What are the Rights of People Who Buy a Vehicle with Reduced Mileage?
One of the biggest grievances of buyers after the sale of second-hand vehicles is that the mileage of the vehicle they purchased has been reduced. From a legal point of view, this situation, which is considered as “defective” within the scope of the Turkish Code of Obligations and the Law on Consumer Protection, constitutes a crime in terms of Turkish Criminal Law.
It is usually carried out by selling vehicles for amounts higher than the value of the vehicle in order to gain unfair profit by manipulating the odometer by people who have made a profession of buying and selling vehicles. The importance of who the seller is manifests itself in terms of the case.
THE CONCEPT OF SHAME AND HIDDEN SHAME
The concept of defect is used to describe the deficiency in the ordinary features of a good from a legal point of view. It is a situation that significantly complicates or eliminates the use of the good. Hidden Shame, on the other hand, is a type of shame that is not noticed at first and then emerges. Article 8 of the Law on Consumer Protection. In the article, defective goods are defined as follows: “Defective goods are goods that are contrary to the contract at the time of delivery to the consumer because they do not comply with the sample or model agreed by the parties or do not have the characteristics that they should have objectively.” Due to the fact that the reduction of the vehicle mileage was understood later, the Court of Cassation accepts that the defect in the vehicle with the reduced mileage is a hidden defect. According to Article 223 of the TCO, “The buyer is obliged to review the condition of the sold property as soon as possible according to the ordinary course of business, and if he sees a defect in the sold property that requires the seller’s responsibility, he must notify him within an appropriate time. If the buyer neglects to review and notify, he is deemed to have accepted the sale. However, if there is a defect in the sold product that cannot be revealed by an ordinary examination, this provision does not apply. If it subsequently becomes clear that such a defect exists, it must be reported to the seller immediately; If it is not notified, it is deemed to have been accepted with this defect sold.” As can be seen, when there is a hidden defect, the seller should be notified immediately. It is also accepted that this notice can be made verbally. It can be proved by any kind of evidence, including witnesses. It doesn’t matter when the car’s odometer is lowered.
BUYER’S RIGHTS OF CHOICE
According to Article 227 of the TCO: In cases where the seller is responsible for the defects of the sold, the buyer may use one of the following optional rights:
- Rescinding the contract by declaring that you are ready to return what has been sold.
- Retaining what is sold and asking for a discount on the sale price in proportion to the defect.
- Requesting free repair of the sold item at the seller’s expense, unless it requires an excessive expense.
- If possible, do not request that the sold one be replaced with a similar one without defects.
In addition, the buyer has the right to demand compensation from the seller for the damage incurred during this process. In the event that the aforementioned situation occurs, the right to withdraw from the contract or to request a discount in the price is generally used.
LITIGATION PROCESS
As we have stated, when the buyer learns of the defect, he must inform the seller of the defect and the optional right he wants to use. If the seller does not take the necessary actions, the buyer must file a lawsuit.
The court in charge varies depending on who the seller is. If the vehicle is purchased from a merchant or car dealership who is constantly engaged in the buying and selling business, the court in charge is the Consumer Court. However, if the seller is a person who is not interested in this business in terms of profession, the court in charge is the Civil Court of First Instance.
“Article 73 of Law No. 6502 stipulates that all kinds of disputes related to the implementation of this law will be dealt with in consumer courts. When the concrete case is evaluated, it is understood that the defendants did not make a profession of selling vehicles, in this context, the defendants were not sellers as defined in the law, and the relationship between the parties was outside the scope of Law No. 6502. As such, it is not the Consumer Court but the General Courts that are in charge of hearing the case. The regulations related to the duty are related to public order and are observed ex officio at every stage of the proceedings, even if the parties do not put forward them. There is no vested right in matters related to the task. In that case, while the court should have decided the case in its capacity as a general court, the establishment of a judgment in its capacity as a consumer court is contrary to procedure and law and is a ground for reversal.” Court of Cassation 13th HD 2017/2916 E. , 2017/3730 K.
As of Article 231 of the TCO, the buyer’s period for filing a lawsuit is 2 years. However, if the seller has tampered with the odometer himself and caused the buyer to buy the vehicle with his gross negligence, the statute of limitations does not apply.
The buyer must file the lawsuit against the person who sold him the vehicle. Even if the person who played with the odometer is not the seller, the lawsuit is filed against the seller. The seller also has the right to sue against the previous seller.
” The plaintiff claimed that he saw the vehicle subject to the lawsuit on the website, that it was stated in the advertisement that the vehicle was 130000 km, that he purchased the vehicle on 15.08.2011 for 20.900.00 TL, that when he took the vehicle for inspection on 22.09.2012, he learned that the mileage of the vehicle was 152.086 and that the mileage was 178.309 on the previous inspection date, and requested the refund of the sales price. The defendant prayed for the dismissal of the suit.
The court decided to dismiss the case; The judgment was appealed by the plaintiff.
… It is stipulated that even if the seller does not know about the existence of these defects, he will be responsible for them. The buyer has the right to withdraw from the contract by declaring that he is ready to return the sold thing by notifying the defect, to retain the sold thing and request a discount from the sales price in proportion to the defect, to request the free repair of the sold item at the seller’s expense if it does not require an excessive expense, and if possible, to request that the sold one be replaced with a similar one without defects. In the present case, the plaintiff filed the present suit for refund of the sale price, alleging that the vehicle purchased on 15.08.2011 was defective due to the fact that its mileage had been tampered with. The defendant argued for the dismissal of the case. The court decided to dismiss the case. In the expert report received, it was determined that the vehicle subject to the lawsuit was sold with a hidden defect due to the fact that its mileage was reduced. In that case, while the court should have evaluated the evidence of the parties and decided according to the result, the establishment of a judgment in writing is contrary to procedure and law and requires reversal.” Court of Cassation 13th HD 2015/7985 E. , 2016/14765 K.
CRIMINAL LIABILITY
Reducing the mileage constitutes the crime of fraud within the scope of the TCK. According to Article 157/1 of the Turkish Penal Code, “A person who deceives a person with fraudulent behavior and provides a benefit to himself or someone else to the detriment of him or someone else is sentenced to imprisonment from one year to five years and a judicial fine of up to five thousand days.”
When the crime is learned by the Public Prosecutor, a public lawsuit is opened. Reducing the mileage constitutes a qualified form of fraud. The part that relates to the current offense is as follows:
Article 158 of the TCK – (1) The crime of fraud:
f) By using information systems, banks or credit institutions as tools,
g) By taking advantage of the convenience provided by the press and broadcasting tools,
h) During the commercial activities of persons who are merchants or directors of the company or act on behalf of the company; Within the scope of the cooperative’s activity, the managers of the cooperative,
If it is committed by self-employed persons by abusing the trust placed in them due to their profession, imprisonment from three to ten years and a judicial fine of up to five thousand days are imposed.
“Defendant A…’ has a 2006 model … that the brand and its vehicle of about 125,000 kilometers were sold to the witness R… on 11.01.2010 for a price above its value after reducing it below 100,000 kilometers by tampering with its indicator, that the witness R… sold the same vehicle to the complainant M… under the notary sales agreement dated 22.03.2010, that when the complainant took the vehicle to the auto mechanics he knew and had it checked superficially, they said that there was no problem, and that the vehicle broke down after a while after he started driving the vehicle. In the incident, where it was claimed that he took it to a special service and learned that the real mileage of the vehicle was around 130,000, according to the statements of the accused, witnesses and complainants, vehicle maintenance invoices and the entire scope of the file, there was no inaccuracy in the admission that the act constituted the crime of fraud, and the defendant reduced the odometer, which is high in a way that cannot be understood by a simple examination and can only be determined as a result of technical examination, by technical intervention and the real value of the vehicle having sold it on and D… The witness, who is a salesman, R… In view of the fact that the vehicle has stated that its mileage was 125,000 at the time of purchase of the vehicle as a trade-in and has submitted the appraisal report issued in this regard, the impugned sentiment has not been entertained.” Court of Cassation 23rd CD 2015/72 E. , 2015/1029 K.
