Contracts governed by the Turkish Commercial Code are classified as commercial contracts if both parties are merchants or if the contract is related to a commercial enterprise. In commercial sales contracts, the seller’s liability for defects depends on the buyer fulfilling certain legal obligations regarding inspection and notification after the delivery of the goods. The term “defect” refers to a deviation from the qualities promised in the contract or the objective standards expected of similar goods.
According to Article 23 of the Turkish Commercial Code (“
TCC”) and the reference it makes to Article 223 of the Turkish Code of Obligations (“
TCO”), the deadlines for notifying defects vary depending on the type of defect. If notification is not made in due time, it is assumed that the buyer has accepted the goods as they are. For this reason, these deadlines are critical in commercial sales.
Under TCC Article 23/c, if a defect is apparent upon delivery, the buyer must notify the seller in writing within two days of receiving the goods. If the defect is not noticeable through ordinary inspection—i.e., a hidden defect—the buyer must inspect the goods and notify the seller within eight days of delivery. However, failure to meet this eight-day deadline does not eliminate all of the buyer’s rights. If the defect is of a nature that could not reasonably be discovered during the usual inspection and only appears after usage, the buyer must notify the seller “immediately” upon discovering it, as defined in TCO Article 223.
The term “immediately” is not tied to a fixed duration and should be interpreted based on the specific circumstances of each case. Therefore, how courts interpret the term “immediately” in cases involving usage-based hidden defects is crucial.
For instance, in a case involving a malfunction in a mechanical system, courts accepted notification within two weeks as timely. However, longer delays have been deemed violations of the notification duty. In one case, a hidden defect in a sold machine was reported about seven months later, and the court ruled that the notification was not “immediate.” Similarly, a hidden defect in a defense industry product reported two months later was not accepted as timely, and the court found that the obligation to notify without delay had been breached. In another case involving manufacturing defects in lighting accessories, notification made within thirteen days was considered unreasonable.
However, courts tend to take a more flexible approach when hidden defects arise within the warranty period. In one case, despite the defect in a mobile phone being reported more than a year later, the court found the notification valid as it was made during the warranty period. Likewise, in a case involving a differential malfunction in a motor vehicle, complaints made during the warranty period were considered sufficient to meet the notification requirement. Nevertheless, the mere existence of a warranty period is not always enough. Buyers are still expected to notify the seller without undue delay once the defect appears. For example, in a case involving an agricultural raw material, a notification made approximately one month after the defect appeared was found to be insufficient.
In conclusion, the “immediate” notification requirement introduced by the TCO for usage-based hidden defects does not refer to a fixed period and must be evaluated based on the specific facts of each case. However, once the buyer becomes aware of the defect, they must notify the seller with the speed and diligence expected in commercial life. Case law shows that notifications made weeks or months after discovering the defect are generally not accepted, while those made shortly afterward are considered reasonable and fall within the scope of “immediate” notification. Therefore, to avoid losing their rights, buyers must notify the seller as soon as they become aware of the defect, at the very latest, within a timeframe that aligns with industry practices and the normal course of business, and in a way that can be proven.
Ebrar Turan, Associate
Berfin Sarıhan, Trainee Lawyer