What are Distance Selling Contracts and the Right of Withdrawal?

Distance Selling Contracts and the Right of Withdrawal: Consumer Rights in Online Shopping

In the digitalized world, the heart of commerce has shifted to the internet. Ordering products or services from the other side of the world with a few clicks is now part of our daily routine. However, this speed and convenience also brings with it the risk of "buying without seeing." This is where "Distance Sales Contracts" and the "Right of Withdrawal" come into play, at the intersection of the Turkish Code of Obligations and the Law on Consumer Protection. For Turkish citizens living in Türkiye and foreign users purchasing digital services/products from our country, this right is essentially a kind of "safe haven.".

1. What is a Distance Selling Contract? A distance selling contract is a contract established between a seller or provider and a consumer using remote communication tools, without the simultaneous physical presence of both parties, within a system designed for the remote marketing of goods or services, from the moment the contract is established until and including the moment of its establishment. In other words, all purchases made through a website, application, or email fall under this category.

2. 14-Day Right of Withdrawal: The Consumer's Strong Shield According to consumer legislation, in distance sales, consumers have the right to withdraw from the contract within 14 days without giving any reason and without paying any penalty. This right is the "period of regret" for the consumer. However, the start of this period is very critical:

• In the sale of goods: The day the consumer or a third party receives the goods.
• In the provision of services: The day the contract is concluded. This 14-day period is granted to allow the consumer to physically inspect the product and understand the nature of the service. One of the most common problems our foreign clients encounter is that they believe the period starts "from the moment of purchase"; however, the law protects the consumer by taking the "moment of delivery" as the basis.

3. How to Exercise the Right of Withdrawal? To exercise your right of withdrawal, simply notify the seller. This notification can be in writing or via a permanent data storage medium (email, etc.). The seller is obligated to refund all payments made by the consumer (including delivery costs, if any) within 14 days of receiving the withdrawal notification. An important point here is that the consumer must return the product to the seller within 10 days of notifying them of their decision to withdraw.

4. Exceptions: Cases Where the Right of Withdrawal Does Not Apply Although it is a strong right, the legislator has limited this right in certain situations:

• Products whose prices are dependent on fluctuations in financial markets.
• Personalized products tailored to the consumer's specific needs.
• Products that are perishable or may expire.
• Opened packaging of hygiene products (cosmetics, underwear, etc.).
• Services or digital content offered instantly in an electronic environment (downloaded games, e-books).

5. Critical Warnings for Foreign Consumers: Foreign consumers shopping in Turkey sometimes experience problems with "return shipping costs." According to the law, if the distance selling contract states that the consumer will pay the return shipping costs arising from the exercise of the right of withdrawal, the consumer is obligated to pay this fee. However, if the seller has promised "free returns" or stated that they will cover the shipping cost, this cost belongs to the seller. It is vital for foreign consumers to read the "Preliminary Information Form" of websites in Turkey in English or a language they understand when shopping from these sites.

6. What to do in case of violation of the right of withdrawal? If the seller refuses the right of withdrawal, the consumer can apply to the Consumer Arbitration Board in their place of residence . If the amount exceeds the jurisdictional limit of the Consumer Arbitration Board (which increases annually with revaluation), a lawsuit must be filed in the Consumer Courts.

Contract Termination and Compensation: Rights and Compensation for Damages in Cases of Unilateral Termination

One of the most dramatic moments in contract law is the severance of the legal bond between parties through "termination." Under the Turkish Code of Obligations, the unilateral termination of a contract by one party generally has serious legal and financial consequences. Sudden separations, particularly in service contracts or employment relationships, often result in one party suffering losses or having their expectations dashed. So, how is the remaining "damage" calculated and compensated when a contract is unilaterally terminated?

1. The Right to Terminate a Contract and the Concept of "Just Cause" Contracts cannot normally be terminated unilaterally and arbitrarily due to the principle of "pacta servanda" (fidelity to the contract). However, the law recognizes the right to "termination for just cause" when the continuation of the contract becomes unbearable for one of the parties. Just cause is determined according to the nature of the contract, the conduct of the parties, and objective rules of good faith. For example, in a construction project, a contractor's failure to deliver the work on time, or a consultant's breach of confidentiality in a consulting service, constitutes a just cause for termination by the other party.

2. What is Unjust Termination and What are its Consequences? If there is no objective, legal, or contractual "just cause," the termination is considered "unjust termination." Unjust termination means that the party entering into the contract damages the other party's trust and expected profit. In Contract Law, this directly gives rise to liability for damages. The party that unjustly terminates the contract may be held liable to pay the other party the profit they would have obtained if the contract had continued (positive damages) and the expenses incurred due to the termination (negative damages).

3. Calculating Compensation: Positive and Negative Damages Compensation law focuses on two main types of damage:

• Negative Damage: This is the decrease in a party's assets if the contract had never been concluded. For example, expenses incurred in preparing the contract, legal consultancy fees, or other missed opportunities related to that contract.
• Positive Damage: This is the increase in the party's assets that would have occurred if the contract had been properly performed. In other words, it is the net profit that would have been obtained if the contract had not been terminated. The party terminating the contract without just cause is generally obliged to compensate the other party for these damages.

4. How to Claim Compensation? The first step in claiming compensation is to determine the legal nature of the termination notice. A termination notice is a statement that "must be delivered." If the contract includes a termination procedure (e.g., 30 days' prior written notice) and this procedure was not followed, the termination may be considered unfair. Proof of the amount of damage is essential for a compensation claim. Calculations of "loss of profit" are generally technical matters requiring expert examination.

5. Special Cases for Foreigners: Termination Processes in Turkey For foreign companies operating in Turkey or foreigners receiving services in Turkey, termination processes can be much more complex. The "termination culture" in the foreign parties' own countries sometimes conflicts with the mandatory provisions of the Turkish Code of Obligations. Especially in employment contracts or long-term commercial partnerships, a termination notice from a foreign party may be deemed invalid by Turkish courts on the grounds that it "did not comply with legal procedure." Therefore, when foreigners terminate their contracts in Turkey, obtaining a "legal opinion before giving notice of termination" from a Turkish lawyer will minimize potential compensation liabilities.

6. Non-Pecuniary Damages and Violation of Personal Rights: If the termination constitutes an attack on the other party's personal rights (for example, through false accusations or a malicious smear campaign), non-pecuniary damages may be claimed in addition to pecuniary damages. However, it should be remembered that in Contract Law, non-pecuniary damages are not a "means of enrichment"; their aim is to alleviate, to some extent, the emotional distress suffered.

7. The Importance of Including a "Penalty Clause" in Contracts The most effective way to protect against such disputes is to add "compensation in case of termination" or "penalty clauses" to contracts. If the parties have predetermined the amount of compensation to be paid in case of wrongful termination in the contract, they will not have to deal with difficult processes such as "calculating lost profits" during the litigation process. If this determined penalty clause is within reasonable limits, it will be enforced by the courts.

The Importance of Notarized Contracts for Foreigners: Legal Security and Risk Management in Türkiye

For foreigners entering into commercial or private relationships in Türkiye, one of the most critical legal concepts is the "notary institution." Many foreigners may think that in their own countries' legal systems, a notary is simply a signature verifier; however, in Türkiye, a notary is an authority that ensures the legal security of the document's content, uses the public authority granted by the state, and issues documents that constitute "conclusive evidence" in case of disputes. Especially in contracts involving foreigners, having these transactions carried out in the presence of a notary is one of the strongest safeguards against potential future grievances.

1. Why Does a Notarized Contract Create a Sense of "Necessity"? In Turkish law, the validity of some contracts is conditional upon them being drawn up "in the form of a notarized document." For example, contracts for the promise of sale of real estate, transfers of company shares, or certain acknowledgments of debt. In other contracts, while notarization is not a legal requirement, it is vitally important in terms of "proof of validity." When a foreign party signs a contract with a counterparty in Turkey, proving that the signature genuinely belongs to the other party or that the document was drawn up on that date is quite difficult without notarization (especially in cases involving a foreign element).

2. Language Barrier and the Sworn Translator Factor: In Turkey, for transactions conducted before a notary public, a sworn translator is a legal requirement for parties who speak a foreign language or are foreign nationals. This is one of the most important provisions of the notary law protecting foreigners. The notary must ensure that the foreign party understands all the clauses of the contract, its legal consequences, and responsibilities during the transaction. The sworn translator both translates the contract orally and explains the legal situation to the party at the signing stage. This prevents the foreign party from trying to cancel the contract later by saying, "I signed a document I didn't understand," and also protects the foreigner from being deceived.

3. Damages Arising from Signing Incorrect Contracts: The most frequent trauma experienced by our foreign clients is the unfair debts resulting from signatures they affix to simple, off-notary documents, often without knowing Turkish. Contracts not drawn up in the presence of a notary or read aloud by a sworn translator often contain clauses that restrict the foreigner's rights, impose high penalties, or completely eliminate the other party's obligations. In a transaction conducted at a notary's office, however, the notary has the authority to review clauses in the contract that are contrary to the law and to warn the parties. This "legal filter" largely prevents foreigners from engaging in incorrect transactions.

4. Conclusive Evidence and Enforceability: Contracts notarized or drawn up in the presence of a notary constitute "conclusive evidence" in Turkish courts. This means that one party cannot deny the signature or content of the contract by claiming "I didn't do it." For a foreigner seeking redress in Turkey, dealing with verifying a document in court would prolong the case and increase costs. A notarized document is directly accepted by the court, allowing for a much faster resolution of the case. Furthermore, contracts drawn up in the presence of a notary can be directly subject to enforcement proceedings, facilitating debt collection.

5. Processes Foreigners May Encounter at a Notary Public When you go to a notary public in Turkey as a foreigner, the process works as follows:

• Passport Translation: The notary requires a sworn translation of the passport to verify the foreign party's identity.
• Providing a Sworn Translator: Depending on the content of the document, the notary will arrange for a sworn translator to handle the process.
• Signature Declaration: For the transaction to be valid, the foreigner must provide a signature declaration before a notary public.
• Filing: The notary keeps a copy of the transaction in their archive, so that even if the original contract is lost, it is possible to obtain a new copy from the notary's office.

6. The Culture of "Notice" and "Warning Letter" in Notary Offices: In Turkey, not only contracts but also notices regarding the termination of contracts must be sent to a notary. If a foreign party notifies the other party through a notary that a debt has not been paid or that the contract has been terminated, this is considered a legally binding notification. While legal proof of notifications made by mail or email is difficult, a notice sent through a notary is the most powerful enforcement tool in the hands of the creditor.

7. Advice for Foreigners Regarding All Contracts to be Signed in Turkey;

• Always use a sworn translator: Make sure you understand every word of the contract.
• Choose Draft Contracts: Instead of "certified" (signature authenticated) contracts, drafted personally by a notary public, "draft" contracts offer greater security.
• Ask the Notary: A notary is a legal professional and a public servant. Don't hesitate to ask the notary about any clause in the contract that you have questions about.

In Turkish debt law, every signature affixed before a notary public serves as insurance for a foreign investor or individual's legal presence in Türkiye. Failing to obtain this insurance will protect you from years of compensation liabilities that a flawed contract could create.

Obligations Arising from Defective Goods and Services: Breach of Contract and Reimbursement Processes

One of the most common areas where contractual relationships turn into disputes is when a purchased product or service does not possess the promised qualities. This concept, referred to as "guarantee against defects" (liability for defects) in the Turkish Code of Obligations (TBK), covers a wide range of areas, from construction projects and consulting services to household appliances and software development. When a service or good does not have the characteristics agreed upon in the contract, it is considered "defective" in legal terms, and the buyer's right to exercise their legal rights in this situation is a requirement of contractual law.

1. Definition and Types of Defects A defect is when a good or service does not possess the characteristics agreed upon by the parties in the contract, or contains deficiencies that significantly reduce its value or intended use. Defects are divided into two categories:

• Obvious Defects: Defects that are apparent at first glance or through a simple examination.
• Hidden Defects: These are deficiencies that are not immediately noticeable but only become apparent through the use of the property or expert inspection. In construction projects, while cracks in walls can be considered obvious defects, insulation problems in the building's foundation fall into the "hidden defect" category. For foreign investors, hidden defects in housing projects in Turkey remain one of the most serious legal issues.

2. Detection of Defective Services and Obligation to Report When a defective product or service is encountered, the buyer's "obligation to report" begins. The law requires the buyer to inspect the product or service within a "reasonable period" from the moment of delivery and to notify the other party of any defects found.

• Notification period: For obvious defects, this period is usually very short. For hidden defects, notification must be given immediately when the defect becomes apparent.
• The importance of notification: If notification is not given, the buyer is deemed to have "accepted" the defect and subsequently loses the right to seek redress. Notification must be in writing (email, formal notice, etc.), as this strengthens your position in evidentiary law.

3. Buyer's Optional Rights The Turkish Code of Obligations grants the buyer four fundamental optional rights in the event of defective performance:

1. Termination of contract: Returning the goods and getting a refund. (If the defect is very serious).
2. Price reduction: Keeping the goods and requesting a price reduction proportional to the decrease in value caused by the defect.
3. Repair (Free repair): Requesting that the item be repaired free of charge.
4. Replacement (Exchange with an equivalent): The right to request replacement with a defect-free equivalent. The buyer is free to choose one of these rights, but once the chosen right has been notified to the other party (including through legal proceedings), it cannot be changed.

4. Defective Services and Refund Processes (Consulting and Construction Examples) In "service contracts," particularly those for consulting or software development, failure to achieve the desired outcome constitutes a defect. For example, if legal or financial consulting services are provided incorrectly to a foreign investor, or if the objectives stipulated in the contract are not met, this constitutes a "defective service." In this case, a refund of the consulting fee or compensation for damages becomes necessary. The situation is even more critical in construction projects; in the time period between the handover of the building and the discovery of hidden defects, a claim of "defective construction" can be made, leading to a demand for a reduction in the building's value or for repairs.

5. “Statute of Limitations” Warning for Foreign Investors: Statute of limitations periods in liability for defects are quite sensitive. Generally, in the sale of goods, a lawsuit can be filed within 2 years from the date of delivery, and even longer if the seller is grossly negligent (e.g., knowingly concealing the defect). For foreign parties, these periods are even shorter due to the necessity of conducting the dispute in Turkey. Expiration of the statute of limitations leads to loss of rights; therefore, it is vital to consult a lawyer as soon as a defect is discovered.

6. Compensation for Damages: Additional Compensation Rights A defective product or service is not just a matter of return; the buyer can also claim “other damages” caused by the defect. For example, damages resulting from a fire at the workplace due to a defective machine, or loss of rent due to defective construction. These damages can be claimed under the heading of “compensation,” independently of (or in conjunction with) the remedy of the defect.

7. Burden of Proof and Technical Expertise: In cases involving defective goods and services, the outcome often depends on "technical expert" reports. The court sends the case to an expert (civil engineer, software specialist, etc.). For foreigners, understanding the technical terminology in Turkey and questioning the accuracy of the expert's report can be difficult. Therefore, the professional collection of technical data and documents (photographs, technical review notes, emails) from the beginning of the dispute plays a decisive role in winning the case.

Defective goods and services lawsuits require a much more comprehensive legal battle than a simple return process. Knowing one's rights, notifying the seller in a timely manner, and strategically identifying one's options are key elements in minimizing commercial losses.