ABSTRACT
If good which is a subject of sales contract has a defective, It is provided that seller is under obligation against the defectives of good. Buyer has to review the goods and notify to seller about the defectives which it is uncovered during inspect in order to use legal rights provided in TBK and TTK. Besides, in the event of not performance of this notification obligation, it is pointed out that the buyer loses these legal rights. In this study, it is examined these two tasks without animal sales. The study intends to detect time, place, content, etc. which are important to perform to these tasks. In addition, this study includes legal characters of provision of TBK, TTK and these tasks.
GENERALLY
In Turkish law, it is accepted that the seller has some obligations other than transferring possession and ownership of the subject of the sale to the buyer. As regulated in the Turkish Civil Code (TCC) and other relevant legislation, the seller will also be liable for defects in the sold goods if the conditions set forth in the law are met. Defect can be defined as a loss of quality/appropriateness due to the absence of the characteristics that should naturally be present in the goods or that the seller has promised. The seller’s liability extends to defects that existed in the goods before the risk passed to the buyer, or that occurred before a certain time limit. In other words, the seller is liable because they did not fulfill their performance properly and in accordance with the contract. In this study, we will not examine the seller’s liability for defects comprehensively, but we will focus on the buyer’s obligations regarding inspection and notification of defects for the seller’s liability to arise. We will attempt to present which laws regulate these two elements, their purposes, and their legal characteristics, along with discussions in legal doctrine. Then, we will examine the conditions necessary for fulfilling the inspection and notification obligations properly.
A) Related Legislation
The responsibilities of inspection and defect notification, which is the main topic of my study, is primarily regulated by Article 223 of the Turkish Civil Code (TCC). This regulation, introduced for movable sales, will also be applied analogously to immovable sales in accordance with Article 246 of the TCC.
“Upon taking possession, the buyer must inspect the sold item as soon as circumstances allow for ordinary course of business and if they detect any defect that gives rise to the seller’s liability, they must notify the seller within a reasonable time.
If the buyer neglects to conduct the inspection and make the notification, they shall be deemed to have accepted the sold item. However, this provision shall not apply if there is a defect that cannot be discovered through ordinary inspection. If such a defect is later discovered, it must be immediately notified to the seller; otherwise, the sold item shall be deemed to have been accepted with this defect.” (TCC – 223)
With this provision, the buyer is obliged to inspect the sold goods they have taken delivery of within the time periods prescribed by the law. In order to hold the seller liable for the defects detected during this inspection, the buyer must also notify the seller within the timeframes stipulated in the law. Otherwise, the buyer will be deemed to have accepted the defective goods.
The legislator has established specific provisions for consumer transactions under the Consumer Protection Law No. 6502 (CPL) Article 10, and for commercial transactions under the Turkish Commercial Code No. 6102 (TCC) Article 23/1-c. These provisions are as follows:
“If the defect in the goods is clearly visible at the time of delivery, the buyer must notify the seller within two days. If the defect is not clearly visible, the buyer must inspect or have the goods inspected within eight days after taking delivery, and if the defect becomes apparent during this examination, the buyer must notify the seller within this period to protect their rights. In other cases, the second paragraph of Article 223 of the Turkish Civil Code shall apply.”
(TCC– 23/1-C)
With this regulation, there are differences in terms of obvious defects and defects that will be detected through inspection compared to the provisions of the Turkish Civil Code (TBK). Unlike the flexible provisions of the TBK, fixed periods are prescribed for commercial transactions. As for hidden defects, there will be no difference as the reference is made to the provisions of the TBK. However, whether a person is a merchant or not may affect the interpretation of the term ‘immediately’ in the specific case.
In consumer transactions, there is no provision in the Consumer Protection Law (TKHK) that imposes an inspection burden on the buyer. The previous provisions related to the notification burden have also been removed. The inspection and defect notification regulated by the TBK should not be applied analogously to consumer transactions, even if it is compared, because the legislator’s omission of these obligations in the TKHK should be interpreted as the removal of such responsibilities from the perspective of the debtor.[1] The relevant provisions in the Consumer Protection Law (TKHK) are as follows:
“Defects that arise within six months from the delivery date are presumed to have existed at the time of delivery. In this case, the burden of proof that the goods were not defective lies with the seller. This presumption does not apply if it contradicts the nature of the goods or the defect.
If the consumer is aware of the defect at the time of the conclusion of the contract or it is expected that the consumer should be aware of the defect, there is no non-conformity with the contract. In cases other than these, the consumer retains the right to choose among the available remedies for defects.” (TKHK – 10)
“If a longer period is not specified in the laws or the contract between the parties, liability for defective goods is subject to a two-year statute of limitations from the date of delivery of the goods to the consumer, even if the defect arises later. However, this period is five years for real estate properties used for residential or vacation purposes, starting from the date of delivery of the property.
Except for the third paragraph of Article 10 of this Law, the seller’s liability for defective goods in second-hand sales cannot be less than one year, and for real estate properties used for residential or vacation purposes, it cannot be less than three years.
If the defect has been concealed with gross negligence or fraud, the statute of limitations provisions does not apply.” (TKHK – 12)
Indeed, within the two-year statute of limitations period, the buyer can choose among the available remedies for defects without necessarily having to make a defect notification or inspection. By notifying the seller of their chosen remedy, the buyer can hold the seller responsible for the defect. However, in certain cases, if the consumer discovers the defect at the time of delivery or within a similar short period but decides to exercise their rights towards the end of the statute of limitations period, the provisions of Turkish Code of Obligations (TMK) Article 2 may become applicable depending on the circumstances of the specific case.[2] If there is gross negligence or fraud on the part of the seller in the specific case, the statute of limitations provisions would not apply.
Within the first 6 months from the delivery date, a presumption in favor of the buyer has established. Any defects that arise during this period are presumed to have existed in the goods from the beginning, and the burden of proof lies with the seller if they claim otherwise. In other words, the seller needs to prove that the defect did not exist at the time of delivery if they want to challenge the buyer’s claim.[3]
The legislator imposes the burden of inspection and defect notification on the buyer through Article 223 of the Turkish Civil Code (TBK). Considering the principles of freedom of will and contract, the provisions of the TBK are essentially complementary in nature. The burden of defect notification and inspection is considered a default legal rule and is not imperative.[4] This interpretation can also be derived from the interpretation of Article 196 of the Turkish Code of Obligations (eTB).[5] According to this provision, in cases of fraud by the seller, any conditions that eliminate or restrict the seller’s liability for defects would be null and void. Therefore, within certain limits, the parties can decide on different terms from the relevant provisions.
If the limitation of liability results in the burden of inspection and notification, the relevant provisions are preserved; however, the parties have the possibility to lighten or even eliminate the burden of inspection and notification, subject to the relevant provisions. In this regard, the parties are considered to have the ability to determine the form and scope for the fulfillment of these burdens or to attach them to clear (relatively short or long) periods.
Any provisions that make it difficult for the buyer to fulfill the burden of inspection and notification would also change the conditions of the seller’s liability for defects; therefore, the same validity conditions apply to such provisions. Consequently, provisions that the seller knows or should know about the defect (not informing the buyer) will not be effective Moreover, if the contract includes provisions that significantly hinder the buyer’s fulfillment of the relevant burdens, such as setting strict form and time conditions, this situation may be considered as a provision that exempts the seller from liability, and in such cases, Article 115 of the Turkish Code of Obligations should be taken into consideration.[6]
B) Purpose of the Regulation
It is evident that the buyer should have certain rights against the seller who fails to perform the contract properly, in other words, who performs defective performance. However, the legislator has not directly granted the buyer the rights under TBK Articles 227 and onwards in the case of defective performance. While the legal nature of this issue is subject to debate in the doctrine, the legislator has required the buyer to undertake certain actions (inspection and defect notification). Although the buyer is regulated to perform inspection and defect notification when the contract is violated against them, failure to comply with these requirements may result in losing the rights provided under TBK Articles 227 and onwards. For these reasons, it is crucial to determine the content of the inspection and defect notification that the legislator has required the buyer to fulfill, and it is important to ascertain how, with whom, and under what conditions these actions can be performed. As per TMK Article 1, the application of this provision requires more than literal interpretation; the purpose of introducing this regulation needs to be determined. Conducting a study in this direction will also facilitate the legal classification of the concepts of inspection and defect notification.
Turkish Law of Obligations is generally based on the principle of fault liability. However, one of the exceptions to this rule is cases of strict liability, which can be accepted when specifically regulated by the law. One of these exceptions is the provisions related to defects in the sale of goods. The seller’s liability for defects does not require proof of fault. According to one view[7] in legal doctrine, based on this situation, it is argued that the purpose of introducing TBK Article 223 is to mitigate causal liability. This is because the seller is held liable even if they are not aware of the existence of the defect due to the severe consequences of strict liability. Consequently, it can be inferred that this provision aims to balance the heavy burden of strict defect liability against the seller. In other words, when TBK Article 223 is considered to be introduced for this reason, its purpose is to protect the interests of the seller.
The criticisms of this view is the notion that TBK Article 223 cannot be solely explained as a means to alleviate the seller’s exposure due to strict liability. When it is assumed that the legislator’s intention was to alleviate the heavy consequences imposed on the seller, rather than having a provision like TBK Article 223, which can be precarious for the buyer, the acceptance of fault liability or the possibility of escaping liability could have been a more appropriate approach, better suited to achieving a balance of interests between the parties. [8] This is because if the buyer fails to fulfill the burden of inspection and notification properly (except for the exception stated in TBK Article 225), they lose all rights arising from the defect. Considering that the buyer in a sales contract would typically not be a merchant, the current situation rather places the seller in a dominant position vis-à-vis the buyer, rather than truly alleviating the seller’s burden.[9]
Another view[10] in legal doctrine suggests that this provision aims to ensure transaction security and, at the same time, to achieve clarity in the relationship between the parties and prevent difficulties of proof. With TBK Article 223, the seller is compelled to have the buyer inspect the delivered goods within a short period, such as ‘in the ordinary course of business’ / ‘within a reasonable time’ / ‘immediately’ / ‘within 2 days’ / ‘within 8 days’, and to notify the seller if there is a defect and that the goods are not accepted. If no notification is made, it is assumed that the goods are accepted. Thus, the seller gains the opportunity to learn whether the goods are accepted by the buyer without being subject to the buyer’s discretion, in a short period of time. With this provision, the seller gains the ability to intervene in the defect before any further damage occurs. This is because the seller not only becomes aware of the buyer’s non-acceptance of performance but also gains information about the nature of the defect. Another argument put forth by this view is that these obligations and achieving clarity in the relationship between the parties will prompt the buyer to act quickly in exercising their rights and prevent the seller from being left vulnerable to market fluctuations and speculations in favor of the buyer.
Various criticisms have been raised against this view. The first criticism is that the purpose of the provision is not clear when referring to “ensuring transaction security benefit.” [11] Additionally, the argument that this provision protects the seller from market fluctuations and speculations cannot be justified. This is because although the buyer has the right to make a defect notification and exercise their rights, they are not obliged to do so. The buyer can choose among their rights within the time limits specified in TBK Article 231 after making a defect notification. [12] Another point of criticism is related to achieving clarity in the relationship between the parties and establishing a fair balance between the seller and the buyer. Similar to the first criticism, it is argued that the possibility of the buyer losing all their rights due to failure to fulfill the obligations would lead to an imbalance between the seller, who acted in breach of the contract, and the buyer, who suffered due to the defective delivery. The idea of ease of proof put forward by this view is important. This perspective[13] allows for the interpretation that the provision is introduced in favor of the buyer, not the seller. According to this view, the damage and benefit from the delivery of the goods pass to the buyer under TBK Article 208.[14] TBK Article 223 allows the buyer to have the opportunity to prove that the goods were defective before the delivery by inspecting the goods after delivery and making a notification.
The argument that TBK Article 223 is introduced to protect the seller’s interests due to the onerous conditions of strict liability and thereby balance the relationship between the parties is not valid. The seller has no reasonable interest that would justify the risk of the buyer losing all their rights as a result of this provision. The argument of transaction security also does not justify the necessity of making defect notifications to exercise the rights arising from defects. However, it is also not entirely accurate to claim that the provision is introduced in favor of the buyer. The burden of proof being on the buyer and the sanctions they may face if they fail to fulfill the obligations cannot be easily compared with the alleged benefit. When examining the legal consequences of the provision, it becomes evident that the purpose is to protect the seller’s interests and achieve balance. Nevertheless, it does not necessarily mean that the provision should be interpreted in favor of the seller in specific cases, especially non-commercial buyers.
Above, I attempted to convey the views and criticisms presented in legal doctrine. In conclusion, rather than supporting a specific view or determining the purpose of the law, it is essential to consider these debates when interpreting the relevant provisions.
LEGAL NATURE
A) Characterization of the Review
In legal doctrine, several views have been put forward regarding the legal nature of the inspection (gözden geçirme). One view[15] in legal doctrine categorizes this concept as an obligation. Technically, inspection is not an obligation itself; rather, it is an ancillary obligation that the buyer must fulfill in order to exercise their rights arising from the law. The sanction for non-fulfillment of this obligation is the extinguishment of the seller’s liability; in other words, the buyer’s inability to exercise their rights.
If inspection is accepted as an obligation, then the opposing party to the contract (seller) should also have the right to demand fulfillment of this obligation. [16] However, it is not accepted that the seller has the right to demand inspection. This incongruity is explained by the concept of “ancillary obligations.” Since ancillary obligations do not have an independent existence, it is not accepted that the opposing party has a right to demand fulfillment. Even if this problem were solved, it is still argued that the concept of inspection does not meet the elements of an obligation and does not lead to the consequences of a breach of obligation. In the case of non-fulfillment, the seller does not acquire the right to claim damages, and the buyer loses their rights stipulated by the law. For these reasons, this view, in my opinion, is not well-founded.
Another view advanced in doctrine suggests that inspection is a condition precedent or a formal condition for the buyer to exercise the rights granted to them by the defect provisions.[17] If the buyer fulfills this formal condition, they can exercise their rights. Otherwise, they will be deemed to have accepted the goods as they are, and the seller will be released from the liability for defective performance.
According to the last view in doctrine, inspection is considered a burden (külfet).[18] Looking at the definition of burden in legal doctrine, a burden is the consequence of not fulfilling an action required by the law, leading to the person losing rights granted by the law.[19] Based on this definition, it is evident that non-performance of the inspection places the buyer in a weaker position, and they lose the rights granted to them by the law. However, this statement might be incomplete. Can it be argued that the buyer definitively loses their rights arising from the defect if they do not perform the inspection? Some authors who emphasize this inadequacy put forward the view of a “weakened burden.”[20] They argue that if the buyer, by chance or in some other way, becomes aware that the delivered goods are defective and makes a timely defect notification, they can still preserve their rights. Therefore, according to this perspective, inspection is a burden (külfet) related to making a defect notification.
By fulfilling the burden of inspection, the buyer will determine whether the goods possess the promised or legally required qualities. By doing so, they can proceed with a defect notification if necessary. As can be observed, inspection is essential for the defect notification. However, despite this necessity, in specific cases, the defect notification can be made without conducting the inspection. According to TBK Article 223/2, the assumption that the buyer accepted the goods cannot be asserted if a defect notification is made. Therefore, in my opinion, inspection should be categorized as a burden (külfet) related to making a defect notification, or more specifically, a weakened burden (zayıflatılmış külfet).
B) Characterization of the Defect Notification
There are two debates in legal doctrine regarding the defect notification (ayıp bildirimi). The first debate concerns whether defect notification is an obligation, a prerequisite, or a burden. The view considering it as an obligation has been explained in the previous section, so it will not be further elaborated. According to those who argue that it is a prerequisite[21], the law has introduced a formal condition for the buyer to exercise their rights against the seller. This way, the buyer’s access to these rights is made more difficult, and the aim is to strengthen the seller’s position. If the buyer fails to notify the defects to the seller as required by the law, they will lose their rights arising from the defects.
The second view[22] in legal doctrine considers defect notification as a burden. When the buyer fails to fulfill this burden, they are deemed to have accepted the defective goods, resulting in the loss of their rights arising from the defects. Considering the explanations about the legal nature of the burden, it is defined in doctrine as follows: “It is an obligation that the legislator requires to be fulfilled but does not grant any claim or compensation right to the opposing party; however, non-fulfillment leads to the loss of rights.” It can be easily observed that this definition aligns with defect notification. In case of non-performance of defect notification, the debtor (buyer) neither has any claim right nor any compensation right. As a result, the buyer realizes that their position weakens, and they lose the rights acquired due to the defect.[23]
The second debate in legal doctrine arises from different characterizations of defect notification, such as a legal transaction, legal transaction-like act, and concept of “tasavvur” (conception).[24] The view stating that it is a “tasavvur” emphasizes that the fulfillment of the burden does not require the buyer’s will. Since will is not sought, the rules regarding incapacity do not apply. According to this view, defect notification is about informing the other party about the defect. Some proponents of this view further divide it based on when the fulfillment of the burden is established. Some authors consider the moment of delivery as the starting point. This acceptance of the burden might harm the buyer’s interests since the burden is to declare the existing condition, and it does not require the arrival of the declaration. Other authors assert that the moment of defect notification’s transmission should be regarded as the fulfillment of the burden.
The view[25] considering it as a legal transaction argues that, like an offer and acceptance, defect notification is also a legal transaction. To fulfill the burden, the buyer must have discernment and transmit it to the other party on time. If it is accepted as a legal transaction, the result arising from the defect notification will be the legal consequence directed by the buyer’s intention when making the notification.
Another view[26] characterizes defect notification as a legal transaction-like act. Therefore, whether the notification is valid or not can be understood by analogously applying the validity conditions of legal transactions. [27] This view implies that defect notification is not merely about informing the seller about the existing defects; it also includes the buyer’s intention not to accept the goods. In contrast to the “tasavvur” explanation, which does not seek the buyer’s intention not to accept, the characterization is different as it requires the buyer’s will.
Emphasis should be placed on the “tasavvur” explanation. It should be characterized with this perspective, considering that the defect provisions are introduced to protect the buyer’s interests. The legislator aims to require the notification of defects, and this burden aims to provide the seller with information about the defects. As the essence of defect notification revolves around the seller being aware of the defects or not, categorizing it as a legal transaction would be unfavorable to the buyer. If it were regarded as a legal transaction, the seller could benefit from the assumption of acceptance of defects even if they become aware of the defects, but the defect notification does not meet the validity conditions of legal transactions. Moreover, if it were to be characterized as a legal transaction, the existence of the buyer’s intention not to accept would be required, even though it is not foreseen in the defect notification provision. I disagree with interpreting a provision that might have significant consequences against the buyer as being in favor of the seller, and the defect notification provision should not be construed to require a statement of non-acceptance not foreseen in the law. Considering the burden from the perspective of “tasavvur” seems to be more appropriate.
FULFULLMENT OF THE REVIEW OBLIGATION
In Turkish Sales Law, in order for the buyer to resort to the provisions regarding defects, they must comply with the burden of examination and notification. Although the legislator mentions these two elements, they do not provide specific definitions for them. The concept of examination (gözden geçirme) in legal doctrine refers to activities related to whether the factual conditions for the liability arising from defects in the specific case have been met. Therefore, the subject of the examination activity is to determine whether the goods possess the qualities that the seller has indicated/promised or that are expected according to the principle of good faith. In this context, I will examine the concept of “examination.”
According to the law, the buyer is burdened with the examination of the goods at the time of delivery and transfer. In other words, the buyer is under the obligation to conduct an examination to determine whether the promised or expected qualities of the goods exist when the risk passes to them. This abstract regulation requires clarification in concrete cases to determine under which circumstances it would be considered fulfilled. To do this, it is necessary to examine who will carry out the examination of the goods, where it will take place, the scope and duration of this burden, and the level of care that should be exercised.
A) Persons Responsible for the Review
First of all, it should be examined where and by whom the buyer’s examination can be conducted. According to the law, the burden of examination lies with the buyer, and they are required to personally fulfill this obligation. However, the buyer may also delegate this burden to another person. [28] The reasons for delegation could include the size of the buyer’s business, the agreement between the buyer and the seller, the type, size, nature, and quantity of the goods subject to the contract, or personal reasons related to the buyer (such as lack of discernment, illness, the goods being located in a place other than the delivery location, etc.). [29] In practice, the buyer may choose to delegate the examination to a third party or an expert if they are not in a position to fulfill the burden themselves. Even if the goods are visibly defective, the buyer may fail to detect the defects and consequently not make the necessary defect notification, which could result in a loss of rights. Therefore, the buyer may opt to appoint a third party or an expert to carry out the examination to avoid such situations. It is essential for the buyer to exercise due diligence while fulfilling the burden of examination, and if they face difficulties in conducting the examination themselves, delegating the task to a competent person or expert could be a viable solution.
It is rightly emphasized in the doctrine that the relationship between the buyer and the person who will conduct the examination cannot be represented as a legal representation due to the nature of examination being a material act. According to Article 40 of the Turkish Code of Obligations (TBK), the representation relationship is limited to legal transactions. In the case of agency relationships, as stated in Article 502 of the TBK, the agent undertakes to perform a task or conduct a transaction on behalf of the principal. Therefore, the relationship between the person conducting the examination and the buyer is an agency relationship. The third person is acting as the buyer’s agent. If the agent fails to fulfill the burden of examination on time and properly, the buyer will bear the consequences. However, the buyer’s rights against the agent are preserved. [30]
In other words, if the buyer delegates the burden of examination to an agent and the agent fails to carry it out correctly and on time, the buyer will still be held responsible for any resulting consequences. However, the buyer retains the right to take legal action against the agent for any damages caused by the agent’s failure to perform the examination properly. The agent’s actions do not absolve the buyer of their obligations, but the buyer has the right to seek redress from the agent if they suffer harm due to the agent’s negligence or failure to act diligently.
Indeed, in certain circumstances, it may become necessary for the buyer to appoint an agent for the examination of the goods. The buyer’s choice to appoint an agent can be considered a requirement for fulfilling the burden of examination properly, especially when the complexity of the goods or the lack of expertise or experience on the part of the buyer necessitates seeking specialized assistance.
For example, in the case of a prudent merchant, it is assumed that they have sufficient knowledge and experience regarding the goods they purchase, and they are expected to conduct a more thorough examination. However, if the merchant lacks the necessary qualifications, engaging an expert or a third party with relevant expertise becomes imperative.
B) Place of the Review
There is no explicit provision in the Turkish Sales Law regarding where the examination should take place. However, as stated in the law, the examination should be carried out within a short period after delivery. Therefore, the prevailing view in doctrine is that, in the absence of any contrary agreement between the parties, the examination should generally take place at the location where the goods were delivered and came under the buyer’s physical control.[31] Nevertheless, it is also acknowledged that there may be exceptions to this rule.
The most basic exception occurs when the parties explicitly or implicitly agree on the place of examination during the formation of the contract or afterward. Implicit agreement may arise from the nature of the goods or from the buyer’s communication to the seller at the time of contract formation. For instance, if the goods are in their original packaging or if the seller agrees to send the goods directly to the buyer’s customer without inspecting them[32], it may be assumed that examination will take place upon delivery to the customer.[33] If the parties do not specifically determine the place of examination, they may grant the authority to determine it to one of the parties, most likely the buyer. The party exercising this authority can inform the other party and designate a location other than the place of delivery for the examination. The buyer may carry out the examination at a place of their choosing without the other party’s involvement, provided that the relevant time limits are not violated. However, in such cases, the time for examination will begin from the date of delivery.[34]
The examination may also take place at a location other than the place of delivery due to specific circumstances of the case. This can be because the physical facilities at the place of delivery are unsuitable or lack the necessary technical equipment. Additionally, it may be related to the specific characteristics of the delivered goods. [35] For example, if the goods are in a disassembled state and cannot be examined in that condition, the examination may occur at a different location.
In summary, while the general rule is that the examination should take place at the place of delivery, there are exceptions to this rule, and the specific circumstances of each case will determine the location of the examination.
C) Duration of the Review
“The buyer must examine the purchased goods as soon as possible, in accordance with the normal course of business operations.”
Turkish Civil Code Article 223 does not specify a fixed period for this obligation, and it is intended that the application of this provision should be determined by taking into account factors such as the characteristics of the goods, commercial customs, and other relevant circumstances. For this provision to be applicable in a specific case, it is necessary to determine how long the obligation should be fulfilled, and also to establish the starting point from which this period will be measured.
Firstly, for the buyer to be able to examine the goods, the goods must be within the actual control of the buyer or their authorized representative, which means that they must have received the goods[36]. However, the term “devralma” (receipt) used in the legal provision can be interpreted broadly, suggesting that the starting point of the period may not necessarily depend on the transfer of possession, irrespective of the type of possession transfer. Nevertheless, based on logical principles, the examination can only occur when the goods are physically within the control of the buyer or their representative. [37] Therefore, in cases such as delivery or assignment without actual possession, the buyer does not incur the obligation of examination until actual control is achieved. Even if the buyer has received the goods, the normal course of business operations might not allow for an immediate examination. In such cases, the period for examination begins when the conditions required for the examination are fulfilled,[38] which may arise from the nature of the goods or external factors (e.g., the necessity to transport the goods to the relevant technical material or the need for assembly before the examination). For instance, it would not be expected of someone who buys a pair of boots to examine whether they are waterproof or warm during the summer. Therefore, the examination obligation of the buyer should start with the appropriate season/weather conditions. However, any reasons arising from the buyer’s actions or circumstances do not delay or extend this period.[39]
To determine the examination period, a specific duration based on the normal course of business operations in a given situation should be considered, taking into account what an average person with reasonable knowledge and attention would spend on examining the goods. The nature of the goods is another factor that will influence the duration. Examining goods that can spoil quickly[40] or those with complex structures will not take the same amount of time as examining ordinary or simple goods.[41]
For commercial transactions, the Turkish Commercial Code Article 23/c provides a different interpretation. The law states that if the defect in the goods is apparent at the time of delivery, the buyer must notify the seller of the situation within two days. If the defect is not apparent, the buyer has eight days after receiving the goods to examine them or have them examined, and if the defect becomes apparent during this examination, the buyer is obliged to notify the seller within this period to protect their rights. In other cases, the second paragraph of Article 223 of the Turkish Civil Code will apply. If the defects can be detected through an examination, the buyer has 8 days to examine and notify the seller. If the defects are latent, the provisions of Article 223 of the Turkish Civil Code will apply, and notifying the seller within the statute of limitations period will be sufficient.”
D) Criterion of the Required Care
The buyer must examine the delivered goods with the necessary care and effort to determine whether they possess the required qualities. However, if the buyer shows the required diligence, it can be said that they have fulfilled their obligation. The criteria for the level of care required will vary in each specific case, and it will play a key role in determining the extent and scope of the examination to be conducted.
In establishing the criteria for the required care, objective standards need to be set. Therefore, a distinction is made between a trader, who is assumed to have equal knowledge and experience, and an ordinary buyer who lacks such knowledge and experience. An ordinary buyer may not notice a defect that a trader would recognize. [42] The fact that different provisions are introduced in the Turkish Commercial Code (TCC) and the Turkish Civil Code (TCC) for these two groups of buyers indicates that they have different qualities. For ordinary buyers, the doctrine suggests that the standard of care to be exhibited should be of a moderate, reasonable, and honest buyer. [43] For traders, who are expected to be knowledgeable and experienced about the goods in question, the criterion is that of an average expert in that profession. Therefore, if the personal characteristics of a trader are insufficient to meet this criterion, the doctrine indicates that they should seek assistance from an expert.[44]
E) Scope of the Review
The buyer must inspect the delivered goods with the necessary care and effort to determine whether they possess the required qualities. However, it is evident that this basic rule may not be sufficient for detecting defects, depending on the nature of the goods. Therefore, if necessary for the identification of defects, interventions such as using, operating, consuming, or processing the goods (either in whole or in part) may be required. These interventions should not be interpreted as accepting the goods. [45] Additionally, the inspection by the buyer should be directed towards the specific characteristics that the goods are supposed to have.[46]
Based on the wording of Article 223/2 of the Turkish Civil Code (TCC), it can be understood that the legislator has limited the buyer’s inspection obligation to defects that can be detected through a normal examination. .[47] Which defects can be detected through a normal examination and which ones fall outside this scope will vary depending on the status of the parties. Other factors affecting the scope of the inspection obligation are the agreement of the parties, the characteristics of the goods, commercial customs and practices, business practices, and the conditions of the specific case. [48] In cases where the scope of the inspection obligation is limited, generally, random sampling of the goods or examining their external characteristics is considered sufficient.
Random sampling may be considered in cases where there is a large quantity of goods of the same kind, and it is not possible for the buyer to individually inspect each item due to excessive cost or time constraints. [49] In such cases, the buyer’s examination of a sufficient number of randomly selected samples should be considered adequate. However, the samples selected in this way should be representative and reflect the general characteristics of the goods. If a defect is found in one of the samples, the buyer can rely on defect provisions for all of the goods.[50] If the randomly selected samples do not show any defects, but defects are found in the uninspected part, the provisions regarding hidden defects should be applied.[51]
In the case of goods such as vehicles, machinery, drugs, and food products, the seller may commit to ensuring that the goods will possess certain external qualities for a specified period. In such cases, the buyer’s examination of the external characteristics that will affect the durability of the goods, as indicated by the expiration date or warranty, should be considered sufficient to fulfill the inspection obligation.[52]
If the goods are packaged, and the quantity is not significant, and opening the package does not incur expenses, the buyer should inspect all of the goods. However, if the quantity of goods increases or the cost of opening the package rises, the inspection should be conducted using sufficient and randomly selected samples, as mentioned above. [53] Nevertheless, in some cases, even opening the packaging of randomly selected goods may lead to a loss of quality or resale capability, or incur excessive costs. In such situations, the inspection may be limited to only one sample or may rely on external examination, depending on the circumstances.
As previously mentioned, while there are cases where the inspection obligation is limited, it is also emphasized that in certain situations, it should be expanded. In the case of real estate, second-hand cars, and goods susceptible to causing harm, a normal inspection may not be sufficient to detect defects or may entail excessive risks. Therefore, special examination is required for detecting defects in such goods, and it is suggested that an expert, regardless of whether the buyer is a trader, should be involved in the inspection.[54]
F) Costs of the Review
The allocation of inspection costs may vary depending on the circumstances of the specific case. The general rule is that the buyer is responsible for the inspection expenses since it is considered part of the preparations for taking delivery of the goods, as stipulated by Article 221 of the Turkish Civil Code (TCC), unless the parties have agreed otherwise. However, in certain situations, the buyer may demand these expenses from the seller. [55] If the buyer exercises the right to return the goods due to a defect, regardless of the seller’s fault, the buyer can claim these expenses from the seller according to Article 229 of the TCC. [56]
Regarding other optional remedies, the general rule should apply, and the seller should bear these costs. However, if the buyer chooses the right to repair or replacement with a defect-free product, multiple inspection procedures may be necessary. Therefore, the additional expenses incurred can be considered as positive damages. Since claims for compensation from the seller in relation to these rights will be based on fault, in the specific case, if the other conditions are met, the buyer can also claim the additional inspection expenses.
FULFILLMENT OF THE DEFECT NOTIFICATION
To shift the seller’s liability due to defects, it is not sufficient for the buyer to fulfill the inspection obligation properly. The legislator has also imposed a duty on the buyer to notify the defects. The presumption that the buyer has accepted the defects is essentially related to the failure to fulfill the obligation to notify the identified defects. If the buyer fails to fulfill this obligation, they are considered to have accepted the defects and lose their rights arising from the defects. In the provisions of Article 223 of the Turkish Civil Code (TCC) and Article 23 of the Turkish Commercial Code (TCC), which can lead to significant loss of rights for the buyer, the notification obligation is not clearly defined, its content is not sufficiently explained, and it is not specified who should make the notification, how, and in what manner. To determine whether the obligation has been properly fulfilled, these aspects need to be examined.
A) Parties to the Notification
Before examining the content of the notification of defects, it is necessary to determine who can be the sender and receiver of such notification. Based on the wording of the legal provision, it appears that the buyer is required to make the notification to the seller. As mentioned earlier in this study, we define the notification of defects as an act of disposal. Therefore, the notification of defects, except for cases of complete incapacity, will imply that the notification has been fulfilled. [57] The principle of representation will apply to the sending and acceptance of the notification of defects. In short, as long as the buyer is not completely incapacitated or has granted representation authority to someone else, a valid notification of defects can be made by the buyer or a person authorized by them.[58] The determination of who has the authority to represent the buyer can be made based on the provisions of the Turkish Civil Code, starting from Article 40.
As a general rule, the addressee of the notification of defects is the seller of the defective goods. However, considering the explanations above, it can be understood that the notification of defects can be accepted by the seller or their representative, as long as the buyer is not completely incapacitated. In a specific case, the buyer may not know which employee of the seller has the authority to represent them. Therefore, unless the specific case indicates otherwise, notifications made to persons authorized by the seller under the sales contract should be considered sufficient for fulfilling the notification obligation.[59]
B) Timeframe of the Notification
If the buyer detects a defect that would trigger the seller’s liability, they are obligated to notify the seller within a reasonable period. Similar to the examination burden, an abstract time limit is imposed for the notification of defects. Therefore, considering different possibilities, it must be determined what constitutes a reasonable period and when this period starts.
There are different views regarding the legal nature of this period. The prevailing opinion[60] in the doctrine considers it as a statute of limitations period. Statutes of limitations automatically create legal consequences and are considered ex officio by the court. On the other hand, some authors argue that, due to the principle of party presentation in procedural law and the dependence of the period on the specific circumstances and customs of the case, considering the failure to fulfill the burden without the seller raising such claim may lead to incorrect decisions. Since the notification of defects is a declaratory act, even if the predetermined period has a statute of limitations nature, it should not be automatically considered by the court like in the case of acquisition of new rights, but rather an exception should be made so that it is taken into account if the seller does not raise it.[61]
Since the provisions related to the notification of defects can be agreed upon by the parties within certain limits, the parties can explicitly or implicitly modify or alter the relevant periods set by the law. However, this situation does not conform to the structure of statute of limitations periods.[62]
The determination of the starting point of the period depends on the type of defect. For obvious defects that do not require an examination, the notification period should start from the delivery of the goods to the buyer. Since no additional action is required to detect such defects, the expression in the legal provision naturally implies that the period begins at the time of delivery when the buyer or their representative becomes aware of the defect or is capable of becoming aware of it. In accordance with the provisions of the Turkish Civil Code regarding defects, if a hidden defect is discovered without the need for an examination, this can overlap with the condition that the defect is hidden; in this case, the buyer must notify the seller or their representative immediately upon noticing the defect from the moment of delivery.
In cases of hidden defects in the specific situation, which, by definition, cannot be detected through an examination, the notification period for hidden defects will start from the date the buyer becomes aware of the defect, provided that it does not exceed the statute of limitations for using the rights arising from the defect. [63] The legislator has regulated that if the buyer becomes aware of a hidden defect, they must notify the seller ‘immediately’, in contrast to obvious defects. In the doctrine, the term ‘immediately’ is generally understood to mean the day the defect is discovered or the following day. However, it is important not to confuse the term ‘becoming aware’ with the first signs of the defect. ‘Becoming aware’ refers to the moment when the buyer understands the nature of the defect, and the period should start from this stage.
In commercial sales, fixed periods for the notification of defects have been specified. First, a threefold distinction is made among defects. If there are defects that can be discovered without the need for examination, the notification should be made within 2 days from the delivery. If a defect that cannot be detected through an examination is present, then our explanations regarding ordinary sales will apply. If none of these two cases apply, and there is a defect that can be detected after examination, the legislator has granted the buyer an 8-day period for notification. [64] However, the latter interpretation is controversial in the doctrine. One view[65] is that the legislator has set two separate periods. The first period starts from the delivery and is intended for examination. The second period starts after the first period and is for the notification of defects. Another view[66] argues that the legislator has provided for a single period and within this period, both the examination and the notification of defects should be made. In my opinion, the legislator, by setting a 2-day period for defects that do not require examination, assumed that 2 days would be sufficient for the buyer to notify the seller in the fast-paced commercial life. Therefore, it is not logical for the legislator to add 6 more days without any reason for notification in the case of defects that require examination. Therefore, the first view should be accepted, and the buyer should examine the goods within the 8-day period and notify the seller within that period.”
C) Content of the Notification
The regulation on defects does not establish a provision regarding the content of the notification. However, when TBK 223, which regulates the notification of defects, is examined, it is clear that the main purpose of the notification is to disclose the defects on the goods and to provide the seller with information about the defects in the goods. According to TBK 231, the buyer is not obliged to specify which optional right they will exercise with the defect notification. [67] However, these optional rights can be exercised based on the defects stated in the notification. [68]
Whether the content of the notification is sufficient or not should be determined through an evaluation within the framework of the principle of good faith in the specific situation. As mentioned in the section on the burden of defect notification, this burden will be fulfilled by both traders who are presumed to have experience with the goods and by non-trader buyers who do not have sufficient knowledge. The content of defect notifications from these two types of buyers may differ. While a trader buyer may be expected to describe the defects in the goods in a way that ensures the seller takes the necessary precautions, a non-trader buyer may be sufficient in specifying the type and form of the defect that led to the rejection of the goods without having a general complaint.[69]
D) Form, Transmission, and Proof of the Notification
The provision in TBK does not address the form of the defect notification. Therefore, with the reference to TMK Article 5, TBK Articles 12 and onwards will apply in this regard.[70] According to TBK Article 12, the essential aspect is that the act is not subject to a specific form. TBK Article 17 clarifies that if the parties have agreed on a specific form, the notification must conform to that form. The situation in commercial sales needs to be examined separately. TTK Article 23 does not impose a specific form requirement for notification. However, TTK Article 18/3 imposes a form requirement for merchants, and whether this provision will apply to defect notification needs to be examined. “Among merchants, notifications or warnings related to default, termination of contracts, or rescission of contracts shall be made through a notary public, registered letter, telegram, or registered electronic mail system using a secure electronic signature.” Although this provision imposes a form requirement for notifications and warnings, it limits this requirement to three legal institutions. Therefore, in commercial sales, defect notification is not subject to a specific form. [71] Recent decisions of the Supreme Court (Yargıtay) apply TTK Article 18/3 and expect defect notification to be made in accordance with one of the forms mentioned in the provision.[72]
The question of whether the fulfillment of the burden should depend on the defect notification reaching the other party is a subject of debate in the doctrine. One view suggests that since the purpose of the defect notification is to inform the seller about the defects in the goods and the rejection of the goods, the declaration of intent must reach the other party.[73] However, another view[74] in the doctrine does not consider the defect notification as a declaration of intent that must reach the other party. Although the analogy to the concept of ‘declaration of intent’ is used in the explanations regarding conceptual descriptions, it should not be accepted for defect notification. Even though the reasoning based on the conceptual explanations applies the rules related to legal acts through analogy, the acceptance that legal acts must reach the other party should not be applied to the defect notification. Both the short time periods granted to the buyer and the provision in TBK Article 5, which considers the validity of a late acceptance declaration of intent, justify applying this acceptance to defect notification by way of comparison.
There is no rule in Turkish law that states an arrival requirement for declarations of intent. Oğuzman[75] accurately points out this matter and emphasizes that the resolution of the issue should be based on the relevant law and the consideration of the parties’ interests, taking into account the need to direct declarations of intent. When examining the provisions regarding defects, the severe consequences of not fulfilling the burden should be taken into account. Whether the buyer is a merchant or not will not cause a change in the balance of interests. A non-merchant buyer may be in a disadvantaged position due to a lack of information, while a merchant buyer is in a similar position due to short notification periods. For these reasons, the moment of sending the defect notification should be accepted as the point of fulfillment for the burden of defect notification.
In my opinion, accepting the first view would significantly disrupt the balance of interests between the buyer and the seller, as it would prevent the buyer, who was affected by the defective goods, from exercising all the rights arising from the defect, even though the defect notification was sent in a timely manner by suitable means. The purpose of the defect notification and the exercise of the buyer’s rights arising from the defect are not contingent on the defect review and notification by the buyer. These burdens are merely requirements imposed by the legislator for the buyer to hold the seller responsible. Therefore, the method of notification should be chosen by considering criteria such as time, cost, and reliability. Since the legislator has imposed the burden on the buyer to notify the seller about the defect, the choice of the suitable method of notification should also be included in this burden. If the buyer fails to make the notification by suitable means and it does not reach the other party, the buyer should bear the legal consequences of not fulfilling this burden.[76]
In consecutive delivery sales, each delivery should be evaluated separately. The time limits for the defect should also start for each delivery at an appropriate time and be sent regarding the defects identified for the delivered portion. The legal consequences of not fulfilling this burden will be limited to the relevant portion. If the buyer fails to fulfill their obligations for one portion, they do not lose their rights over the goods delivered before or after that portion; they will continue to have these rights if they fulfill their obligations.[77]
Regarding the burden of proof, since there is no specific regulation, the provisions of HMK and TMK regarding proof should be taken into account. TMK Article 6 states, “Unless otherwise provided by law, each party shall be obliged to prove the existence of the facts on which they base their claim.” Therefore, the buyer must prove that the necessary conditions for holding the seller responsible exist and that they have fulfilled the burdens that would otherwise prevent them from exercising their rights arising from the defect.
The reason for the existence of the buyer’s rights arising from the defect is not the defect review and notification by the buyer. These burdens are merely the requirements imposed by the legislator for the buyer to hold the seller responsible. The buyer should prove that they fulfilled these burdens in a timely and appropriate manner since they are the ones obliged to fulfill them.[78]
E) Exceptions to the Defect Notification
Considering the views put forth regarding the purpose of the burden of notification imposed on the buyer (such as reducing the seller’s liability for causation, ensuring transaction security, facilitating the seller’s adoption of necessary precautions, and providing ease of proof concerning defects), it cannot be justified to hold the buyer responsible with such a heavy burden when the seller knows or should know about the defect in the goods. To address this possibility, the legislator introduced TBK Article 225, and in cases where the specified conditions are met, the seller of an ordinary or commercial sales[79] contract cannot object to the buyer exercising their rights arising from defects on the grounds of not providing a defect notification. For the application of this provision, the burden of proving the seller’s fault lies with the buyer.[80]
“An gross negligent seller cannot, even partially, escape liability by alleging that the defect in the sold item was not reported to them within the required timeframe. This rule applies equally to defects that sellers, who engage in selling as their profession, should have known about” (TBK – 225)
The application of the provision will come into play when the defect in the goods is known or must be known by the seller. In the first scenario, the seller acted with intent and knowingly failed to disclose the defect to the other party and delivered the goods to the buyer.[81] If the buyer enters into the contract or accepts the relevant deficiency, there will be no breach of contract, and therefore, the seller’s liability will not be incurred. The point at which the seller’s fault in knowing about the defect should be assessed is a matter of debate. One view suggests that the provision of Article 225 of the Turkish Commercial Code (TCC) can be applied if the seller is aware of the defect until the time of delivery. The other view suggests that the provision can be applied if the seller becomes aware of the defect before the expiration of the defect notification period. In my opinion, the first view should be adopted. If the seller learns about the defect later, it cannot be deemed as a breach of due diligence obligation.
The second scenario arises when the seller is obliged to know about the defect, indicating a possibility of gross negligence on the part of the seller. In this case, the seller may not be aware of the defect, but this is due to the severe negligence of the due diligence obligation. According to Article 116 of the TCC, if the seller’s assistants are aware of the defect or should be aware of it, the same provision will also be applicable. With the provision introduced in Article 225/2, the exception granted to buyers for sellers engaged in selling as their profession is expanded, and gross negligence of the seller is not required. An objective due diligence obligation is established, and even slight negligence of the seller is deemed sufficient.[82]
LEGAL CONSEQUENCES
To exercise the rights arising from the defective goods, the buyer must make a valid defect notification. Otherwise, it will be presumed that the buyer has accepted the defects in the goods, and as a result, they won’t be able to exercise any rights arising from the defect, nor can they hold the seller liable for the defect.[83] For a defect notification to be valid, it must contain appropriate and sufficient content regarding the defect and the intention not to accept the goods, and it should be made within the specified timeframe. Once the buyer fulfills this obligation, they will be entitled to utilize the optional rights set forth in Article 227 of the Turkish Commercial Code (TCC), which are as follows:
-
- Rescinding the contract by declaring readiness to return the purchased item.
- Withholding the purchased item and demanding a reduction in the purchase price proportionate to the defect.
- If it does not require excessive expenses, demanding the free repair of the purchased item, with all costs borne by the seller.
- If possible, requesting the replacement of the purchased item with a defect-free equivalent. The buyer’s right to claim compensation in accordance with the general provisions remains reserved within the statutory time limits.
If the buyer is presumed to have accepted the defects in the goods due to their failure to make a defect notification, they will also be unable to resort to the penalty clause in the sales contract. This is because the acceptance is considered the buyer’s expression of intent that the delivered goods conform to the contract. Therefore, if it is presumed by law that the buyer has accepted the delivered goods as conforming to the contract, they cannot claim the penalty clause on the grounds that the delivered goods are non-conforming.[84]
For obvious defects, if the buyer does not inspect the goods promptly according to the normal course of business and does not make a suitable and sufficient notification within a reasonable time, they will be deemed to have accepted the defects due to their failure to fulfill their obligation. However, this situation is applicable only to obvious defects that could be noticed upon inspection. As for hidden defects, the legislator has regulated that the buyer must notify the relevant defect immediately upon becoming aware of its existence. Therefore, for hidden defects, if they are not notified shortly after being discovered within the statute of limitations period, the presumption of acceptance will apply.[85]
You should not conclude that the presumption of acceptance results in the termination of all the buyer’s compensation rights arising from general provisions. As a result of the presumption of defect acceptance, it is assumed that the buyer has declared the conformity of the relevant goods to the contract. Therefore, the compensation right under general provisions remains intact, but the buyer cannot demand damages from the seller for the items of damage that arise from the defect in the goods.
CONCLUSION
In accordance with the Turkish Commercial Code (TBK), the buyer is obligated to conduct an inspection and make a notification. Provisions have also been introduced for traders and consumers in the Turkish Consumer Protection Law (TKHK) and Turkish Commercial Code (TTK). Depending on the specific circumstances of the case, once the buyer has obtained actual control over the sold goods, they are required to examine the goods within a reasonable time. The expected level of care from the buyer and the methods to be used during the inspection may vary based on whether the person is a trader and the nature of the goods.
If, during the inspection or by any other means, the buyer becomes aware of the existence of any defects in the goods, they must notify the seller by specifying these defects. Failure to make such notification or doing so outside the specified timeframe will result in the buyer being deemed to have accepted the defects in the goods. Consequently, the seller will not be liable for any damages arising from the defects in the goods.
Author: ERENBEY GÜRBÜZ
Footnotes
[1] Aslan, İ. Yılmaz, 6502 Sayılı Kanun’a Göre Tüketici Hukuku, p.138
[2] Aslan, İ. Yılmaz, 6502 Sayılı Kanun’a Göre Tüketici Hukuku, p.137
[3] Aral, Fahrettin /Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.128 GÜMÜŞ, M. Alper, 6502 Sayılı Tüketicinin Korunması Hakkında Kanun Şerhi, p.97 vd.
[4] GÜMÜŞ, M. ALPER, Borçlar Hukuku Özel Hükümler, p.73
[5] Bayi, mebiin ayıbınımüşteriden hile ile gizlemişise bey ‘ide tekeffül hükmünü iskat veya tahdit eden her şart batıldır. (eTB -196) Şahiniz, Salih Tacirler Arası Ticari Satımlarda Satıcının Ayıplı İfadan (Ayıplı Mal Tesliminden) Sorumluluğu, p..87.
[6] Yavuz, Cevdet, Özellikle Tüketicinin Korunması Sorunu Bakımından Satıcının Satılanın (Malın) Ayıplarından Sorumluluğu, p.127
[7] Bieger, Alain, die Mängelrüge im Vertragsrecht ,p.6-7 (Quoting from Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.80)
[8] ÇETİNER, Bilgehan, “Borçlar Kanunu Tasarısında Düzenlenen Muayene ve İhbar Külfetine İlişkin Kısa Değerlendirme”, p.136
[9] Aday, Nejat, Özel Hukukta Yüklenti Kavramı ve Sonuçları, p.195
[10] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.126, Doğanay, İsmail, Ticari Alım – Satım Akdi ve Nevileri, p. 153
[11] Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.79
[12] ÇETİNER, Bilgehan, “Borçlar Kanunu Tasarısında Düzenlenen Muayene ve İhbar Külfetine İlişkin Kısa Değerlendirme”, p.138, Atamer, Yeşim, “Tüketici Satım Sözleşmelerine İlişkin TKHK m.4 – Eleştiriler ve Revizyon Teklifi-, Banka ve Ticaret Hukuku Dergisi, C.25, Sa.1’den ayrı basım, Online – (10.12.2018) https://www.bilgi.edu.tr/media/uploads/resume/publication/attachment/631/15.pdf
[13] Feyzioğlu, F. Necmeddin, Borçlar Hukuku İkinci Kısım Akdin Muhtelif Nevileri, p. 278, Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.80
[14] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.127
[15] Rolf Furrer, Beitrag zur Lehre der Gewahrleistung im Vertragrect, Zürich, 1973, p.54 (Quoting from Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri p.69)
[16] For detailed information about the concept of debt, see; KOCAYUSUFPAŞAOĞLU / HATEMI / SEROZAN / ARPACI, Borçlar Hukuku Genel Bölüm, Borçlar Hukukuna Giriş, Hukuki İşlem Sözleşme, p. 5 vd.,
[17] Edis Seyfullah, Türk Borçlar Hukukuna Göre Satıcının Ayıba Karşı Tefekkül Borcu p. 75
[18] Gümüş, M. Alper, Borçlar Hukuku Özel Hükümler, p.70; Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.126, Yavuz, Cevdet, Türk Borçlar Hukuku Özel Hükümler, p.138
[19] Kılıçoğlu, Ahmet, Borçlar Hukuku Genel Hükümler, p.43
[20] DOĞAN, Nazlı, Tacirler Arası Ticari Satım Sözleşmelerinde Satıcının Ayıba Karşı Tekeffül Borcu, p. 56, Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.67
[21] Edis Seyfullah, Türk Borçlar Hukukuna Göre Satıcının Ayıba Karşı Tefekkül Borcu p. 85
[22] Aday, Nejat, Özel Hukukta Yüklenti Kavramı ve Sonuçları, p.181; Gümüş, M. Alper, Borçlar Hukuku Özel Hükümler, p.70; Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.126, Yavuz, Cevdet, Türk Borçlar Hukuku Özel Hükümler, p.138
[23] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.126
[24] Gümüş, M. Alper, Borçlar Hukuku Özel Hükümler, p.70, Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.132, Aslan, İ. Yılmaz, 6052 Sayılı Kanuna Göre Tüketici Hukuku, p.139, Fikret, 6098 Sayılı Türk Borçlar Kanunu’na Göre Hazırlanmış Borçlar Hukuku Genel Hükümler, p. 163, Kılıçoğlu, Ahmet, Borçlar Hukuku Genel Hükümler, p.43
[25] Arslanlı, Halil, Ticari Bey, p.332
[26] Yünlü, Semih, “Arsa Payı Karşılığı İnşaat Sözleşmelerinde Ayıp“, p.83, Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.72
[27] Eren, Fikret, 6098 Sayılı Türk Borçlar Kanunu’na Göre Hazırlanmış Borçlar Hukuku Genel Hükümler, p. 162
[28] Feyzioğlu, F. Necmeddin, Borçlar Hukuku İkinci Kısım Akdin Muhtelif Nevileri, p. 278
[29] Tandoğan, Haluk, Borçlar Hukuku Özel Borç İlişkileri, p. 176
[30] Özdemir, Hayrunnisa; “Viyana Satım Sözleşmesinde ve Türk Borçlar Kanunu’nda Muayene Yükümlülüğü”, p.513
[31] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.130
[32] Baysal, Pelin, “Milletlerarası Mal Satımına İlişkin Sözleşmeler Hakkında Birleşmiş Milletler Antlaşması (CISG) Çerçevesinde Satıcının Ayıptan Sorumluluğu”, p. 258
[33] Feyzioğlu, F. Necmeddin, Borçlar Hukuku İkinci Kısım Akdin Muhtelif Nevileri, p. 279
[34] Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.139
[35] Tandoğan, Haluk, Borçlar Hukuku Özel Borç İlişkileri, p. 180
[36] Please see some decisions of the Court of Cassation on this matter.13. HD. 10.11.1980, E. 1980/5071, K. 1980/5769
[37] Yavuz, Cevdet, Türk Borçlar Hukuku Özel Hükümler, p.136, Şahiniz, Salih, Tacirler Arası Ticari Satımlarda Satıcının Ayıplı İfadan (Ayıplı Mal Tesliminden) Sorumluluğu, p. 73
[38] Doğanay, İsmail, Ticari Alım – Satım Akdi ve Nevileri, p. 154
[39] Edis Seyfullah, Türk Borçlar Hukukuna Göre Satıcının Ayıba Karşı Tefekkül Borcu p. 81, Eren, Fikret, Borçlar Hukuku Özel Hükümler, p.146
[40] In practice, 8 days are considered sufficient for meats, and 9 days for oranges Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.131, Yavuz, Cevdet, Özellikle Tüketicinin Korunması Sorunu Bakımından Satıcının Satılanın (Malın) Ayıplarından Sorumluluğu, p.108
[41] Baysal, Pelin, “Milletlerarası Mal Satımına İlişkin Sözleşmeler Hakkında Birleşmiş Milletler Antlaşması (CISG) Çerçevesinde Satıcının Ayıptan Sorumluluğu“, p. 256, [41] Aydoğdu, Murat, Kahveci, Nalan, Türk Borçlar Hukuku Özel Borç İlişkileri (Sözleşmeler Hukuku), p.166
[42] KAZĞURT, Ahmet, “6098 Sayılı Türk Borçlar Kanunu Hükümlerine Göre Taşınır Satış Sözleşmesinde Satıcının Ayıptan Doğan Sorumluluğu”, p.278
[43] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p.129, Özdemir, Hayrunnisa; “Viyana Satım Sözleşmesinde ve Türk Borçlar Kanunu’nda Muayene Yükümlülüğü”, p.477
[44] Doğanay, İsmail, Ticari Alım – Satım Akdi ve Nevileri, p. 158
[45] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, S.131, Doğanay, İsmail, Ticari Alım – Satım Akdi ve Nevileri, p. 159,
[46] Özdemir, Hayrunnisa; “Viyana Satım Sözleşmesinde ve Türk Borçlar Kanunu’nda Muayene Yükümlülüğü”, p.473
[47] Gümüş M. ALPER, Borçlar Hukuku Özel Hükümler, p.70
[48] Gümüş, M. ALPER, Borçlar Hukuku Özel Hükümler, p..70
[49] Aral, Fahrettin / Ayrancı, Hasan, Borçlar Hukuku Özel İlişkiler, p..127
[50] Yücer Aktürk, İpek, Satım ve Eser Sözleşmelerinde Gözden Geçirme ve Bildirim Külfetleri, p.108
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