It is known that consumers face great difficulties when they realize the defect of the goods they purchase and want to exchange or return them. With the Law on the Protection of Consumers, which gives consumers the right to return, replace, discount or repair such goods free of charge within 15 days, it is aimed to minimize the rate of defects in the goods and services offered to the market with the preventive / deterrent effect of the law, as well as to eliminate the victimization of consumers with defective goods.
It is known that consumers face great difficulties when they realize the defect of the goods they have purchased and want to exchange or return them. With the Law on the Protection of Consumers, which gives consumers the right to return, replace, discount or repair such goods free of charge within 15 days, it is aimed to minimize the rate of defects in goods and services offered to the market with the preventive / deterrent effect of the law, as well as to eliminate the victimization of consumers with defective goods.
It is stated that essentially the same provisions will be applied to the services, but taking into account that it may often be impossible to see the services again, it is stipulated that in these cases, the benefit provided by the consumer from the defective service should be deducted from the price to be returned.
Situations requiring consumer protection are regulated in the Law No. 6502 on Consumer Protection:
Defective Goods (Article-4): Goods containing material, legal or economic deficiencies that are contrary to the quality or quantity affecting the quality or quality determined in the packaging, label, introduction and user manual or advertisements and announcements or notified by the seller or in the standard or technical regulation, or that reduce or eliminate the value in terms of allocation or intended use or the benefits expected by the consumer from it, are considered defective goods.
Defective Service (Article-5): Services that are contrary to the quality or quantity affecting the quality or quality determined in the advertisements and announcements notified by the provider or in the standard or technical rule, or that contain material, legal or economic deficiencies that reduce or eliminate the value in terms of the purpose of utilization or the benefits expected by the consumer from it, are considered defective services.
Defective Tourism Product: “Goods and services that are included in the brochures sent to consumers in order to promote the tour applied in the sale of tourism services and to ensure participation in the tour, or that are promised by the travel agency, or that do not comply with the standards determined by the competent authorities and authorities in terms of quality and / or quantity, or that contain material, legal or economic deficiencies that reduce or eliminate its value in terms of its purpose of allocation and use or the benefits expected by the consumer from it.”
In addition to travel agencies, the services of hotels, restaurants, yacht or marina operators, which are announced to their customers through brochures or various means, contain deficiencies that prevent them from meeting the expectations, are also included in the concept of defective tourism services.
The definition of defective sale of goods or services as defined in the Law does not fully meet the nature of tourism services due to their special characteristics. Interpretations are required regarding tourism practices.
- Rights and Obligations of the Consumer/Tourist Purchasing Defective Goods or Services
The consumer is obliged to notify the seller of the defect within 30 days from the date of delivery of the goods.
Right to Request a Change in the Contract
With this right, which can be exercised after the signing of the contract or during its fulfillment, the tourist may request that the service included in the contract be made defect-free and the contract be amended accordingly.
2) Termination of the Contract and the Right to Request the Return of the Price Paid
If the tourist has been misled in the constituent elements of the contract, if the realization of the purpose expected by the contract is impossible under the conditions offered, the tourist may terminate the contract with a notification and request the money back. In this case, which will be accepted as a termination before the commencement of performance, in addition to the price paid, the tourist has the right to demand interest for the period between the day of payment and the day of redemption. The rate of interest to be requested will be the agreed rate if agreed in the contract, and the legal interest rate if not agreed.
3) The Right to Request Damages Incurred with Defective Performance of the Service
The consumer who realizes that defective service is provided may accept the service as defective at every stage of the contract and request a discount from the price to be paid to the travel agency in proportion to the loss of value caused by the defect. (For example, the right to request compensation for the bad unit in an accommodation facility where a bad dinner is served in a package product where everything goes well).
4) The Right to Demand Payment of Damages Jointly (Together) and Severally (Chained)
The tourist who suffers damage due to defective tourism service has the right to claim all damages from the travel agency that sells the tourism service or the agency that mediates it or the service producer.
5) Material or Moral Damages in the Sale of Defective Goods and Defective Service Provision
Pursuant to Article 22 of the Regulation on Consumer Arbitration Committees, it is regulated that the consumer arbitration committees are bound by the demands of the parties when deciding on the dispute, that in cases where material and/or moral compensation may be claimed by consumers, the said demand should be clearly and clearly stated and that expert opinion should be consulted in deciding on compensation claims.
On the other hand, the consumer, on the other hand, in his/her claims for pecuniary and non-pecuniary compensation
The damage suffered,
The seller has sold defective goods or the provider has provided defective services
The seller is at fault in selling defective goods or the provider is at fault in providing defective services,
It is obliged to prove that there is a causal link between the damage suffered and the defective goods sold or defective service provided.
Rights and Obligations of the Seller / Provider Selling Defective Goods or Services
In the event that a contractual good is claimed to be defective, pursuant to Article 9 of the Law No. 6502 titled “Liability for defective goods”, the seller has the burden of proving that the goods were delivered to the consumer in accordance with the sales contract; in the event that a contractual service is claimed to be defective, pursuant to Article 14 of the Law titled “Liability for defective service”, the provider has the burden of proving that the service was provided to the consumer in accordance with the service contract.
Not knowing that the goods sold are defective does not eliminate the seller’s liability. If the defect of the goods sold is of a hidden nature or if the defect is fraudulently concealed from the consumer, the seller cannot escape liability by claiming that he has not applied to him within 30 days.
Liability for defective goods is subject to a statute of limitations of 2 years from the date of delivery of the goods to the consumer, even if the defect is revealed later. This period is 5 years for immovable goods for residential and vacation purposes. Claims to be made for any damages caused by defective goods are subject to a 3-year statute of limitations. These claims are extinguished after 10 years starting from the day the goods causing the damage were put on the market. However, if the defect of the goods sold is concealed from the consumer by the seller’s gross negligence or fraud, the statute of limitations cannot be utilized.
On the other hand, the seller or supplier reserves the right to prove that it is not responsible for the damage in question or that the damage has increased due to the consumer’s act in accordance with the relevant provisions of Law No. 6098.
III. Do disputes involving a foreign element fall within the jurisdiction of consumer arbitration committees?
In general, it is observed that the tourism sector is associated with the Law No. 4077 on the Protection of Consumers due to the sale of services. This is because the essence of the Law is related to the problems arising from the exchange of goods. As for the service sector, it covers services such as dry cleaning, etc. Tourists may also benefit from the Law No. 6502 on the Protection of Consumers in case of problems they encounter during their shopping in our country. Such disputes are handled with priority by consumer arbitration committees.
In disputes involving a foreign element, the issue of the application of laws in terms of location also comes to the fore. The application in terms of location determines the geographical boundaries within which the laws will be applied, and there are two principles in the application of laws in terms of location: proprietary and personal. Under the principle of territoriality of laws, laws are applicable to all persons, citizens or foreigners, real or legal persons, within the territory of the state to which they belong, whereas they are not applicable outside the territory. In the principle of individuality of laws, on the other hand, wherever the person goes, the laws of the country of which he is a citizen are applied to him, but not the laws of the country where he is located. In Turkish law, a mixed system has been adopted and the principle of proprietary law is the rule and the principle of individuality of laws is applied in clearly regulated exceptional cases.
Article 26 of the Law No. 5718 on Private International Law and Procedural Law stipulates that consumer contracts shall be governed by the law chosen by the parties, without prejudice to the minimum protection afforded by the mandatory provisions of the law of the consumer’s habitual residence; if the parties have not made a choice of law, the law of the consumer’s habitual residence shall apply to the contract under certain conditions set forth in the same article.
In this context, it is possible for a consumer who is not a Turkish citizen to apply to the consumer arbitration committee in order to resolve a dispute with a seller and/or provider resident in Turkey and a binding decision may be taken by the consumer arbitration committee.
On the other hand, in the event that a consumer who is a Turkish citizen applies to the consumer arbitration committee for the resolution of a dispute with a seller and/or provider residing in a foreign country, it is considered that the decision to be taken by the consumer arbitration committee will not be binding in accordance with the principle of subsidiarity of laws and the dispute in question will not fall within the jurisdiction of the consumer arbitration committee.
One of the international documents on consumer rights is the “United Nations Universal Declaration of Consumer Rights”. The said Declaration was prepared “taking into account the interests and needs of consumers; recognizing that consumers often face imbalances in terms of economic conditions, education levels and bargaining power, with the idea that consumers should have the right to access harmless products”. For this reason, every modern study, interpretation and amendment to the law on consumer rights should be in line with the above-mentioned internationally recognized determinations and principles.
