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Introduction
Under the Turkish Code of Obligations No. 6098 (“TBK”), “defect” refers to a situation where a sold good does not conform to the contract or is defective. Indeed, according to Article 219 of the TCC, a defect is defined as “any discrepancy between the goods and the seller’s statements or representations regarding the goods’ nature, type, quantity, dimensions, packaging, advertisements or labels under the name of the business or otherwise, instructions for use, or warranty documents.”
In this context, a defect exists if the condition of the goods at the time of delivery to the buyer does not align with the terms specified in the contract or the seller’s statements, or if the goods do not meet the expected standards for their use.
The Turkish Code of Obligations contains certain special provisions regarding defects. These include the inspection period following the receipt of the defective goods and the buyer’s discretionary rights once a defect is discovered.
The Turkish Code of Obligations and the United Nations Convention on Contracts for the International Sale of Goods (CISG) regulate liability arising from defects within different frameworks. While the CISG aims to establish a uniform system suited to the needs of international trade, the TBK continues to follow the more classical continental European approach. In this study, the concept of defect, the conditions of liability, and the consequences thereof will be examined comparatively under both legal frameworks.
The Concept of Defect
Under the TCC, a defect is defined as the failure of the sold item to possess the qualities agreed upon in the contract or those that should objectively be present. Pursuant to TCC Art. 219, a defect may be of a material, legal, or economic nature and must significantly reduce the value or intended use of the goods.
In the CISG, however, the concept of a defect is regulated under the heading “non-conformity with the contract.” According to CISG Article 35, the seller is obligated to deliver goods in the quantity, quality, and type agreed upon in the contract. In this context, the CISG interprets the concept of a defect more broadly and even classifies the delivery of the wrong goods (aliud) as a defect.
A key difference is that under the CISG, the concept of defect is essentially limited to material defects, while legal defects are regulated in separate articles (Articles 41–42). In the Turkish Civil Code, however, this distinction is addressed within a more comprehensive framework.
Duty to Inspect and Notify
Pursuant to Article 223 of the TBK, the buyer is obligated to inspect the goods “in the ordinary course of business.” CISG Article 38, however, uses a more flexible formulation, requiring the inspection to be conducted “as soon as circumstances permit.”
Although this vague timeframe in the TBK has led to debates in legal doctrine, Article 23(c) of the Turkish Commercial Code No. 6102 (“TTK”) provides for more specific timeframes in commercial sales. Accordingly, if a defect is clearly apparent at the time of delivery, the buyer must notify the seller within two days. If the defect is not clearly apparent at the time of delivery, the buyer is obligated to inspect the goods or have them inspected within eight days of receipt and, if a defect is discovered, to notify the seller within that period.
The CISG’s provisions, however, offer a more flexible framework by taking into account the differences in transportation, distance, and organization in international trade.
According to CISG Art. 38(2), if the contract requires the goods to be transported, the inspection may be deferred until after the goods have arrived at their destination. In this respect, the CISG explicitly regulates the commencement of the inspection period in sales by delivery. While Article 226 of the Turkish Civil Code (TBK) addresses the “shipment of the goods from another location,” it does not contain an explicit provision regarding the commencement of the inspection period.
Regarding the notification of defects, Article 223 of the Turkish Civil Code requires that the notification be made within a “reasonable time.” The CISG, however, adopts a more systematic approach in this regard. Under Article 39 of the CISG:
- Relative period: A reasonable period from the time the defect is discovered
- Absolute period: Two years from delivery
- a dual time limit system is established. The two-year period here is set as the maximum.
The absence of an absolute time limit in the Turkish Civil Code constitutes a significant difference, and in this regard, the CISG offers a more predictable system.
In both systems, the seller’s liability ceases if the buyer knew of the defect or should have known of it. CISG Art. 35(3) explicitly addresses this situation. Under TBK Art. 222, however, the seller is not liable for defects known to the buyer at the time the contract was concluded; furthermore, the seller is liable for defects that the buyer could have discovered through a reasonable examination only if the seller has specifically warranted that such defects do not exist.
Legal Consequences of Liability for Defects
Under CISG Art. 46(2), if the goods do not conform to the contract and this non-conformity constitutes a fundamental breach, the buyer may, under certain conditions, demand delivery of substitute goods. A fundamental breach of contract is defined in CISG Art. 25 and occurs when the breach deprives the other party of a substantial benefit expected from the contract.
Consequently, while the CISG requires the condition of a fundamental breach for a claim for replacement with goods free from defects, TBK does not explicitly stipulate such a condition for the exercise of this right.
According to CISG Art. 46(1), the buyer may only claim a substitute if they have not exercised another discretionary right. Although there is no explicit provision in the TBK, a similar conclusion may be reached based on the principle that the exercise of rights that give rise to a new legal situation exhausts them.
The CISG also grants the buyer the right to request repair (Art. 46(3)). However, for this right to be exercised, the repair must be reasonably expected from the seller.
In addition, the buyer has the right to rescind the contract under CISG Art. 49 and the right to a price reduction under Art. 50. These elective rights largely correspond to the provisions in the Turkish Civil Code.
Finally, pursuant to CISG Art. 45, the buyer may separately claim compensation for any damages incurred, regardless of which discretionary right is exercised. Similar to TBK Art. 112, the exercise of these discretionary rights does not preclude a claim for damages.
Conclusion
While the TBK and the CISG are based on similar fundamental principles regarding liability for defects, they contain significant differences in terms of their systematic structure and application. While the TBK adopts a more classical and comprehensive approach, the CISG offers a more flexible and predictable framework suited to the dynamics of international trade. In particular, the CISG is seen to provide a more detailed and systematic framework regarding inspection and notice periods, as well as the concept of fundamental non-conformity. In contrast, the TBK establishes a more flexible framework regarding the exercise of certain rights in favor of the buyer. Therefore, determining which system applies based on the nature of the specific case is crucial for the scope of the parties’ rights and obligations. In particular, the question of which types of disputes the CISG applies to is of great importance in the context of the specific case.
References
- https://cisg.bilgi.edu.tr/tr/sayfa/cisg-metni/
- Aktürk, Yrd. Doç. Dr. İpek YÜCER. 2015. “Viyana Satım Sözleşmesi Kapsamında Satıcının Ayıptan Doğan Sorumluluğu”. Ankara Barosu Dergisi, P 1. https://izlik.org/JA95LB47CE.
- YILMAZ, Süleyman: Milletlaerarası Mal Satımına İlişkin Sözleşmeler Hakkında Birleşmiş Milletler Antlaşması (CISG) Uyarınca Sözleşmenin İhlali Halinde Alıcının Hakları, Yetkin Yayınları, Ankara 2013.
- Oğuzman, M.Kemal. Borçlar hukuku. İstanbul: Vedat Kitapçılık, 2024.
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