Distance Contracts

A. What is a Distance Contract?

Distance contracts have been included in our daily lives with the effect of the developments in technology. With the contribution of technological developments, opportunities such as shopping through online shopping sites have also become suitable for distance contracts.

Distance contracts are regulated in seven clauses in Article 48 of the Law No. 6502 on the Protection of Consumers. In line with the provisions of the Law, the Regulation regulates distance contracts in detail.

Although distance contracts provide benefits to consumers in some areas, they also have some risks. Since the parties establish a contract without physically coming together, it is not possible for the consumer to physically inspect the goods before the contract. For these reasons, the Law and secondary legislation regulate this issue in detail.

According to Article 48 of the TPL; “Distance contracts are contracts established by using distance communication tools between the parties up to and including the moment of the establishment of the contract, within the framework of a system established for the distance marketing of goods or services, without the simultaneous physical presence of the seller or provider and the consumer.”

The definition in the CPLPL also covers the cases where the consumer visits the workplace of a seller or provider for the sole purpose of gathering information about the goods or services, and as a result, the contract is negotiated and concluded through a remote communication tool. Contrary to this situation, a contract established through a remote communication tool after negotiation at the workplace of the seller or provider cannot be considered as a distance contract.

B. What are the Elements of a Distance Contract?

1.Failure of the Parties to Meet During the Establishment of the Contract

One of the most important elements that distinguishes distance contracts from other contracts is that the parties to the contract are not physically together during the conclusion of the contract. The parties conclude the distance sales contract by using remote communication tools. In the TKHK, the legislator has not imposed any limitations on the parties in terms of the tools to be used by using remote communication tools. Remote communication tools are the tools that enable the parties to establish the contract without being physically together. Accordingly, the contracts established by using communication tools such as television, e-mail, internet, etc. without the parties coming together are distance contracts.

2. The Necessity of a System for Distance Marketing of Goods or Services

It is the establishment of a system for the distance marketing of goods or services and the establishment of a distance contract between the seller or provider and the consumer through this system. Accordingly, in order for a contract to be a distance contract, the contract must be concluded using distance communication tools and within a system established by the seller or provider for the establishment of such a contract.

3. Conclusion of the Contract for the Delivery of Goods or Provision of a Service

According to Article 48 of the LPC, distance contracts are defined as the marketing of a good or service to the consumer as a result of the use of distance communication tools. In this context, the goods that constitute the subject matter of distance contracts are considered to be digitally available goods such as clothing, food, or software programs that have material assets that can be subject to sale[1]. All kinds of contracts that can be established by means of remote communication tools and are intended to conduct business are accepted as distance contracts within the scope of the TKHK.

4. Being a Contract that can be concluded as a Distance Contract

Although Article 48 of the TKHK does not regulate the contracts that cannot be established as distance contracts, in paragraph 2 of Article 2 of the Distance Contracts Regulation, the contracts to which the distance sales provisions will not apply are listed one by one. The relevant article is given at the end of this article[2].

C. Is the Distance Contract Subject to the Form Requirement?

The TPL and the Regulation on Distance Contracts do not stipulate any formal requirements for distance contracts. However, Article 6 of the Regulation stipulates that the consumer must be informed about the payment to be made if the consumer concludes the contract and the manner in which this information will be made is subject to a very strict formal requirement. However, it should be noted that the Regulation is not a formal requirement for the validity of the contract, and failure to comply with this requirement does not result in the nullity of the contract.

D. What are the Differences of a Distance Contract from a Doorstep Sale Contract?

Distance sales, unlike the contracts established outside the workplace of the seller or provider (doorstep sales) regulated under Article 47 of the TPL, are the contracts established by the consumer and the seller or provider without coming together. In doorstep sales, the parties are physically together, they only establish the contract outside the workplace of the seller or provider[3]. On the other hand, in order for a contract to be a distance contract, as we have explained in detail above, the parties must conclude the contract by using remote communication tools without physically coming together.

E. Prior Information Obligation

The right of the consumer to receive information before, during and after the conclusion of the consumer contracts is one of the important rights of the consumer arising from the law within the scope of the obligation to inform and the right to receive information regulated in Article 1 of the CPLPL[4].

Before accepting the distance contract or any corresponding offer, the consumer shall be informed by the seller or provider in a clear and understandable manner regarding the matters specified in the Regulation and the payment obligation when the order is approved. The burden of proof of fulfillment of the obligation to inform rests with the seller or the supplier (Art. 48/2 of the TPL).

If the seller cannot prove that the seller has fulfilled the obligation to inform, the consumer is not bound by the distance contract. The seller cannot demand the consumer to fulfill the obligations arising from the distance contract where the seller has not fully fulfilled its obligation to inform.

As a matter of fact, in the decision of the Court of Cassation dated 24.11.2016, 2015/13045 E., 2016/21860 K.; “In that case, the court should determine which contracts regarding the distance sale between the plaintiff and the defendant should be determined one by one, it should be determined for which contracts the plaintiff’s approval is obtained, except for those that have been put in writing, and a decision should be made in accordance with the result, especially by considering the issues of whether the plaintiff’s approval was obtained with the impression that the product previously sold in telephone calls was re-presented in a more advantageous and discounted manner. The fact that the court has made a decision in writing with incomplete examination is contrary to the procedure and the law and requires reversal.” and it is underlined that it is important to determine which contracts the consumer is informed about and which contracts the consumer has given consent to.

Since distance contracts are established through distance communication tools, the scope of prior notification is regulated in detail between Articles 5 and 8 of the Regulation. According to Article 5 of the Regulation, the consumer is obliged to be informed by the seller or provider in a manner to include all of the specified matters before the establishment of distance contracts or before accepting any corresponding offer.

These elements are;

the characteristics of the goods or services subject to the contract,

the name or title of the seller or provider, MERSIS number, if any,

contact information such as open address, telephone number, etc., where the consumer can contact the seller or provider, and, if available, the information of the person acting on behalf of the seller or provider,

different contact information of the seller or provider, if any, for the consumer to submit complaints,

the total price of the good or service including all taxes,

if the price cannot be calculated in advance due to its nature, the method of calculation of the price, all transportation, delivery and similar additional costs, if any, and information that additional costs may be paid if these cannot be calculated in advance,

in cases where the price for the use of the remote communication tool cannot be calculated over the usual fee tariff during the establishment of the contract, the additional cost imposed on the consumer, information on payment, delivery, performance, and commitments regarding these, if any, and the seller’s or provider’s resolution methods regarding complaints,

where there is a right of withdrawal, the conditions, duration and procedure for exercising this right and information on the carrier provided by the seller for the return,

the address, fax number or e-mail information where the withdrawal notification will be made,

In cases where the right of withdrawal pursuant to Article 15 cannot be exercised, information on the conditions under which the consumer will not be able to benefit from the right of withdrawal or under which conditions the consumer will lose the right of withdrawal, upon the request of the seller or provider, the deposits or other financial guarantees, if any, that must be paid or provided by the consumer and the conditions related to them, technical protection measures that may affect the functionality of digital content, if any,

information that the seller or provider knows, or could reasonably be expected to know, about the hardware or software with which the digital content may interoperate,

information that consumers can apply to the Consumer Court or the Consumer Arbitration Committee for disputes

in the form of “information”.

The information listed above is an integral part of the distance contract and this information cannot be changed unless the parties agree otherwise.

The method of preliminary information is regulated in Article 6 of the Regulation. The consumer must be informed in writing or by means of a permanent data storage device by the seller or provider in a clear, simple and readable manner in a clear, plain and readable language in a minimum font size of twelve in accordance with the distance communication tool used, regarding the issues listed in Article 5 of the Regulation in fifteen subparagraphs.

F. Right of Withdrawal

The right of withdrawal is one of the most important measures protecting the consumer in distance contracts. There are some reasons why the right of withdrawal is granted to the consumer in distance contracts. The first is to take precautions against the risk of the consumer making a decision in a hurry. In distance contracts, it is not possible for the consumer to actually see or evaluate the product before the contract is established. The second reason is that it is easier to have a contractual obligation as distance communication tools significantly accelerate the method of making the contract[5].

According to paragraph 4 of Article 48 of the TPL; the consumer has the right to withdraw from the contract within fourteen days without giving any reason and without paying any penal clause. The seller or provider is obliged to prove that the consumer has been informed about the right of withdrawal. If the consumer is not duly informed about the right of withdrawal, he shall not be bound by the fourteen-day period to exercise his right of withdrawal. In any case, this period expires one year from the date of expiry of the withdrawal period.

In distance contracts, if the necessary information regarding the right of withdrawal is incomplete or not provided at all, the consumer may exercise the right of withdrawal within one year. If the seller or provider corrects this deficiency at a date after the conclusion of the contract, the 14-day withdrawal period will start to run from this date.

The timing of the commencement of this period set forth in the Law is regulated by the Regulation. The third part of the Regulation sets forth the regulations regarding the exercise of the right of withdrawal and the related obligations of the parties. According to Article 9 of the Regulation, the consumer has the right to withdraw from the contract within fourteen days without any justification and without penal clause. The right of withdrawal period starts on the day of the conclusion of the contract in contracts for the performance of services, and on the day the consumer or the third party designated by the consumer receives the goods in contracts for the delivery of goods. However, the consumer may also exercise the right of withdrawal within the period from the conclusion of the contract until the delivery of the goods. Pursuant to this regulation introduced by the Regulation, it is necessary to determine the nature of the contract in order to determine the beginning of the period for exercising the right of withdrawal.

The exercise of the right of withdrawal cannot be conditioned by the contract. The consumer has the right to unilaterally exercise the right of withdrawal within the fourteen-day period without any conditions. In the calculation of these periods, time calculation is made by taking into account the basic principles regarding the calculation of the periods in accordance with the provisions of Article 92/1 of the TCO and Article 92 of the CCP.

In determining the right of withdrawal period; for goods that are subject to a single order and delivered separately, the day on which the consumer or the third party designated by the consumer receives the last good; for goods consisting of more than one part, the day on which the consumer or the third party designated by the consumer receives the last part; in contracts where the goods are delivered regularly for a certain period of time, the day on which the consumer or the third party designated by the consumer first receives the goods is taken as basis (Art. 9/3 of the Regulation).

Delivery of the goods to the carrier is not considered as delivery to the consumer. It is regulated that the right of withdrawal provisions regarding the delivery of goods shall also be applied in contracts where the delivery of goods and performance of services are realized together (Art. 9/4-5 of the Regulation).

G. Are there any formal requirements for the exercise of the right of withdrawal?

The Law does not stipulate any formal requirements for the exercise of the right of withdrawal. It is deemed sufficient that the seller or provider is informed about the exercise of the right of withdrawal (Article 48/4 of the TPL). However, Article 11 of the Regulation stipulates that it is sufficient to notify the seller or provider in writing or via a permanent data storage device before the expiration of the right of withdrawal.

In exercising the right of withdrawal, the consumer may use the form provided as an example in the annex of the Regulation, in which some information regarding the elements of the contract may be written, or may make an explicit statement stating his/her decision to withdraw. In practice, most of the websites offer an option for the consumer to fill out this form and send their declaration of withdrawal through their websites. However, if this method is preferred, in the event that the right of withdrawal is offered to consumers through the website, the seller or provider is obliged to immediately notify the consumer of the confirmation that they have received the withdrawal requests submitted by the consumers (Art. 11/2 of the Regulation).

In distance contracts to which the consumer is a party, if the consumer exercises his/her right of withdrawal, the right of withdrawal may also be exercised in terms of ancillary contracts (Art. 14 of the Regulation). In case the consumer exercises his/her right of withdrawal, the ancillary agreements shall automatically terminate[6]. In this case, the contract terminates automatically without the consumer paying any expense, compensation or penal clause. In terms of distance contracts concluded by using the subsidiary credit regulated under Article 30 of the TPL, the subsidiary credit does not automatically terminate in case the right of withdrawal is exercised. The seller or provider is obliged to notify the other seller or provider who is a party to the ancillary contract that the consumer has exercised the right of withdrawal[7].

H. What Should the Consumer Do After Exercising the Right of Withdrawal?

The consumer is obliged to return the goods to the seller or provider or the person authorized by the seller or provider within ten days from the date of the notification of the exercise of the right of withdrawal to the seller or provider. As long as the consumer uses the goods in accordance with their functioning, technical specifications and instructions for use within the withdrawal period, the consumer is not responsible for any changes and deterioration (Art. 13 of the Regulation).

I. What are the Obligations of the Seller or Provider after the Consumer Exercises the Right of Withdrawal?

The seller or provider is obliged to refund all payments collected, including the costs of delivery of the goods to the consumer, if any, within ten days from the date of receipt of the notification that the consumer has exercised the right of withdrawal.

The seller or provider must make all refunds required under the Regulation in a single payment in accordance with the payment instrument used by the consumer when purchasing the goods and without any cost or obligation to the consumer.

The seller or provider must also inform the consumer about the carrier for the return in cases where the right of withdrawal can be exercised. Within the scope of this provision, if the consumer sends the goods back through the carrier specified by the seller for return, the consumer will not be responsible for the costs related to the return. If the seller does not specify any carrier for the return in the preliminary information, the seller cannot charge the consumer for the cost of return. In cases where the carrier specified in the preliminary information does not have a branch in the place where the consumer is located, the seller is obliged to ensure that the goods to be returned are received from the consumer without additional costs.

I. What are the Exceptions to the Right of Withdrawal?

Article 15 of the Regulation regulates the exceptions where the right of withdrawal cannot be exercised. According to this provision; “a) Contracts for goods or services whose price changes depending on the fluctuations in the financial markets and which are not under the control of the seller or provider, b) Contracts for goods prepared in line with the wishes or personal needs of the consumer, c) Contracts for the delivery of goods that may deteriorate quickly or expire, ç) Contracts for the delivery of goods whose protective elements such as packaging, tape, seal, package have been opened after delivery; which are not suitable in terms of health and hygiene, d) Contracts for the delivery of goods that are mixed with other products after delivery and cannot be separated due to their nature, e) Contracts for books, digital content and computer consumables presented in material media if the protective elements such as packaging, tape, seal, package are opened after the delivery of the goods, f) Contracts for the delivery of periodicals such as newspapers and magazines other than those provided under a subscription agreement, g) Contracts for accommodation, transportation of goods, car rental, food and beverage supply and leisure time for entertainment or recreation, which must be concluded on a specific date or period, ğ) Contracts relating to services performed instantly in electronic environment or contracts relating to intangible goods delivered instantly to the consumer, h) Contracts relating to services whose performance is started with the consent of the consumer before the expiry of the right of withdrawal period.” Unless otherwise agreed by the parties, the right of withdrawal cannot be used.

With this regulation, it can be said that the reason why the consumer is prevented from exercising the right of withdrawal is that it is not possible for the seller or provider to resell the goods to another person in the exceptional cases where the right of withdrawal is exercised. Although the regulations made pursuant to the Law and the Regulation are intended to protect the consumer, in some cases, not only the consumer but also the seller or the supplier should be protected. For these reasons, the legislator has prevented the use of the right of withdrawal for reasons such as hygiene etc. by specifying the exceptions to the right of withdrawal one by one[8].

J. Obligation to Retain Information

The seller or provider is obliged to keep the information and documents regarding each transaction regarding the right of withdrawal, information, delivery and other obligations regulated under the Regulation for three years (Art. 20/1 of the Regulation).

Pursuant to paragraph 5 of Article 48 of the TPL, those who intermediate the establishment of distance contracts on behalf of the seller or the provider by using or allowing the use of distance communication tools within the framework of the established system are obliged to keep records of the transactions made with the seller or the provider due to the matters set forth in this article and to provide this information to the relevant institutions, organizations and consumers upon request. However, those who act as intermediaries within the scope of this paragraph are liable for their acts contrary to the contract with the seller or provider.

K. Conclusion

K. ConclusionWith this article, we have included the basic elements regarding distance contracts and the elements that are important for the parties to the contract. The general rules we have included here may be interpreted differently in each concrete case.

In particular, the use of sample contracts by sellers and suppliers without applying them to their own sales processes may cause legal problems and risks. For this reason, it is important to prepare distance sales contracts with legal support from a lawyer experienced in the field of informatics and e-commerce, considering the long-term gains of distance sales contracts.

Attorney Senem Ersaçmış Yılmaz

For comments and questions about this article, please contact us at info@ertahukuk.com.

REFERENCES:

1.      YILMAZ, Oğuz Gökhan, Tüketici Hukukunda Mesafeli Sözleşmeler, TAAD, Yıl:4, Sayı:14 (Temmuz 2013), s. 1012; GEZDER, Ümit, Erzurumlu Şerhi Mesafeli Sözleşmeler, Beta Yayınları, İstanbul 2006, s. 24.

2.      (2) Bu Yönetmelik hükümleri;

a) Finansal hizmetler,

b) Otomatik makineler aracılığıyla yapılan satışlar,

c) Halka açık telefon vasıtasıyla telekomünikasyon operatörleriyle bu telefonun kullanımı,

ç) Bahis, çekiliş, piyango ve benzeri şans oyunlarına ilişkin hizmetler,

d) Taşınmaz malların veya bu mallara ilişkin hakların oluşumu, devri veya kazanımı,

e) Konut kiralama,

f) Paket turlar,

g) Devre mülk, devre tatil, uzun süreli tatil hizmeti ve bunların yeniden satımı veya değişimi,

ğ) Yiyecek ve içecekler gibi günlük tüketim maddelerinin, satıcının düzenli teslimatları çerçevesinde tüketicinin meskenine veya işyerine götürülmesi,

h) 5 inci maddenin birinci fıkrasının (a), (b) ve (d) bentlerindeki bilgi verme yükümlülüğü ile 18 inci ve 19 uncu maddelerde yer alan yükümlülükler saklı kalmak koşuluyla yolcu taşıma hizmetleri,

ı) Malların montaj, bakım ve onarımı,

i) Bakımevi hizmetleri, çocuk, yaşlı ya da hasta bakımı gibi ailelerin ve kişilerin desteklenmesine yönelik sosyal hizmetler

j) (Ek:RG-23/8/2022-31932)⁽¹⁾ Kısa mesaj aracılığıyla kurulan ve eş zamanlı olarak tamamen ifa edilen abonelik içermeyen katma değerli elektronik haberleşme hizmetleri ile 23/6/1983 tarihli ve 2860 sayılı Yardım Toplama Kanunu kapsamındaki bağışlar ve kamu kurumlarınca sunulan katma değerli elektronik haberleşme hizmetleri,

ile ilgili sözleşmelere uygulanmaz.

3.      GEZDER, Mesafeli Sözleşmeler, s. 27.

4.      KARA, İlhan, Yeni Kanuna Göre Tüketici Hukuku, Engin Yayınevi, Ankara 2015, s. 1021.

5.      GEZDER, Mesafeli Sözleşmeler, s. 165.

6.      ÇABRİ, Sezer, 6502 Sayılı Kanun’a Göre Tüketicinin Korunması Hakkında Kanun Şerhi, Adalet Yayınevi, Ankara 2016, s. 765.

7.      KARA, s. 1035.

8.      SERT SÜTÇÜ, Selin, 6502 Sayılı Tüketicinin Korunması Hakkında Kanun Hükümlerine Göre Tüketicinin Cayma Hakkı, Adalet Yayınevi, Ankara 2016, s. 70.