Consumer’s Right of Withdrawal in Distance Sales Contract
E-commerce has become the mainstay of daily life and its importance is ever so pronounced with the pandemic. Consumers turn to e-commerce company platforms for their everyday needs. Consumers purchase goods and services from e-commerce companies with distance contracts.
The concept of a distance contract is defined in the Article 48 of the Law No.6502, Law on the Protection of the Consumer (“Consumer Law”). The statute ordains that “contracts which are concluded between the trader and/or the provider and the consumer without physical presence of the parties under an organized system for distance marketing of goods or services up to and including the time at which the contract is concluded with the use of distance communication devices”.
Certainly, it is not an adequate definition to state that distance contracts are contracts established by the use of distance communication devices in the Consumer Law. For this reason, the legislator refers to the Regulation on Distance Contracts (“Regulation”) published in the Official Gazette dated 27 November 2014 and numbered 29188, in which the procedures and principles for the implementation of such contracts are specified in the continuation of the article. In Article 5 of the Regulation, it is clearly stated that it is obligatory to inform the consumer by the seller or supplier before the establishment of distance contracts. In this information content, there is the right of withdrawal, which is perhaps the most important matter for consumers. The consumer concludes the purchase of the relevant product or service without physically seeing or experiencing the item of purchase. Accordingly, there is a risk that the qualities of the product or service delivered or performed to the consumer are not consistent with the disclosures made by the seller. And yet, in the Regulation, all matters such as the conditions, procedure and information about a third person carrier stipulated by the seller for the return etc. must be included in order for the consumer to use the right of withdrawal from the contract, and the open address where the withdrawal notification will be made. Within the scope of this article, the legal regulations regarding the consumer’s right to withdraw from the distance sales contract will be evaluated.
Pursuant to the Article 9 of the Regulation, if there is a contract for the delivery of the product or the purchase of services, the consumer has the right to withdraw from the contract without giving any reason and without paying any penalty within 14 (fourteen) days from the date of establishment of the contract. Sometimes, it is stated otherwise illegally within the scope of the procedures of some e-commerce companies. With the relevant article, it is stated that no justification is required for the consumer to use his/hers right of withdrawal, and even the delivery of the product to him/her is not required in order to use this right. Therefore, all contractual provisions contrary to this matter are invalid.
In this context, another important matter regarding the duration is based on the seller or supplier’s obligation to inform the consumer regarding the right of withdrawal. That is, if the seller or the supplier does not inform the consumer regarding the use of the right of withdrawal in accordance with the procedures specified in the Consumer Law and the Regulation, the consumer is not subject to the 14 (fourteen) day period to use this right. The burden of proof to show that this information has been duly made rests with the seller or supplier. However, in any case, the limitation period regarding the use of the right of withdrawal expires at the end of a period of 1 (one) year from the date of the consumer’s withdrawal period.
In order for the consumer to use the right of withdrawal within the periods specified in the Regulation, it is deemed sufficient for the consumer to make a written or permanent notification of the use of this right of withdrawal with a permanent data storage device. The concept of permanent data storage device defined in the Regulation as “text message, electronic mail, internet, disc, CD, DVD, memory card and all similar tools or portals that enables information sent to the consumer to be recorded, copied without modification and accessed as it is and in a manner that allows the consumer to examine the information for a reasonable period of time in accordance with its purpose”. However, many e-commerce companies also offer options on their websites so that consumers can easily exercise their right of withdrawal.
After the notification that the consumer has used his/hers right of withdrawal, the seller or the supplier is obliged to inform the consumer that this request has been received. Following this, the amount collected from the consumer must be refunded within 14 (fourteen) days from the date of receipt of the notification. The amount subject to the refund is returned to the consumer in the same way with whichever payment method used by the consumer. Under no circumstances can the seller or the provider impose an additional cost on the consumer due to the use of this right.
Therefore, the right of withdrawal, which is perhaps the most important right for the protection of the consumer in distance contracts, has been regulated by the legislator in favour of the consumer. However, it should be noted that there are exceptions to the use of this right by the consumer. These exceptions are stated in detail in Article 15 of the Regulation as perishable goods, packaged products that were opened, etc. The legislator emphasizes that these exceptions are not rules and that the parties can always agree on the contrary by contract.
Finally, in case of a dispute between parties regarding the use of the right of withdrawal, the value of the purchased product or service will be important for the institution to be applied for the resolution of the dispute. Pursuant to the Communiqué on Raising the Monetary Limits Set Forth in Article 68 of Law No. 6502 on the Protection of Consumers and Article 6 of the Consumer Arbitral Tribunals Regulation of the Republic of Turkey Ministry of Commerce published in the Official Gazette dated 16.12.2021 and numbered 31691, it is regulated that the relevant judicial authorities will be authorized within the limits specified below.
- District Consumer Arbitration Committees in disputes under 10,280.00 (ten thousand two hundred and eighty) Turkish Liras,
- Provincial Consumer Arbitration Committees in disputes between 10,280.00 (ten thousand two hundred eighty) Turkish Liras and 15.430 (fifteen thousand four hundred thirty) Turkish Liras in provinces with metropolitan status,
- Provincial Consumer Arbitration Committees in disputes under 15,430.00 (fifteen thousand four hundred and thirty) Turkish Liras in the centres of provinces that are not in metropolitan status,
- Provincial Consumer Arbitration Committees in disputes between 10,280.00 (ten thousand two hundred and eighty) Turkish Liras and 15,430.00 (fifteen thousand four hundred thirty) Turkish Liras in districts of provinces that are not in metropolitan status.
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