Subject 05- E- Consumer Law

tarafından | Eki 16, 2023 | Cyber Law

Subject 05- E- Consumer Law

  • Distance  Contracts

https://www.youtube.com/watch?v=R4WpR6qzCtA&feature=emb_logo 

In accordance with the Law No. 6502 on the Protection of Consumers article 48, a “distance contract” is defined as follows:

  • Distance contracts are contracts concluded between the seller or supplier and the consumer without the simultaneous physical presence of the parties, 
  • within the framework of a system established for the distant marketing of goods or services until the moment of the conclusion of the contract and
  • including the moment of its conclusion between the parties, through the use of a means of telecommunication (Any means that enables the establishment of a contract without the parties being physically face to face, such as letters, catalogs, telephone, fax, radio, television, electronic email, SMS, internet, and similar means)In electronic transactions involving consumers, distance  contracts are regulated within the framework of Law No. 6502 on the Protection of Consumers (“Consumer Law”) and the Distance Contracts Regulation (“Regulation”).
  • Scope

ARTICLE 2 – (1) This Regulation shall apply to distance contracts.

(2) The provisions of this Regulation shall apply to

  1. a) Financial services,
  2. b) Sales made through automatic machines,
  3. c) The use of this telephone with telecommunications operators by means of a public telephone,

ç) Services related to betting, lotteries, lotteries and similar games of chance,

  1. d) The creation, transfer or acquisition of immovable property or rights related to such property,
  2. e) Housing rental,
  3. f) Package tours,
  4. g) Timeshare, timeshare vacation, long-term vacation service and their resale or exchange,

ğ) The delivery of daily consumer goods, such as food and beverages, to the consumer’s residence or workplace as part of the seller’s regular deliveries,

  1. h) Passenger transportation services, without prejudice to the obligation to provide information under subparagraphs (a), (b) and (d) of the first paragraph of Article 5 and the obligations under Articles 18 and 19,

ı) Installation, maintenance and repair of goods,

  1. i) Social services to support families and individuals, such as hospice services, child, elderly or sick care
  2. j) (Additional:RG-23/8/2022-31932)(1) It shall not apply to contracts related to value-added electronic communication services that do not include subscription established through short messages and fully performed simultaneously, donations within the scope of the Law on Aid Collection dated 23/6/1983 and numbered 2860 and value-added electronic communication services offered by public institutions. 
  • Definitions in the Legislation

Permanent data register: Any means or medium that enables information sent by the consumer or sent to the consumer to be recorded in such a way that it can be reviewed for a reasonable period of time in line with the purpose of the information, copied without modification, and enables direct access to this information. This includes, but is not limited to, text messages, electronic mail, the internet, disks, CDs, DVDs, memory cards, and similar tools or media.

Consumer: Refers to natural or legal persons who act for non-commercial or non-professional purposes.

Consumer Arbitration Board: Refers to the arbitration board established to resolve disputes arising from consumer transactions and practices directed at consumers. (Consumer Arbitration Board Regulation Article 4/c)

Digital Content: Any type of data provided in digital form, such as computer programs, applications, games, music, videos, and text.

Distance Contract: Refers to contracts established within a system created for the remote marketing of goods or services by the seller or provider and the consumer, without the simultaneous physical presence of the parties, using remote communication tools from the formation of the contract up to and including the moment of formation.

Provider: Refers to real or legal persons who provide services to consumers for commercial or professional purposes, including public legal entities, or who act on behalf of or for the account of the provider.

Seller: Refers to real or legal persons who provide goods to consumers for commercial or professional purposes, including public legal entities, or who act on behalf of or for the account of the seller.

Consumer: Refers to natural or legal persons who act for non-commercial or non-professional purposes.

Remote Communication Tool: Any means or medium that enables the establishment of a contract without the parties being physically face to face, such as letters, catalogs, telephone, fax, radio, television, electronic email, SMS, and the internet.

Ancillary Agreement: Refers to the agreement related to the goods or services provided in addition to the main agreement and made by the seller, provider, or a third party.

The terms “intermediary service provider” and “platform” have been added to the definitions in Article 4 of the Regulation. (Effective as of 1/10/2022)

 Intermediary Service Provider: Refers to the person who acts as an intermediary for the establishment of a distance contract on behalf of the seller or provider by using the system they have created for the use of remote communication tools.

Platform: Refers to the system created by the intermediary service provider for the establishment of a distance contract by acting as an intermediary service provider, except for the common public electronic platform where public services are provided in a single point.

  • Pre-Contractual Information Obligation

In accordance with Article 48/2 of the Consumer Law, the consumer must be informed in a clear and comprehensible manner by the seller or provider about the issues specified in the regulation before accepting the distance contract or any corresponding offer, and the consumer is informed that they will be under the payment obligation once the order is confirmed.

The burden of proving that the consumer has been informed belongs to the seller or provider. The Regulation Amending the Distance Contracts Regulation has added provisions stating that the intermediary service provider is jointly and severally liable with the seller and/or provider for the pre-contractual information, confirmation of pre-information, incomplete information, exercise of the right of withdrawal, and the obligation to refund the fee to the consumer.(Effective as of 1/10/2022)

  • Scope of Pre-Contractual Information

According to Article 5 of the Regulation, the consumer must be informed by the seller or provider about the following issues in full before the conclusion of the distance contract or before accepting any corresponding offer:

  1. a) The essential characteristics of the subject product or service of the contract,
  2. b) (Amended: RG-23/8/2022-31932) The name or title of the seller or provider and the MERSIS number or tax identification number, 
  3. c) (Amended: RG-23/8/2022-31932) The clear address, phone number, and similar contact information that enables the consumer to quickly communicate with the seller or provider, as well as the identity and address of the person or entity acting on behalf of or for the seller or provider, if applicable,

ç) (Amended: RG-23/8/2022-31932) Information about the contact details that the seller or provider, or the intermediary service provider, would use to address consumer complaints if they are different from those specified in section (c),

  1. d) The total price of the goods or services, including all taxes, and, if the price cannot be determined in advance due to the nature of the goods or services, the method for calculating the price, as well as any additional costs that may apply if the shipping, delivery, or similar expenses cannot be calculated in advance,
  2. e) The additional cost imposed on consumers in cases where the usage fee of the remote communication tool cannot be calculated based on the regular fee schedule,
  3. f) (Amended: RG-23/8/2022-31932) Information regarding payment, the compliance of the delivery or performance period with what was promised in commercial advertisements and promotions, other information about delivery and performance, commitments, and the methods for resolving complaints by the seller, provider, or intermediary service provider,
  4. g) (Amended: RG-23/8/2022-31932) Information about the conditions, duration, procedure for exercising the right of withdrawal in cases where the right of withdrawal is applicable, details about the carrier designated by the seller for returns, the amount of return expenses not exceeding the delivery cost if the goods are returned with this carrier, and information about who will cover these expenses if the return is made using a different carrier than the one specified, (Will enter into effect on 01.01.2024)

ğ) The clear address, fax number, or email address where the notice of withdrawal should be sent,

  1. h) Information about the cases in which the right of withdrawal cannot be exercised in accordance with Article 15 or the circumstances under which the right of withdrawal is forfeited,

ı) Information about any deposits or other financial guarantees that the consumer must pay or provide, as requested by the seller or provider, and the terms and conditions associated with them,

  1. i) Information regarding technical protective measures, if any, that may affect the functionality of digital content,
  2. j) Information about which hardware or software the digital content is compatible with, based on what the seller or provider knows or can reasonably be expected to know,
  3. k) Information that consumers can make applications to the Consumer Court or the Consumer Arbitration Committee in case of disputes.

The information provided here is an integral part of the distance contract and, unless the parties explicitly agree otherwise, this information cannot be altered.

If the seller or provider fails to fulfill the obligation to provide information about additional charges as specified in section (d), the consumer is not obliged to cover these charges. It is mandatory for the total price mentioned in section (d) to include the total expenses per billing period in indefinite-term contracts or specific-term subscription contracts.

The burden of proof that the preliminary information has been provided rests with the seller or provider and the intermediary service provider.

  • Confirmation of Preliminary Information

In accordance with Article 6 of the Regulation:

(1) The consumer must be informed in a clear, simple, and legible manner, in a comprehensible language, in at least twelve-point font size, in writing or through a permanent data storage carrier by the seller or provider, in all the matters specified in the first paragraph of Article 5, using the remote communication tool used.

(2) In the case of the distance contract being concluded via the internet, the seller or provider must:

  1. a) Show all the information contained in subparagraphs (a), (d), (g), and (h) of the first paragraph of Article 5 clearly and separately, with the exception of the information obligation stated in the first paragraph of Article 5, just before the consumer becomes obligated to make a payment,
  2. b) Clearly and comprehensibly indicate whether any delivery restrictions apply and which payment methods are accepted, at the latest, before the consumer places an order.

(3) In the case of the distance contract being concluded through voice communication, the seller or provider must inform the consumer in a clear and comprehensible manner in the said medium about the matters contained in subparagraphs (a), (d), (g), and (h) of the first paragraph of Article 5, just before the consumer places an order, and must send all the information specified in the first paragraph of Article 5 in writing at the latest until the delivery of the goods or performance of the service.

(4) In the case of distance contracts concluded through an environment in which information about the order is presented in a limited space or time, the seller or provider must inform the consumer in a clear and comprehensible manner in the said environment, just before the consumer places an order, about the matters contained in subparagraphs (a), (b), (d), (g), and (h) of the first paragraph of Article 5, and must send all the information specified in the first paragraph of Article 5 in writing at the latest until the delivery of the goods or performance of the service.

(5) In contracts for instant service sales, which are established through the methods mentioned in the third and fourth paragraphs, it is sufficient for the consumer to be informed in a clear and comprehensible manner in the said environment, just before placing an order, regarding the matters stated only in subparagraphs (a), (b), (d), and (h) of the first paragraph of Article 5.

(6)The burden of proof that preliminary information has been provided rests with the seller or (Amendment: RG-23/8/2022-31932)(1) provider, as applicable.

(7)(Attachment: Official Gazette – 23/8/2022-31932)(1) In the event that a distance contract is established through a platform, the intermediary service provider is jointly and severally responsible with the seller or provider for providing preliminary information. In cases where data entry is carried out by the intermediary service provider, the intermediary service provider is responsible for any deficiencies in the mandatory provisions specified in the first paragraph and the accuracy of the data.

  • Right of Withdrawal

The right of withdrawal and its exercise are stipulated in the 4th paragraph of Article 48 of the Consumer Protection Law:

“The consumer has the right to withdraw from the contract without any justification and without paying any penalty within fourteen days.

It is sufficient for the notification of withdrawal to be made to the seller or provider within this period.

The seller or provider, along with the intermediary service provider, is obliged to prove that the consumer has been informed about the right of withdrawal.

If the consumer is not informed adequately about the right of withdrawal, they are not bound by the fourteen-day period. In any case, this period expires one year after the end of the withdrawal period.

The consumer is not liable for the changes and deterioration due to the ordinary use of the good during the right of withdrawal period”

According to Article 9 of the Regulation, the right of withdrawal period for service contracts begins on the day the contract is concluded, while for contracts related to the delivery of goods, it starts on the day the consumer or a third party designated by the consumer receives the goods. However, the consumer can exercise the right of withdrawal at any time during the period from the conclusion of the contract until the delivery of the goods.

According to Article 10 of the Regulation, the seller or provider, along with the intermediary service provider, is obliged to prove that the consumer has been informed about the right of withdrawal. If the consumer is not informed adequately about the right of withdrawal, they are not bound by the fourteen-day period. In any case, this period expires one year after the end of the withdrawal period.

  • Exercising the Right of Withdrawal

Pursuant to Regulation Article 11:

(1) The notification of the exercise of the right of withdrawal, either in writing or through a permanent data register, to the seller, provider, or intermediary service provider is sufficient before the expiration of the withdrawal period.

(2) In exercising the right of withdrawal, the consumer can use the form provided in the Annex or make an explicit statement indicating their decision to withdraw. The seller or provider may also offer the option for consumers to fill out this form or submit their withdrawal statement via their website. If consumers are provided with the right of withdrawal on the website, the seller or provider must promptly confirm to the consumer the receipt of their withdrawal requests.

(3) In sales made through voice communication, the seller or provider must send the form provided in the Annex to the consumer at the latest by the time of delivery or performance of the service. In such sales, the consumer may use this form to exercise their right of withdrawal, as well as the methods indicated in the second paragraph.

(4) The burden of proving the exercise of the right of withdrawal as mentioned in this Article rests with the consumer.

(5) (Added: Official Gazette-23/8/2022-31932) In distance contracts established through the platform, the intermediary service provider is obliged to establish the necessary system on the platform for the consumer to fill out the form in the Annex or submit a withdrawal statement and promptly confirm to the consumer that their withdrawal statements have been received by both the intermediary service provider and the seller or provider.

 

ANNEX

SAMPLE WITHDRAWAL FORM

(This form is to be filled out and sent only when the right to withdraw from the contract is desired.)

–To: (This section will be completed by the seller or provider, including the seller’s or provider’s name, title, address, fax number if available, and email address.)

-I declare that I have exercised my right of withdrawal from the contract for the sale of the following goods or provision of services.

–Order date or delivery date:

-Goods or services subject to the right of withdrawal:

-Price of goods or services subject to the right of withdrawal:

-Consumer’s name and surname:

-Consumer’s address:

-Consumer’s signature: (Only if sent on paper)

-Date:

  • Seller and Provider’s Obligations 

According to Article 12 of the Regulation, the obligations of the seller and the provider are as follows: (Amended: Official Gazette-23/8/2022-31932) (Will enter into effect on 01.01.2024)

(1) The seller or provider is obliged to refund all payments collected, including the delivery costs of the goods, to the consumer within fourteen days from the date when the notification of the exercise of the right of withdrawal was received. However, if the consumer returns the goods using a carrier other than the one designated for the return, this obligation begins from the date the goods reach the seller, except for cases where the payment is transferred to the seller after delivery in distance contracts established through the platform. In such cases, the intermediary service provider is jointly liable with the seller for the refund of payments mentioned in this paragraph, excluding situations where the payment has been transferred to the seller after delivery.

(2) In the case of the exercise of the right of withdrawal before the delivery of the goods, the intermediary service provider in distance contracts established through the platform is obliged to refund all payments collected, including the delivery costs of the goods, to the consumer within fourteen days from the date when the notification of the exercise of the right of withdrawal was received.

(3) In the case of the exercise of the right of withdrawal in contracts related to the provision of services, the intermediary service provider in distance contracts established through the platform is obliged to refund all payments collected within fourteen days from the date when the notification of the exercise of the right of withdrawal was received.

(4) The seller or provider must make all refunds mentioned in the first, second, and third paragraphs in a manner compatible with the payment instrument used by the consumer when making the purchase, without imposing any additional cost or obligation on the consumer, except for the provision of Article 13(3). In distance contracts established through the platform, the intermediary service provider is jointly liable with the seller for the fulfillment of this obligation, excluding cases where the payment is transferred to the seller or provider after the delivery or performance of the goods or services. In the event that the payment is made by credit card, the card-issuing institutions within the scope of Law No. 5464 on Bank Cards and Credit Cards dated 23/2/2006 must promptly increase the available limit of the cardholder by the amount transferred by the seller, provider, or intermediary service provider upon receipt.

(5) In cases of using the right of withdrawal, if the information regarding the carrier designated for the return and the predetermined return cost, which shall not exceed the delivery cost when the goods are returned using the designated carrier, is not included in the preliminary information under the scope of Article 5(1)(g) or if the carrier specified is not available at the location of the consumer, the expenses shall be covered by the seller or provider. In cases where the carrier specified in the preliminary information for the return is not available at the location of the consumer or if this issue arises due to the intermediary service provider in distance contracts established through the platform, the expenses and obligations related to the return shall be covered by the intermediary service provider.

(6) In distance contracts established through the platform, the seller or provider is obliged to promptly transmit to the intermediary service provider the notification received from the consumer regarding the exercise of the right of withdrawal.

  • The Obligations of the Intermediary Service Provider

In accordance with Article 12/A of the Regulation, the obligations of the intermediary service provider are as follows: (Amended: Official Gazette-23/8/2022-31932)

(1) The intermediary service provider must establish a system that allows consumers to submit requests and notifications regarding the following matters during the period of use of the rights and obligations arising from distance contracts established through the platform and enables them to track these matters without interruption:

  1. a) Notification of the exercise of the right of withdrawal.
  2. b) Notification of the termination of the contract.
  3. c) Request for a refund.

ç) Request for records of transactions between consumers and the seller or provider.

  1. d) Requests and complaints regarding delivery or performance.

(2) The intermediary service provider must immediately forward the requests and notifications specified in the first paragraph to the seller or provider.

(3) In cases where data entry is carried out by the intermediary service provider, the intermediary service provider is jointly and severally liable with the seller or provider for the performance of the pre-contractual information, confirmation, and proving that pre-contractual information has been provided.

(4) In cases where data entry is carried out by the intermediary service provider, the intermediary service provider is responsible for any deficiencies in the mandatory items specified in Article 5.

(5) The intermediary service provider is responsible for maintaining records of transactions between consumers and sellers or providers for three years and for providing this information to the relevant authorities and organizations and to consumers upon request.

(6) The intermediary service provider is responsible for each consumer transaction for which the seller and provider have acted in violation of Article 48 of the Law and the provisions of this Regulation due to non-compliant practices in the mediation service provided by the intermediary.

(7) In cases where the intermediary service provider collects payments on behalf of the seller or provider:

  1. a) In the event of the exercise of the right of withdrawal by the consumer before the delivery of the goods or before the performance of the service, from the date the notification of the exercise of the right of withdrawal reaches them,
  2. b) In the event of the consumer exercising the right of withdrawal after the delivery of the goods, if the price has not been transferred to the seller as of the date of the notification of withdrawal, from the date of delivery of the goods subject to the right of withdrawal or in the event of the goods being returned with a carrier other than the one designated for return, from the date of reaching the seller, (Will enter into effect on 01.01.2024)
  3. c) In the event of the consumer exercising the right to terminate the contract specified in Article 16, from the date of receipt of the termination notice,

within fourteen days, the intermediary service provider is jointly and severally liable with the seller or provider for the refund of the amount paid for the goods or services and the delivery costs to the consumer.

(8) The intermediary service provider is responsible for cases where the contracts concerning campaigns, promotions, or discounted sales, organized without the approval of the seller or provider, are not fulfilled or are inadequately fulfilled.

(9) The intermediary service provider is responsible for ensuring the compliance and verification of the information promised in advertisements and promotions made through the platform regarding the goods or services offered for sale and the mandatory items that must be included in pre-contractual information.

  • Consumer Obligations

Article 13 of the Regulation lists the obligations of the consumer as follows:

(1) Unless the seller or provider has made an offer to reclaim the goods, the consumer must return the goods to the seller or provider or to the authorized person within fourteen (RG-23/8/2022-31932)days from the date they have submitted the notification of exercising the right of withdrawal.

(2) The consumer is not responsible for changes and deterioration of the goods if they have used the goods in accordance with its operation, technical specifications, and usage instructions during the withdrawal period.

(3) Ek:RG-23/8/2022-31932) The consumer is obliged to cover the return costs, not exceeding the delivery costs, provided that it is stipulated in the pre-contractual information and the amount is specified by the seller. However, if the goods delivered to the consumer are defective within the scope of Article 8 of the Law, the consumer cannot be held responsible for the return expenses. Upon the consumer’s request, the return expense may be offset against the amount to be refunded to the consumer, along with the delivery costs. (Will enter into effect on 01.01.2024)

  • Exceptions to the Right of Withdrawal

The exceptions to the right of withdrawal are listed in Article 15 of the Regulation as follows:

Unless otherwise agreed by the parties, the consumer cannot exercise the right of withdrawal in the following contracts:

  1. a) Contracts for goods or services whose prices are subject to fluctuations in financial markets that are beyond the control of the seller or provider.
  2. b) Contracts for the supply of goods that are made to the consumer’s specifications or are clearly personalized.
  3. c) Contracts for the supply of perishable goods or goods with an expiry date.

ç) Contracts for the supply of sealed goods that are not suitable for return due to health or hygiene reasons once unsealed after delivery

  1. d) Contracts for the supply of goods that are liable to deteriorate or expire rapidly.
  2. e) Contracts for the supply of sealed audio or video recordings or sealed computer software that are unsealed after delivery.
  3. f) Contracts for the supply of digital content, except for those provided under a subscription contract, such as newspapers and periodicals.
  4. g) Contracts for leisure activities and services for leisure or entertainment, such as accommodation, goods transportation, car rental, food and beverage supply, and entertainment, which are to be performed on a specific date or during a specific period.

ğ) Contracts for services provided electronically and delivered instantly to the consumer or for intangible goods delivered instantly to the consumer.

  1. h) Contracts for services where performance has begun with the consumer’s prior consent before the end of the withdrawal period.

ı) Contracts for movable property required to be registered or recorded according to the Law on Highways and unmanned aerial vehicles subject to registration or recording obligation. (Effective from 1/1/2024)

  1. i) Contracts for the supply of mobile phones, smartwatches, tablets, and computers delivered to the consumer. (Effective from 1/1/2024)
  2. j) Contracts concluded through live auction by open tender. (Effective from 1/1/2024)
  3. k) Contracts for goods, where installation or assembly is included in the seller’s or authorized service’s installation or assembly instructions, that have been installed or assembled. (Effective from 1/1/2024)
  • Performance of the Contract and Delivery

Regulation Article 16 regulates the performance and delivery of distance contracts as follows:

(1) The seller or provider must fulfill their obligation within the time committed starting from the date the consumer’s order is received. In sales of goods, except for contracts related to goods prepared according to the consumer’s wishes or personal needs, this period cannot exceed thirty days in any case. (Effective from 1/10/2022)

(2) If the seller or provider fails to fulfill the obligation mentioned in the first paragraph, the consumer can terminate the contract.

(3) In case of contract termination, the seller or provider must, within fourteen days from the date of receipt of the termination notice, reimburse the consumer with all payments received, including delivery costs, along with statutory interest determined under Article 1 of the Law on Legal Interest and Default Interest, No. 3095, dated 4/12/1984, and return any valuable documents or similar papers that may have put the consumer in debt.

(4) In cases where it becomes impossible to perform the ordered goods or service, and if the seller or provider has collected the payment on behalf of the seller, the intermediary service provider, upon learning of this situation, must inform the consumer in writing or using a durable data storage medium within three days from the date of learning and must reimburse all payments received, including delivery costs, no later than fourteen days from the date of notification. The non-availability of the goods in stock is not considered a situation where the performance of the goods is impossible. (Effective from 1/10/2022)

  • Liability for Damages

In accordance with Regulation Article 17:

(1) The seller shall be liable for any loss or damage occurring until the delivery of the goods to the consumer or a third party designated by the consumer, other than the carrier.

(2) If the consumer requests the shipment of the goods by a carrier other than the one designated by the seller, the seller shall not be liable for any loss or damage occurring from the delivery of the goods to the relevant carrier.

  • Pyramid Sales Systems

According to the definition provided in Article 80 of the law, Pyramid Sales refers to a system that offers participants the hope of making a financial or property gain by requiring them to contribute a certain amount of money or assets in return and finding other participants under the same conditions. This gain is entirely or partially dependent on other participants complying with certain conditions, and it involves an unrealistic or extremely difficult-to-achieve profit expectation.

The establishment, propagation, or endorsement of Pyramid Sales systems is prohibited. The Ministry is authorized to conduct necessary examinations related to Pyramid Sales systems and to take the required measures in collaboration with relevant public institutions or organizations, including shutting down electronic systems if necessary.

Article 77 of the law outlines penalties for individuals engaged in Pyramid Sales:

Individuals who initiate, organize, promote, or disseminate a Pyramid Sales system through means conducive to attracting the participation of others, or support the spread of such a system for commercial purposes, are subject to the relevant provisions of Turkish Penal Code No. 5237, dated 26/9/2004.

Frequently Asked Questions

https://ticaret.gov.tr/data/5d43e87b13b876433065530b/08770c83dd8bc377676ab1575ebf8d99.pdf

“Questions Regarding Distance  Contracts – 186:

Are disputes arising from shopping in environments such as WhatsApp or SMS considered within the scope of a distance  contract?

Article 48 of the Consumer Protection Law No. 6502, titled “Distance Contracts,” states in the first paragraph: “The distance contract is a contract established between the seller or provider and the consumer through the use of remote communication tools, from the creation of the contract to the moment it is established, without the simultaneous physical presence of the parties and by means of remote communication tools, for the marketing of goods or services.” According to this regulation, a “distance contract” is a contract established between the seller or provider and the consumer through the use of remote communication tools, and all three conditions must be met for a contract to be considered a distance contract. If a contract is established remotely, involves an intermediary in any stage, and satisfies the conditions of “no simultaneous physical presence of the seller or provider and the consumer,” “creation of a system for the marketing of goods or services remotely,” and “establishment of the contract through the use of remote communication tools,” then contracts made through platforms like WhatsApp or SMS are considered distance contracts.”

 

“Questions Regarding Distance  Contracts – 189:

Is a consumer considered to have exercised the right of withdrawal by merely returning the product to the seller within the withdrawal period in remote purchases?

Article 11 of the Regulation on Distance Contracts, titled “Exercise of the Right of Withdrawal,” states in the first paragraph: “It is sufficient to notify the seller or provider in writing or through a Permanent data register before the end of the withdrawal period to exercise the right of withdrawal.” According to this provision, to exercise the right of withdrawal, a notification must be made to the seller or provider in writing or through a Permanent data register, which includes short messages, electronic mail, internet, disks, CDs, DVDs, memory cards, and similar media. 

Additionally, it is stated in the same regulation that this right can also be exercised using the form included in the Regulation or through an explicit declaration of withdrawal. Based on the above, it is considered that returning the product within the withdrawal period does not necessarily imply the exercise of the right of withdrawal, and the consumer should make an explicit statement indicating the exercise of this right. However, due to the difficulty of providing evidence, the use of the telephone to exercise the right of withdrawal is not recommended.”

“Questions Regarding Distance  Contracts – 187:

What are the rights of the consumer if a product purchased remotely is unilaterally terminated by the seller and the price is refunded due to the product being out of stock?

Article 16(4) of the Regulation on Distance Contracts, titled “Performance and Delivery of the Contract,” stipulates that in cases where the performance of the order-related product or service becomes impossible, the seller or provider must notify the consumer in writing or through a Permanent data register within three days of learning about this situation. The seller or provider is required to refund all payments received, including delivery costs, within fourteen days from the date of the notification. The situation where the product is out of stock is not considered as a circumstance where the performance of the contract becomes impossible. In this case, there is no mechanism to force the seller to complete the sale. On the other hand, it is considered that, for the purpose of compensation for damages, the consumer may seek remedies against the seller within the framework of general legal rules.”

 

“Questions Regarding Distance Contracts – 192:

In accordance with the provisions of the Regulation on Distance Contracts titled “Exceptions to the Right of Withdrawal,” are products such as herbal medicines, weight loss creams, and perfumes considered exceptions to the right of withdrawal?

Article 15 of the Regulation on Distance Contracts, titled “Exceptions to the Right of Withdrawal,” contains provisions in its first paragraph that specify the situations in which the right of withdrawal cannot be exercised, unless otherwise agreed by the parties. These situations include contracts related to goods or services that:

  1. a) The price of which is dependent on fluctuations in financial markets and which are not under the control of the seller or provider.
  2. b) Are prepared according to the consumer’s wishes or personal needs.
  3. c) Are liable to deteriorate or expire rapidly.

ç) After delivery, are sealed, and not suitable for return due to health and hygiene reasons.

  1. d) Are inseparably mixed with other items after delivery, and by their nature, are inseparable.
  2. e) Are related to digital content provided on a tangible medium if the protective elements such as packaging, seal, tape, and packaging have been opened after delivery.
  3. f) Are for periodicals, such as newspapers and magazines, provided under a subscription contract, except for subscription contracts.
  4. g) Concern leisure activities for a specific date or period, including hotel reservations, transportation of goods, car rental, supply of food and beverage, and entertainment or leisure activities.

ğ) Are services performed instantly in electronic form or intangible goods delivered to the consumer instantly.

  1. h) Are related to services that start with the approval of the consumer before the right of withdrawal period expires. It is considered that the mentioned goods, such as jewelry, herbal medicines, creams, perfumes, razors, and similar products, fall within the scope of goods that cannot be returned due to health and hygiene reasons as specified in sub-paragraph “ç” of this regulation. 

Therefore, it is considered that the right of withdrawal can only be exercised when the protective elements such as packaging, seal, tape, and packaging have not been opened in the case of such products.”

To download the Turkish-English bilingual version, click here

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