The highest amount of cases in consumer law are housing and automotive cases. In article 13 of the Law on the Protection of the Consumer, a defective service is defined as a service that is in violation of the contract, as it does not have the features that have been agreed by the parties and that it should have objectively.
In Article 14 of the Law, it is mentioned that the provider must perform the service in accordance with the contract. In the continuation of the article, as a rule, the supplier is responsible for the qualification declared by himself or by the manufacturer or importer of the product within the scope of the advertisement statement. According to article 61 of the Law on the Protection of the Consumer, if the qualifications specified in the advertisements are not included in the service provided, the service providers will be deemed to be at fault. As a result of defective service, the consumer has optional rights; renegotiation of the contract, resumption of the service, reduction in the price at the rate of defects, requesting free repair. The provider is obliged to fulfill these rights, which the consumer will choose after the defective service, at his own expense. The consumer may claim compensation with these exclusive rights. The provisions of TCO 112 for the compensation to be claimed together with the optional right, and the provisions of the TCO 506, which emphasizes the criteria of personal performance, loyalty and care for the defective service, are applied by analogy. While there is no need for proof of fault for other optional rights, proof of fault is required in order for compensation to be requested. In addition, the consumer may not demand any of the optional rights and may only demand compensation. When it comes to optional rights, renege on the contract; in immediate-act contracts. It would be more appropriate to use an annulment agency in long-term, continuous performance contracts. Provisions regarding reversion are the provisions of the Code of Obligations 229 and the following. In some cases, it may not be fair to ask for your right to withdraw from the contract. If the service can be done very easily, not the heavy situation such as returning, but also other rights are ruled. One of the optional rights used in the most defective service is to demand a discount from the sales price at the rate of the defective. The relative calculation method is used to calculate the discount. The consumer’s right to request free repair is the most common practice in the automotive industry. Free repair will be given if it malfunctions within the warranty period. The consumer cannot exercise this right if the free repair or re-opening of the service would bring disproportionate difficulties for the provider. Here, the proportionality of the defect is important so that the consumer can request free repair. As another optional right, for the service to be seen again, it must be objectively possible to see the service and the rules of the transaction life should make it possible to see the service again in the rules of honesty. If the fault is too big, for example, the connection of the motor, the connection of the electrical component is a major fault, the service will not be seen again, and the vehicle will be sent to the center to be repaired or the same will be given. The consumer’s right to choose has been reduced to 4 by the Supreme Court today, with the excuse of inflation and the absence of series of cars by institutions. Execution of the right of choice cannot exceed the thirty-day period specified in the law. The right that the other consumer may request is the right to compensation. Pursuant to article 16 of the law on consumer protection, liability for defective service is subject to a two-year statute of limitations from the date of performance of the service, even if the defect occurs later. Although in the continuation of the article
If the defect is concealed by gross fault or fraud, it is not subject to a two-year statute of limitations, although it states that the statute of limitations will not be applied, but as per TCO 146, there is a general statute of limitations of 10 years.
Scope of after-sales services and obligations of service stations
After-sales services can be considered as any kind of support offered to the consumer in the process after a product is sold. These services include, but are not limited to, warranty, insurance, product updates and maintenance/repair services, and call centers offered by brands to consumers, cargo information and communication facilities through different channels. When we look at the after-sales services regulation, it is seen that after-sales services are limited to assembly, maintenance and repair services, and essentially the regulation restricts the establishment and responsibilities of the service stations that will perform these services. The performances that must be fulfilled during the lifetime of the motor vehicle are considered as a mandatory and integral part of the service, and therefore, failure to perform the performance properly should be considered as a performance contrary to the contract. In the automotive sector, the services provided by the service providers to the consumers should include the necessary qualifications to provide objectively. In the after-sales services regulation, the products produced by the manufacturers or importers
It has been stated that they are obliged to provide after-sales maintenance and repair services for the goods they import or during the service life determined by the Ministry. Goods have a period of use along with a warranty period. The part outside the warranty period is called the lifetime. The service life is determined by the ministry, and the ministry assigns a useful life to certain vehicles. Importers and manufacturers have to provide maintenance and repair services for the goods they import, within the lifetime of that product.
According to the regulation, manufacturers or importers can set up authorized service stations themselves, or they can also benefit from service stations or service organizations, provided that they are responsible for the services provided by the service stations. In this case, the responsibility will continue with the private company. However, the biggest problems for the consumer arise when the activity of the importer company ceases to exist. I
In the event that the importer’s commercial activities are terminated in any way, the seller, the manufacturer and the new importer are jointly responsible for the provision of maintenance and repair services during the warranty period. After the warranty period has expired, the manufacturer or the new importer has to offer maintenance and repair services during its lifetime. If there is no authorized service, the nearest service station to the consumer is used. Pursuant to the regulation, the consumer will not be able to charge any fees at the point of delivery to the service and sending it back. Consumers have to obtain certain documents when they bring them to the after-sales service. The certificate of receipt of the goods and the service receipt for the goods delivered to the consumers should also be obtained. The important function of these two documents is that they will serve as evidence in disputes arising after the establishment of the motor vehicle sales contract. In Article 10 of the Regulation; The regulation “Maintenance and repair time at authorized service stations of the product during its useful life cannot exceed the maximum repair period” is included. Because while protecting the consumer on the one hand, it also protects the importer and producer on the other. Regarding both authorized and private services
Except for the warranty period of the product, the consumer cannot be charged under any name in case of a repetition of the same fault within one year regarding the assembly, maintenance and repair services provided by the service stations.
In the event that a part of the product that is not required to be sold with a warranty certificate is replaced or sold by the service station outside the warranty period, a warranty period of not less than six months is given for the replaced or sold part. It is seen that this regulation has been neglected in practice. In practice, there are problems as to whether the replaced part was actually replaced, or if it was, whether it was replaced with the original or the equivalent.
Responsibility of the manufacturer, importer and seller
In Article 4 of the Regulation, authorized service stations are defined as “for the goods produced or imported by the manufacturers or importers; facilities established or established by real or legal persons authorized for this purpose by themselves or pursuant to the contract between them, in order to carry out after-sales assembly, maintenance and repair services throughout their useful life. In that case, the manufacturer or importer company will either establish the authorized service station responsible for performing the after-sales service within its own structure or provide the realization of this service with a contract through a facility established by a real or legal person other than itself. Private services, on the other hand, operate independently of any manufacturer or importer, so there is no legal relationship between them and the manufacturer or importer. For this reason, it is stated that the manufacturer or importer, together with the authorized service stations, is jointly and severally responsible for the provision and execution of after-sales services in accordance with Article 14 of the regulation. In other words, the consumer will ask from whomever he finds easiest. The seller has no responsibility in this regard. In the event that joint responsibility comes to the fore, manufacturers or importers shall have the right of recourse against the authorized service station established or established by another real or legal person, pursuant to Article 62 of the Turkish Code of Obligations. In the event that the headquarters of the motor vehicle manufacturer is abroad or the production takes place abroad, the provisions of the law on private international law and procedural law (MÖHUK) shall be applied in the resolution of the dispute arising in relation to the joint liability for after-sales services in terms of the automotive sector. Accordingly, if the consumer includes the foreign manufacturer in his case regarding after-sales services, a dispute with a foreign element will arise.
First of all, the competent court will be determined within the framework of international jurisdiction rules, then the applicable law will be determined and the binding rules will be applied. Even if a separate contract is concluded between the importer and the authorized service station, not the manufacturer, the contract between the manufacturer and the importer will not be accepted as the source of responsibility. Because there is a dispute arising from the motor vehicle sales contract, which is a consumer contract, and has a foreign element. For this reason, the provisions of Article 26 titled consumer contracts will be applied to this contract, which is a consumer contract, not the provisions of Article 24 of the MÖHUK to be applied to commercial contracts. With this article, the objective binding rule has been determined as the “consumer’s habitual residence law”. Because this law is the law that the consumer knows best, and therefore, is considered to protect the consumer in the best way. In addition, in consumer contracts, the opportunity to choose the law is provided by the parties. However, if the protection of the consumer in the chosen law is less favorable than that provided by the objective binding rule, the choice of law will not be taken into account in this respect. Regarding the replacement vehicle specified in Article 11 of the Regulation, if the defect of the product cannot be repaired within ten working days within the warranty period, to the manufacturer or importer; Until the repair of the good is completed, it becomes obligatory to allocate another substitute good with similar characteristics to the use of the consumer. Here, the consumer has to demand substitute goods. The conditions for this; There will be a malfunction exceeding ten business days and it must be within the warranty and within the warranty period. If another product with similar characteristics is not requested by the consumer, the manufacturer or importer is relieved of this obligation. The burden of proof regarding this lies with the manufacturer or importer.
