bakırköy 5th Commercial Court of First Instance numbered as 2019/697, D. No. 2022/545, and dated 10.11.2020;

According to Article 190 of the CCP regulating the burden of proof, unless there is a special provision in the law, the burden of proof belongs to the party who draws a right in their favour from the legal result connected to the alleged fact. There are also regulations such as pursuant to Article 6 of the Turkish Civil Code, "As a rule, everyone is obliged to prove their claim". Accordig to this, the claim of defect must be proved by the plaintiff, and since this issue could not be proved, a judgement was rendered as written below regarding the dismissal of the lawsuit.

Decision of the 43rd Civil Chamber of the Istanbul Regional Court of Justice numbered as 2020/1175, D. No. 2023/80, and dated 02.02.2023;

the party who derives a right in their favour from the legal result attributed to the alleged fact is under the burden of proof (CCP art. 190), and as a result of these basic rules, everyone is obliged to prove their claim. In this context, the defendant must also prove the reason for the issuance of the reclamation invoice, meaning, the issues related to the defect claim.

2. What are the periods of defect notication in a commercial sale relationship? What are the consequences if these periods are not respected?

Article 23/1-c of the Turkish Commercial Code follows as;

"If the goods are obviously defective at the time of delivery, the buyer must notify the seller within two days. If the defect is not obvious, the buyer is obliged to inspect or have the goods inspected within eight days after receiving the goods, and if the goods are found to be defective as a result of this inspection, he/she is obliged to notify the seller within this period in order to protect his/her rights."

According to this; obvious defects - that is, defects that are apparent at the time of delivery - must be notified by the buyer to the seller within two days after delivery. If there is no obvious defect in the goods sold, in other words, if it is not possible to understand that the goods are defective at the time of delivery, the buyer is obliged to inspect or have the goods inspected within eight days after the delivery of the goods, and if this inspection reveals that the goods are defective, the buyer is under an obligation to notify the seller in order to protect his rights. In this respect, the buyer is obliged to inspect the sold goods within eight days if there is no obvious defect, or to have them inspected, and if it is found to be defective as a result of this inspection, to notify in order to protect his rights. If the buyer neglects to do so, he shall be deemed to have accepted the goods sold.

As a matter of fact, the decision of the 19th Civil Chamber of the Court of Cassation numbered as 2011/13467, D. No. 2012/5651, and dated 04.04.2012;

"In commercial sales, the defect notification period is regulated in Article 25/3 of the Turkish Commercial Code (shortly as "TCC") and obvious defects must be notified to the other party within 2 days, and hidden defects must be notified to the other party within 8 days. Since the plaintiff could not prove that he notified the defect in due time, he should be deemed to have accepted the goods as they are."

Decision of the 19th Civil Chamber of the Court of Cassation numbered as 2014/8742, D. No. 2014/10392, and dated 03.06.2014;

The court decided to dismiss the case on the grounds that the defect in the fabric was caused by the yarn according to the expert examination, according to Article 25 of the TCC, in case of obvious defect, the defect should be notified within 2 days, in case of hidden defect, the defect should be notified within 8 days, although the last invoice date was 03.02.2012, the defect notification was made via e-mail on 12.04.2012, and the judgement was appealed by the plaintiff's attorney. According to the writings in the file, the evidence on which the judgement is based, the reasons for the judgement, and the appreciation of the evidence, the judgement, which is in accordance with the procedure and the law, is APPROVED by rejecting all the appellate objections of the plaintiff's attorney, which are not deemed appropriate"

Desicion of the 11th Civil Chamber of the Court of Cassation numbered as 2020/5033, D. No. 2021/3704 and dated 15.04.2021;

"It was decided to dismiss the lawsuit on the grounds that the plaintiff was required to inspect the yarns purchased by the plaintiff within 8 days pursuant to Article 23/1-c of the TCC, or to have them inspected and to notify the seller of the result of the inspection, that no notice of defect was made in due time, and that in this case the plaintiff would be deemed to have accepted the product in this state. The decision was appealed by the plaintiff's attorney. According to the writings in the file, the fact that the court has made a judgement in accordance with the reversal decision complied with and there is no inconsistency in the evaluation of the evidence, all the appellate objections of the plaintiff's attorney are not in order."

Decision of the 19th Civil Chamber of the Court of Cassation numbered as 2017/193, D. No. 2018/6090 and dated 26.11.2018;

"regarding the products received by the plaintiff on 04.08.2014 (ten days later) 14.08. 2014 dated 14.08.2014 and it is clear that the said defect notice was not in due time, it is obligatory to notify the defects and deficiencies that may arise at the time of delivery immediately and within two days at the latest, otherwise the goods will be deemed to be accepted in defective condition, the defects alleged to exist in the returned products are in the nature of obvious defects, the plaintiff notified the defect 10 days after the delivery of the goods to him and this issue was objected by the defendant, the plaintiff's claim that some of the returned products are defective and incomplete is not acceptable"

Decision of the 19th Civil Chamber of the Court of Cassation numbered as 2017/4021, D. No. 2019/1526 and dated 11.03.2019;

"The lawsuit is related to the request for replacement of the goods arising from the commercial sale due to defective goods. Pursuant to Article 23/c of the TCC, "If the defective goods are obviously evident at the time of delivery, the buyer must notify the seller within two daysIf it is not obvious, the buyer is obliged to inspect or have the goods inspected within 8 days after receiving the goods and if the goods are found to be defective as a result of this inspection, the buyer is obliged to notify the seller within this period in order to protect his rights. In other cases, Article 223 of the Turkish Code of Obligations (shortly "TCO") shall be applied", and the court should determine whether the notice of defect has been made in due time by taking the provision of the article into account and make a decision according to the result, but it has not been deemed correct to make a judgement as written."

Decision of the 19th Civil Chamber of the Court of Cassation numbered as 2017/3498, D. No. 2019/5120 and dated 13.11.2019;

"The Regional Court of Appeal decided to reject the defendant's request for appeal on the grounds that the defect in the fabrics subject to the lawsuit is not hidden but in the nature of an obvious defect and should be notified within 8 days from the receipt of the goods in accordance with Article 23 of the TCC No. 6102, and since the notification was not made within 8 days from the date of receipt, the defendant's objection based on the claim of defect was not appropriate and the decision of the first instance court to accept the lawsuit was appropriate, and the judgement was appealed by the defendant's attorney. According to the writings in the file, the evidence on which the decision is based, the reasons for the decision, and the appreciation of the evidence, the rejection of all the appellate objections of the defendant's attorney, which are not deemed appropriate, and the judgement of the 16th Civil Chamber of the Istanbul Regional Court of Justice dated 03.04.2017 and numbered 2017/248 main, 2017/1063 decision, which is in accordance with the substantive law and procedural law, be APPROVED..."

Decision of the 11th Civil Chamber of the Court of Cassation numbered as 2020/4749, D. No. 2020/5806 and dated 10.12.2020;

"the purchased goods were delivered on 28.01.2011, the laboratory examination on the salt was made on 14.07.2011, the defect notification was made on 22.12.2011 and the lawsuit was filed on 31.05.2012, according to Article 23/1.c of the TCC, the buyer is obliged to inspect or have the goods inspected within 8 days after receiving the goods and to notify the seller if the goods are defective as a result of this inspection, and the buyer who does not comply with the 8-day inspection and notification obligation will be deemed to have accepted the goods in that state, the plaintiff, who did not notify the defects in due time, cannot benefit from Article 227/2 of the TCO, even if it is assumed that there is a hidden defect, although there is an obligation to notify immediately on the date the defect is revealed later, this obligation has not been complied with by not taking notice for months"

Decision of the 11th Civil Chamber of the Court of Cassation numbered as 2020/3279, D. No. 2020/4723 and dated 04.11.2020;

Pursuant to paragraph 25/3 of the TCC No. 6762 in force on the date of the lawsuit (Art. 23 of the TCC No. 6102), in commercial sales, if the defect of the goods is obviously evident at the time of delivery, the buyer is obliged to notify the seller within 2 days, and if it is not obviously evident, the buyer is obliged to inspect or have the goods inspected within 8 days after receipt of the goods, and if the goods are found to be defective as a result of this inspection, the buyer is obliged to notify the seller immediately. If the defect cannot be detected by ordinary inspection and is a defect that arises as a result of use, paragraph 2 of Article 198 of the Code of Obligations shall be applied. In the present case, since the defendant did not notify the defect in accordance with the procedure, it was necessary to determine the plaintiff's receivable and make a decision according to the result, considering that the defendant did not have the right to deduct the sale value due to the defective goods, but it was necessary to make a decision in writing with an erroneous justification.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.