Ⅰ. Introduction
In today's world, it is possible to talk about the widespread nature of international trade, which has grown due to advancing technology and increasing globalization. As a result, disputes can arise between parties regarding which country's law will apply in resolving conflicts that may emerge from purchase agreements concluded between individuals and institutions in different countries. To eliminate this uncertainty and to establish uniformity in such purchase agreements, the United Nations Convention on Contracts for the International Sale of Goods ("CISG") was established and came into force. In this article, we will examine and evaluate the application areas of the concept of "defect," which is frequently encountered in contracts, both within the scope of the Turkish Code of Obligations and the Vienna Convention on the Sale of Goods.
ⅠⅠ. Defect Provisions Under the Turkish Code of Obligations
Within the scope of the Turkish Code of Obligations No. 6098 ("TCO"), a "defect" refers to a situation where the goods sold do not comply with the contract or are defective. According to Article 219 of the TCO, a defect is defined as "any non-conformity with the qualities, type, quantity, measurements, packaging, or any other characteristic announced under the name of the brand, instruction for use, or guarantee certificates, or any other description and advertisement made by the seller."
In this context, a defect may be present if the condition of the goods at the time of delivery to the buyer does not match the specifications determined in the contract or the descriptions made by the seller, or if the goods do not meet the expected standards in usage. A defect can include situations where the goods lack the required qualities, are not suitable for a specific purpose, or fail to perform as expected during normal use.
Firstly, the buyer is required to inspect the purchased goods and notify the seller of any defect or deficiency found. The legislator has considered the requirement to notify within a reasonable time in Article 223 of the TCO. Although the concept of reasonable time has been subject to debate in doctrine, according to Article 23(c) of the Turkish Commercial Code No. 6102 ("TCC"), in cases of commercial sales, if the defect is obvious at the time of delivery, the buyer must notify the seller within two days. If the defect is not obvious, the buyer is obliged to inspect or have the goods inspected within eight days after receiving the goods, and if a defect is found, to notify the seller within this period to protect their rights.
Upon the buyer's notification of the defect, the legislator grants the buyer various optional rights in the face of defective goods through Article 227 of the TCO. These rights include the right to request a reduction in the price proportional to the defect, to rescind the contract, to request the repair or replacement of the defective goods, or to demand replacement with non-defective goods. The buyer is free to exercise any of these rights in response to defective goods. Of course, the buyer's rights to claim compensation for negative or positive damages due to the delivery of defective goods, as regulated by Article 125 of the TCO, are also reserved.
ⅠⅠⅠ. Defect Provisions Under the Vienna Convention on the Sale of Goods
The Vienna Convention on the Sale of Goods is an agreement regulating international contracts for the sale of goods, adopted by the United Nations on April 11, 1980, in Vienna. The Convention entered into force in 1988, and Turkey became a party on August 1, 2011. The purpose of this Convention is to promote uniform application and uphold the principle of good faith in international trade.
The provisions related to defective goods are found in Articles 35-44 of the CISG, which regulate the rights of both the buyer and the seller in case of defects. According to Article 35 of the CISG, certain conditions must be met for goods to be considered defective. These conditions include the failure of the seller to fulfill their obligations, non-compliance with the sample provided, lack of expected qualities, and failure to meet normal purchasing expectations.
In case of a defect, the buyer's responsibilities include inspection and notification. Inspection should be conducted to determine whether the goods conform to the contract, and this should be done within a "short period as is practicable under the circumstances." The notification of defects is also important, and the buyer must inform the seller of the defects within a reasonable time.
If the buyer determines that the goods are defective, they will have the rights outlined in Articles 46-52 of the CISG. These rights include the right to request repair or replacement of the goods, the right to request a price reduction, and the right to rescind the contract.
In case of a breach of contract, the buyer also has the right to claim compensation. In this context, even if the buyer has exercised one of the options such as requesting repair or replacement of the goods, requesting a price reduction, or rescinding the contract, they can still claim compensation. Moreover, it is not necessary for the breach of contract to be fundamental to claim compensation, and Articles 74-77 of the CISG provide detailed regulations on compensation, with the buyer's compensation claim varying depending on which optional right they exercised. However, unlike under the TCO, the buyer under the CISG also has the right to claim compensation for lost profit, in addition to the negative and positive damages.
Ⅳ. Conclusion
Both the Turkish Code of Obligations and the Vienna Convention on the Sale of Goods regulate the rights and obligations of the parties concerning the delivery of defective goods in commercial relationships. While the Turkish Code of Obligations applies to commercial relationships within Turkey, the Vienna Convention on the Sale of Goods covers international contracts for the sale of goods.
In both regulations, the buyer's rights are protected in cases of defective goods, and the buyer is offered various optional rights. These optional rights include requesting a price reduction, rescinding the contract, and requesting the repair or replacement of the goods. Overall, the defect provisions of the TCO and CISG aim to ensure a fair balance in commercial relationships and to protect the rights of buyers in case of defective goods. However, there are important points that parties need to consider when drafting a contract, especially since the application areas and details of both regulations differ in the context of compensation claims arising from any breach of contract.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.