Today, with the spread of second-hand vehicle sales, the need to determine the scope and limits of liability for defects in vehicles has arisen. In this context, in this information note, the concept of defect, the responsibility for the defect and the optional rights of the buyer will be mentioned.

THE CONCEPT OF DEFECT

Defect can be defined as the absence of qualities that significantly reduce or eliminate the value of the sold item in terms of its intended use and the expected benefit from it in terms of the qualities that the seller has notified to the buyer in the sold item. In this case, liability arises from the defect. Likewise in Article 8 of the Law on the Protection of the Consumer the concept of defect is arranged in a similar way. In our law Liability for defects is explained in Article 219 of the Turkish Code of Obligations (“TCO”). The seller is responsible for the defect.

Article 219/2 of the TCO states that “The seller is responsible for these defects even if they are not aware of its existence.” As it is clearly understood from the provision, the seller is responsible for the defect. As a matter of fact, this situation was stated in the decision of the 13th Civil Chamber of the Supreme Court case number 2016/4472 and decision number 2018/6303 “…The vehicle subject to sale is legally defective. Even if the seller does not know about the existence of defects, he is responsible for them…”

Defect can be defined as the lack of material, economic and legal qualities in something that is sold. Two kinds of defect can be mentioned. These are: open (apparent) defect and hidden defect. While the obvious defect is the defect that the buyer can detect with his senses when the purchased item is received, the hidden defect is the defect that cannot be determined at the first examination but emerges over time.

FUNDAMENTAL CONDITIONS OF LIABILITY FOR DEFECT

• The thing sold must be defective,
• The buyer should not know about this defect,
• The buyer should not have accepted the defective goods,
• The defect must be present before the damage passes to the buyer.

TERMS OF LIABILITY FOR DEFECT IN SECOND-HAND VEHICLE

In order for the seller to be responsible for the defect in second-hand vehicle sales, this defect must be hidden. For the defects that the buyer can see by examining the sold item sufficiently, the seller is liable for the defect if the buyer also undertakes that there is no such defect.

BUYER’S REVIEW OF SOLD ITEM

As it is understood from the Supreme Court’s jurisprudence on the scope of the buyer’s review of the sold item in second-hand sales, it is sufficient for the buyer to examine the sold item with his senses. As a matter of fact, this situation is explained in the decision of the 13th Civil Chamber of the Supreme Court, case number 2016/26690 and decision number 2019/9299, “…The dispute between the parties arises from the provisions of liability for defects regulated in Articles 219 and the following of the Turkish Code of Obligations No. 6098. The plaintiff has no obligation to examine the records kept by the Traffic Branch Directorate, the insurance records of the vehicle, TRAMER records, and to obtain information by sending an text massage to TRAMER regarding the vehicle he has purchased…”

In order to be liable for the defect, the buyer is not obliged to examine the TRAMER records, traffic records and insurance records of the sold.

A few of the most common defects in second-hand vehicles such as;

• Brake system malfunctions
• Oil system malfunctions
• Defects in the chassis
• Fuel problems
• Hidden damage to the vehicle
• Vehicle features not working properly
• The replacement of parts of the vehicle, the seller is responsible for the defects.

In the decision of the Supreme Court of Appeals General Assembly case number 2020/35 and decision number 2021/317 “…14. It is uncontested that the defect is hidden. It is appropriate for the plaintiff consumer to use his right to replace the brake system, which is of vital importance for him, with a double, arising from the Law on the Protection of the Consumer, since it constitutes a hidden defect in the vehicle. The plaintiff purchased the vehicle relying on the brake system. His confidence was shaken and his expectation from the vehicle was negatively affected. It cannot be said that the preference in this direction is against the principle of honesty and that the right is abused. The local court’s resistance in this direction is correct…” it was stated that the seller is responsible for the hidden defect in second-hand vehicles.

ELECTIONAL RIGHTS OF THE BUYER AGAINST DEFECT

Optional rights of the buyer against the defect are expressly regulated in the Article 227 of the TCO, as follows;

• Returning from the contract by declaring that it is ready to return the sold item.
• Withholding the sold item and asking for a discount on the sales price at the rate of defects.
• Requesting free repair of the sold item at the seller’s expense, unless it requires an excessive cost.
• If possible, it is to request that the sold product be replaced with a non-defective one.

The buyer reserves the right to claim compensation in accordance with the general provisions. The seller may prevent the buyer from exercising his optional rights by immediately giving the buyer a free copy of the same product and by removing all the damage he has suffered.

If the buyer uses his right to withdraw from the contract, if the situation does not justify this, the judge may decide to repair the sold item or to reduce the sales price. If the defect in the value of the sold item is very close to the selling price, the buyer can only use one of the rights to withdraw from the contract or to request that the sold item be replaced with a non-defective one.

TIME BAR

Liability arising from the defect is subject to the statute of limitations. The time bar is for two years.

Limitation on liability arising from a defect Article 231 of the TCO states that “Unless the seller undertakes for a longer period, any lawsuit regarding the liability arising from the fault of the sold is time-barred by two years from the transfer of the sold item to the buyer, even if the defect in the sold item occurs later. The right of defense arising from the defect notified by the buyer within two years starting from the transfer of the sold item to him does not disappear with the expiration of this period. If the seller is seriously defective in transferring the sold item as defective, he cannot benefit from the two-year statute of limitations.” formatted.

We have outlined the seller’s responsibility for defects in second-hand vehicle sales, whilst the second-hand vehicle sales are becoming more and more common each day. You can contact us here for detailed information on the subject. You can get detailed information about the work of our office in the field of Consumer Law and Contracts Law on our website.

Selinsu KÜLÜK (Apprentice Attorney)

Uçar Law & Consultancy Office