WHO IS RESPONSIBLE FOR PRODUCTS LOST OR DAMAGED IN SHIPPING? LEGAL LIABILITY REGIME AND CONSUMER RIGHTS REVIEW

Regarding the question of "who is responsible for products lost or damaged in transit";

Entrance

The enormous advancements in information technology, logistics networks, and e-commerce infrastructure on a global scale have fundamentally shifted the axis of commercial life from traditional retail to electronic commerce. Today, consumers can obtain goods and services from anywhere in the world via digital screens, independent of the limitations of physical spaces and geographical boundaries. One of the most critical elements of these remotely established contracts is the logistics and cargo operations that manage the process of delivering the ordered goods to the buyer. While the ownership of a purchased product remains with the seller, the contract, which takes place in a digital environment, is completed with the physical transportation of the product to the consumer. However, this transportation process carries certain risks, such as the physical integrity of the goods being compromised, lost, stolen, crushed, or completely destroyed.

One of the most common issues encountered by consumers and sellers in practice, and one that leads to the most legal disputes, is who is responsible for products lost or damaged during shipping. When an ordered product is lost in transit, or delivered broken, crushed, or unusable, consumers often suffer significant hardship due to conflicting statements from sellers such as, "Our responsibility ends after we hand it over to the shipping company; contact them," and shipping companies' responses like, "We are only the carrier; your point of contact is the seller." The legal framework for this issue is clearly defined within the Turkish Code of Obligations, the Turkish Commercial Code, and Law No. 6502 on the Protection of Consumers.

The main objective of this study is to examine, from an academic, in-depth, and detailed perspective, the principle of risk transfer in cases of lost or damaged goods during shipping, the nature of the legal relationship between the seller and the shipping company, the liability regime from a consumer law perspective, the burden of proof, the legal importance of the records to be kept in case of damaged delivery, and the legal remedies to be followed in this process.

1. The Principle of Transfer of Risk and Damage in Distance Selling Contracts

One of the fundamental principles of contract law is that the risk (damage) arising from the destruction or loss of goods during the period until the obligation is fulfilled belongs to the debtor. However, in the specifics of commercial law and consumer law, this rule has been made much stricter and more protective to safeguard the buyer/consumer, who is in a weaker position. According to the provisions of Law No. 6502 on the Protection of Consumers and related secondary legislation, the transfer of risk in distance selling contracts is regulated in favor of the consumer.

According to general legal principles, the seller is responsible for all risks of loss, damage, and deterioration during the period until the possession of the sold goods is transferred to the consumer or a third party designated by the consumer . If a product purchased online burns in the shipping company's warehouse, is lost during transport, falls from a truck, or is stolen before it is delivered to the consumer or their authorized representative, the consumer cannot be held responsible for this damage. The seller cannot say, "I shipped the product, the shipping company lost it, go and get your money back from them." A contractual relationship exists between the consumer and the seller; the shipping company is merely the seller's accomplice (transporter) in this contract. Therefore, the seller is obligated to deliver the product to the consumer flawlessly and completely.

2. Legal Relationship and Transportation Agreement Between the Seller and the Shipping Company

When a consumer makes a purchase from an e-commerce site, a transportation contract is concluded between the seller and the shipping company within the framework of the provisions of the Turkish Commercial Code. The seller, acting as the sender, delivers the goods to the shipping company and, in exchange for a specific fee, undertakes to deliver them to the buyer. Here, the consumer does not directly enter into a contract with the shipping company; the consumer has only signed a distance selling contract with the seller.

This legal framework determines how the chain of responsibility is established. While consumers have the right to sue the shipping company directly for damages or losses during cargo transportation, the primary legal party responsible is the seller. The seller is obligated to fulfill their duty of care when selecting a shipping company and obtaining transportation services. The seller is directly liable to the consumer for any fault or negligence on the part of the shipping company during transportation. The seller may recover damages from the shipping company through recourse; however, this internal relationship in no way affects or delays the consumer's rights.

3. Legal Situation and Consumer Rights in Case of Product Loss During Shipping

If an ordered product is completely lost during the shipping process, appears as lost in the system, is stolen from the shipping branch, or is not delivered at all, the consumer's rights are quite clear.

A. Replacement of the Product or Refund

Consumers do not have to wait for a product lost in transit. When a consumer contacts the seller and informs them that the product has not arrived, the seller is obligated to act immediately. At this stage, the consumer can choose one of two basic rights:

1. The product should be replaced with a brand new, faultless replica as soon as possible

2. The contract is terminated, and the full amount paid will be refunded in cash or to a credit card, along with legal interest.

The seller cannot offer excuses such as, "Let's get compensation from the shipping company, then we'll pay" or "Let's wait for the shipping company's investigation to finish." The investigation and compensation process with the shipping company is the seller's own business matter; the consumer's request for a refund or delivery of the product cannot be tied to this process.

B. Cargo Tracking and Burden of Proof

In cases of loss during shipping, the burden of proof rests with the seller. The seller must prove that the product was delivered to the consumer or a person authorized by the consumer, a signed delivery receipt or official delivery code. If there is no signed delivery document and the shipment does not reach the consumer despite appearing as "delivered," the product is legally considered lost, and all responsibility falls on the seller.

4. Damage to the Product During Shipping (Breakage, Crushing, Deterioration)

Aside from the complete loss of the product, the second most common situation is when the shipping package appears intact from the outside but the contents are delivered broken, crushed, scratched, leaking liquid, or otherwise unusable. In cases of damaged delivery, the correct application of the legal liability regime is of vital importance.

A. Distinction Between Obvious Damage and Latent Damage

In our legal system, damaged deliveries are divided into two groups:

• Obvious Damage: This refers to damage that is immediately visible from the outside of the shipping package, such as dents, tears, water damage, torn tape, or obvious deformation. In such cases, the consumer should open and inspect the package in the presence of the delivery person.

• Hidden Damage: This occurs when a shipping package appears perfectly intact from the outside, securely taped, and flawless, but the consumer discovers upon opening it that the device's screen is broken, the appliance's casing is dented, or the electronic device is malfunctioning. In cases of hidden damage, the fact that a damage report could not be filed in the presence of the delivery person because the package appeared intact from the outside does not negate the consumer's rights.

B. Background and Legal Nature of the Damage Assessment Report

If the package shows obvious damage, the consumer should not allow the delivery person to leave and should immediately ensure that a "Damage Assessment Report" is prepared. If the delivery person refuses to prepare a report, the consumer can return the package without accepting delivery or have a report prepared at the branch. The existence of a damage assessment report is the strongest evidence proving that the damage was caused by the shipping company during transport.

However, in cases of hidden damage (where the packaging is intact but a broken product is found inside), the consumer must notify the seller and the shipping company in writing as soon as possible after receiving the product (usually within 24-48 hours), documenting the situation with photographs. The fact that a report could not be drawn up in the presence of the delivery person does not negate the fact that a product with hidden defects/damage was received and the seller's responsibility. Supreme Court precedents also support the protection of the consumer in cases of hidden damage.

5. Legal Invalidity of Sellers' and Shipping Companies' Liability Avoidance Tactics

In practice, there are some common arguments that sellers and shipping companies use to evade liability. These arguments have no legal validity:

• "Package Received Without Inspection": The statement "If you had inspected the package upon delivery, we would not accept responsibility after you signed"—a common excuse sellers use—is legally invalid. Consumers are not obligated to spend hours inspecting every package at their door. Signing the delivery receipt, especially in cases of hidden damage, does not guarantee that the product has been received in perfect condition.

• “Contact the Shipping Company”: It is completely against the law for the seller to say, regarding a broken or lost product, “We shipped it in perfect condition, the shipping company broke it, you should file a compensation claim.” There is no contract between the consumer and the shipping company; the consumer's point of contact is the seller.

• "Uninsured Shipment": If a seller agrees with a shipping company to ship the product without insurance or declare a lower value, this does not justify passing on any resulting damages to the consumer. The risk during transportation belongs to the seller.

6. Consumer's Optional Rights in Case of Damage or Loss During Shipping

Products lost or damaged in transit are legally defective goods . According to Article 11 of Law No. 6502, consumers have the following optional rights in this situation:

1. Requesting a full refund by withdrawing from the contract

2. To request that the product be replaced with a faultless equivalent (a brand new, flawless item),

3. Keeping the damaged goods and requesting reimbursement for repair costs or a price reduction proportional to the defect.

The consumer is completely free to choose whichever of these rights they prefer. In the case of a damaged or lost product, requests for a refund or exchange are generally preferred to compensate for the inconvenience caused by the shipping process. The seller cannot simply say, "We can only repair it," and send the damaged product to a service center; because the product, purchased brand new, was delivered broken or incomplete to the consumer.

7. Legal Remedies Available in Case of Damage or Loss During Shipping

If the seller fails to refund the price or send a replacement for an item lost or damaged in transit, the consumer has various formal and legal avenues to pursue.

A. Consumer Arbitration Boards (CABs)

Consumer Arbitration Boards are the first and most effective body that ensures disputes are resolved quickly, easily, and inexpensively without going to court. Located in every city and district center, these boards make binding decisions within certain monetary limits.

• Consumers can apply to the Consumer Arbitration Board located in their place of residence or where the seller is located.

• Applications can easily be made digitally through the e-Government portal (Consumer Information System – TKS) by uploading invoices, delivery receipts, damage reports, product photos, and correspondence with the seller.

• Decisions of the Consumer Arbitration Board are binding on the parties and have the force of a judgment; that is, they can be directly enforced like a court decision.

B. Consumer Courts

For disputes exceeding the monetary limits of Consumer Arbitration Boards, or for appeals against arbitration board decisions, the competent and authorized body is the Consumer Court. According to Law No. 6502, mediation is mandatory before filing a lawsuit in the Consumer Courts established within the Civil Courts of First Instance. It is compulsory to seek the assistance of a qualified mediator before bringing the dispute to court.

C. Complaints to the Ministry of Trade and CİMER (Presidential Communication Center)

If sellers shift the responsibility for lost products in transit to consumers, refuse returns of damaged products, or engage in unfair trade practices, these can be reported to the General Directorate of Consumer Protection and Market Surveillance of the Ministry of Trade or to the Advertising Board via CİMER (Presidential Communication Center). As a result of these administrative applications, the relevant companies may be subject to heavy administrative fines.

8. Practical and Legal Steps Consumers Should Take to Avoid Loss of Rights

Just as having legal rights is crucial, so is being able to exercise those rights in a timely and proper manner to prevent the loss of rights. To avoid problems during the shipping process, or to prove the validity of one's rights if problems arise, consumers should pay attention to the following strategic steps:

• Package Inspection During Delivery: If the package appears crushed, torn, wet, or has its seals broken upon delivery, the package should be opened in the presence of the delivery person, and a "Damage Assessment Report" should be immediately completed.

• Prompt Reporting of Hidden Damage: If the package appears intact from the outside but the product is found to be broken or damaged upon opening, the situation must be immediately documented with photographs and reported to the seller in writing (using a permanent data storage medium) within 24-48 hours.

• Keeping Delivery Receipts: The receipts signed upon delivery and the tracking numbers should be kept as proof of the process. If the delivery never arrives, an official "Undelivered / Lost" document should be requested from the shipping branch.

• Written Communication: Communication with the seller should not be limited to verbal phone calls; requests for a refund or replacement should be made in writing via email, support request, or registered mail.

Conclusion

The liability regime for products lost or damaged during shipping is very clearly regulated in Turkish consumer law and principles of contract law. In distance selling contracts, the risk and damage belong to the seller until the goods are physically delivered to the consumer or their authorized representative. Since the shipping company acts as an accomplice to the seller's performance, the seller is directly responsible for any loss or damage occurring during transportation. Statements by the seller such as "Liability ends after shipping" or "Contact the shipping company" are legally invalid.

Consumers' vigilance during cargo delivery, documenting any obvious damage, immediately reporting any hidden damage to the seller, and effectively utilizing Consumer Arbitration Boards and other legal authorities in case of disputes play a critical role in preventing loss of rights. A conscious consumer awareness and a firm legal stance constitute the greatest guarantee for a more transparent, honest, and reliable structure in the e-commerce and cargo sectors.