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Implementing Regulation of Distance Contracts

IMPLEMENTING REGULATION ON DISTANCE CONTRACTS

CHAPTER ONE

Purpose, Scope, Legal Basis and Definitions

Purpose

ARTICLE 1 – (1) The purpose of this Implementing Regulation is to regulate the implementing procedures and principles on distance contracts.

Scope

ARTICLE 2 – (1) This Implementing Regulation covers the distance contracts.

(2) The provisions of this Implementing Regulation shall not apply to contracts:

  1. a) related to financial services,
  2. b) concluded by means of automatic vending machines,
  3. c) concluded with telecommunications operators through the use of public payphones,
  4. d) for gambling, which involves wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions,
  5. e) or the creation, acquisition or transfer of immovable property or of rights in immovable property; concluded for the construction and sale of immovable property or relating to other immovable property rights,
  6. f) for rental of accommodation for residential purposes,
  7. g) for package tours,
  8. h) for timeshare, long-term holiday product, resale and exchange contracts,
  9. i) for the supply of foodstuffs, beverages or other goods intended for everyday consumption supplied to the home of the consumer, to his residence or to his workplace by regular rounds men
  10. j) for passenger transportation services provided that the obligation to information stipulated in (a), (b) and (e) paragraphs of article 5 and obligations stipulated in articles 18 and 19 are reserved,
  11. k) for assembly, maintenance and repair of goods ,
  12. l) for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care

Legal Basis

ARTICLE 3 – (1) The legal basis for this Implementing Regulation is articles 48 and 84 of the Law No. 6502 of 7 November 2013 on Consumer Protection.

Definitions

ARTICLE 4 – (1) For the purpose of this Implementing Regulation;

  1. a) ‘Digital content’ shall mean data which are produced and supplied in digital form; such as computer program, application, game, music, video and text,
  2. b) ‘Service’ shall mean the subject matter of any kind of consumer related act performed or undertaken to be performed in return for a fee or interest, except for delivery of goods,
  3. c) ‘Durable media’ shall mean any instrument such as text messages, electronic mails, internet, disk, CD, DVD, memory card, etc., which enables the consumer to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored,
  4. d) ‘Law’ shall mean the Law No. 6502 on Consumer Protection,
  5. e) ‘Goods’ shall mean movable properties, immovable items for dwelling or for vacation, and all kinds of intangible items such as software, sound audio, display image, etc. prepared for use with electronic media that are the subject matter of purchase or sale,
  6. f) ‘Distance contract’ shall mean any contract concerning goods or services concluded between a supplier and a consumer under an organized distance sales or service-provision scheme run by the supplier, who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded,
  7. g) ‘Supplier’ shall mean any natural or legal person who is acting in his commercial or professional capacity,
  8. h) ‘‘Seller’ shall mean any natural or legal person, including the public legal persons, delivering goods to the consumer for commercial or professional purposes or those acting in the name or account of such provider of goods,
  9. i) ' Consumer’ shall mean any natural or legal person acting without any commercial or professional purpose,
  10. j) ‘Means of distance communication’ shall refer to any means such as postal mail, catalogue, telephone, fax machine, radio, television, electronic mail, text message, Internet, ATM, etc., which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of the contract between those parties,
  11. k) ‘Ancillary contract’, for the purpose of distance contracts for financial services, shall mean any contract concerning goods or services provided to the consumer by the seller, supplier or a third party in addition to the goods and services, which is the subject of the contract.

CHAPTER TWO

Communication of Prior Information

Prior Information

ARTICLE 5 – (1) The following matters shall be communicated to the consumer in the way eligible for the means of communication used, before the supplier expresses his intention for the conclusion of a distance contract or before the consumer is bound by a contract.

  1. a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services,
  2. b) The main economic activity, MERSİS number, name and title of the supplier and his representative, if any,
  3. c) In case of involvement of an intermediary during provision of the service between the supplier and the consumer or the seller and the consumer; name, title, open address of the intermediary and the types of operations the intermediary is authorised to perform,
  4. d) contact information of the seller or the supplier other than the information mentioned in paragraph (c) to which the consumer may address any complaint,
  5. e) total price of the financial service including all taxes; when an exact price cannot be indicated, the basis for the calculation of the price and the fees and charges related to execution, if any, and when an exact price cannot be indicated for the latter, information on the possibility to pay for additional costs,
  6. f) the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate,
  7. g) the arrangements for payment, delivery, performance, the time by which the seller or supplier undertakes to deliver the goods or to perform the services and, where applicable, his/her complaint handling policy,
  8. h) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right and information on the carrier to be used for the return,
  9. i) Open address, fax number or e-mail address to which the consumer exercises the right of withdrawal,
  10. j) where a right of withdrawal is not provided for in accordance with Article 15, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal,
  11. k) where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the seller or supplier,
  12. l) where applicable, the functionality, including applicable technical protection measures, of digital content,
  13. m) where applicable, any relevant interoperability of digital content with hardware and software that the seller or supplier is aware of or can reasonably be expected to have been aware of,
  14. n) the possibility of having recourse to Consumer Court or Arbitration Committee for consumer problems in case of any dispute.

(2) The information referred to in paragraph 1 shall form an integral part of the distance contract and shall not be altered unless the contracting parties expressly agree otherwise.

(3) If the seller or supplier has not complied with the information requirements on additional charges or other costs as referred to in point (e) of paragraph 1, the consumer shall not bear those charges or costs.

(4) The total cost referred to in sub paragraph (e) of paragraph 1 shall include the total costs per every invoicing period both in unlimited duration contracts and limited duration contracts.

(5)  In case of a public auction, the information referred to in points (b), (c) and (d) of paragraph 1 may be replaced by the equivalent details for the auctioneer.

(6) Burden of proof concerning the existence of prior information shall belong to the seller or supplier.

Method for Communicating Prior Information

ARTICLE 6 – (1) All matters stated under paragraph one of article 5 shall be communicated to the consumer by the supplier, either on paper or on durable medium, in a clear and comprehensible manner in any way appropriate to the means of communication used and by using at least twelve font size.

(2) If a distance contract to be concluded by electronic means, the seller or the supplier;

  1. a) shall make the consumer aware in clear and prominent manner, directly before the consumer enters into a commitment, of the information provided for in paragraphs (a), (e), (h), and (i) of article 5, provided that the liability stipulated in paragraph one of article 5 is reserved.,
  2. b) shall make the consumer aware in clear and prominent manner, directly before the consumer places his order, of the information whether the delivery is subjected to any restriction and possible means of payment.

 

(3) Where a distance contract is to be concluded by telephone, the seller or the supplier shall make the consumer aware in clear and prominent manner, directly before the consumer places his order, of the information provided for in subparagraphs (a), (e), (h), and (i) of paragraph one of the article 5; and shall submit the information referred to in paragraph 1 of article 5 in writing at the latest at the time of the delivery of the goods or before the performance of the service begins. 

(4) If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the seller or the supplier shall make the consumer aware in clear and prominent manner, directly before the consumer places his order, of the information provided for in subparagraphs (a), (e), (h), and (i) paragraph one of the article 5; and shall submit the information referred to in paragraph 1 of article 5 in writing at the latest at the time of the delivery of the goods or before the performance of the service begins.

(5) If the contract is to be concluded through methods referred to in paragraphs 3 and 4 for sales of services which is performed right away, it is enough to make the consumer aware in a clear and prominent manner, directly before the consumer places his order, of the information provided for in sub paragraphs (a), (b), (e) and (i) of paragraph one, Article 5.

Confirmation of Prior Information

ARTICLE 7 – (1) The seller or the supplier shall make the consumer confirm that he has received prior information through methods referred to in article 6 in line with the distance communication mean used. Otherwise the contract shall not be in effect.

Other Liabilities

ARTICLE 8 – (1) The seller or the supplier shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. Otherwise the consumer shall not be bound with the order.

(2) If the seller or the supplier makes a telephone call to the consumer with a view to concluding a distance contract, he shall, at the beginning of the conversation with the consumer, disclose his identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call.

CHAPTER THREE

Right of Withdrawal and Liabilities of the Parties

Right of Withdrawal

ARTICLE 9 – (1) The consumer shall have a period of 14 days to withdraw from a distance contract, without giving any reason, and without incurring any costs.

 (2) The withdrawal period shall start on the day of the conclusion of the contract in the case of service contracts and on the day on which the consumer or a third party indicated by the consumer acquires physical possession of the goods in the case of sales contracts. However the consumer may also have the right to withdraw within the period from the day of the conclusion of the contract to the day on which the goods are possessed.

           (3) In the calculation of the period for the exercise of this right the following shall be taken as the basis:

  1. a) in case of multiple goods ordered by the consumer in one order and delivered separately, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last good,
  2. b) in case of delivery of a good consisting of multiple lots or pieces, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last lot or piece,
  3. c) in case of contracts for regular delivery of goods during defined period of time, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the first good.

(4) Delivery of the good from the seller to the carrier shall not be considered as delivery to the consumer.

(5) Withdrawal right provisions for goods shall prevail, in case the contract covers both goods and services.

Omission of information on the right of withdrawal

ARTICLE 10 – (1) The seller or the supplier shall be obliged to prove that the consumer is informed on right of withdrawal. Should the consumer is not informed on the right of withdrawal in the due manner, the consumer shall not bound with the period of 14 days to exercise this right. The withdrawal period shall expire 12 months from the end of the initial withdrawal period.

(2)  If consumer is provided with the information in question within 12 months, the withdrawal period shall expire 14 days after the day upon which the consumer receives that information.

Exercise of the right of withdrawal

ARTICLE 11 – (1) Before the expiry of the withdrawal period, the consumer shall inform the seller or the supplier of his decision to withdraw from the contract in writing or via durable media.

(2) the consumer may use the model withdrawal form enclosed herewith or make any other unequivocal statement setting out his decision to withdraw from the contract. The seller or the supplier may give the option to the consumer to electronically fill in and submit the form or the statement. In those cases the seller or the supplier shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.

(3) Where a distance contract is to be concluded by telephone, the seller or the supplier shall send the form enclosed herewith to the consumer at the latest at the time of the delivery of the goods or before the performance of the service begins. The consumer may use this form to exercise the right of withdrawal or may use the other method described in paragraph 2.

(4) The burden of proof of exercising the right of withdrawal in accordance with this Article shall be on the consumer.

Obligations of the seller or the supplier

ARTICLE 12 – (1) The seller or the supplier shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract.

(2) The seller or the supplier shall carry out the reimbursement referred to in the first subparagraph at once using the same means of payment as the consumer used for the initial transaction and provided that the consumer does not incur any fees as a result of such reimbursement.

(3) Within the framework of Article 5, paragraph one, subparagraph (h), if the good is returned via the carrier indicated by the seller, the consumer shall not be responsible for any costs of return. If the seller does not indicate any carrier in the prior information, he cannot request any payment from the consumer for the return. In the event that the carrier company does not have any office where the consumer lives, the seller shall be obliged to have the good to be collected from the consumer without asking any other cost.

Obligations of the consumer

ARTICLE 13 – (1) Unless the seller or the supplier has offered to collect the goods himself, the consumer shall send back the goods or hand them over to the trader or to a person authorized by the seller or the supplier to receive the goods, without undue delay and in any event not later than 10 days from the day on which he has communicated his decision to withdraw from the contract.

(2) The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods.

Effects of the exercise of the right of withdrawal on ancillary contracts

ARTICLE 14 – (1) if the consumer exercises his right of withdrawal from a distance contract, provided that the provisions of Article 30 of the Law are reserved, any ancillary contracts shall be automatically terminated. The consumer shall not pay any costs, compensation or fees except for the conditions referred to in article 13.

(2) Seller or the supplier shall inform the third party, being one of the parties of the ancillary contract, immediately of the withdrawal of the contract by the consumer.

Exceptions from the right of withdrawal

ARTICLE 15 – (1) Unless the parties have agreed otherwise, the consumer shall not exercise the right of withdrawal in respect of contracts:

  1. a) for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier or seller,
  2. b) for the supply of goods made to the consumer's specifications or clearly personalized.
  3. c) for supply of goods that are liable to deteriorate or expire rapidly,
  4. d) for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.
  5. e) for the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items.
  6. f) for the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery
  7. g) for the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications.
  8. h) for the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance.
  9. i) for the services rendered right away via electronic medium or intangible goods delivered right away
  10. j) for the services started to be given upon the consent of the consumer before the expiration of right of withdrawal period

CHAPTER FOUR

Other Provisions

Performance of contract and delivery

ARTICLE 16 – (1) The seller or the supplier shall fulfill its commitment as from the receipt of the order of the consumer without undue delay. In sales of goods this period shall not be later than 30 days from the conclusion of the contract.

(2) If the seller or the supplier fails to fulfil his obligation referred to in paragraph one, the consumer shall be entitled to terminate the contract.

(3) Upon termination of the contract, the seller or the supplier shall, without undue delay, reimburse all sums paid under the contract within 14 days as from the date of receipt of the termination notice, including legal interest to be calculated as per the article 1 of the Law No 3095 of 4 December 1984 on Interest and Default Interest. Furthermore the seller or the supplier shall return all negotiable instruments and papers that obligate the consumer to pay.

(4) Where the delivery of the goods or performance of the service becomes impossible, the seller or the supplier shall inform the consumer in writing or via durable media in three days after the seller or the supplier have access to this information, and shall return all costs collected including the delivery costs at the latest within 14 days as from the date of the notice. Any good being out of stock shall not be considered as impossibility of delivery of goods.

Liability for damage

ARTICLE 17 – (1) Where the seller dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods.

(2) The risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the seller.

Communication by telephone

ARTICLE 18 – (1) Where the seller or the supplier operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the seller or the supplier, is not bound to pay more than the basic rate.

Additional payments

ARTICLE 19 – (1) Before the consumer is bound by the contract or offer, the seller or supplier shall seek the express consent of the consumer to any extra payment in addition to the remuneration agreed upon for his main contractual obligation.

(2) If the seller or the supplier has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this payment.

Storage of data and burden of proof

ARTICLE 20 − (1) The seller or the supplier shall be obliged to store data and documents on the operations related to his obligations on the right of withdrawal, prior information, delivery and other obligations for a period of three years.

(2) Those, who act as an intermediary for the conclusion of a distance contract for financial services in the name of the supplier under the system established by the use of or enabling the use of means of distance communication, shall be liable to store the records of the operations performed under this Implementing Regulation for a period of three years and present the same to the relevant agencies, organisations and the consumers upon demand.

(3) The seller or the supplier shall be obliged to prove that the intangible goods or services delivered to the consumer via electronic media are free from defect.

CHAPTER FIVE

Miscellaneous and Final Provisions

Abolished regulation

ARTICLE 21 – (1) The Regulation No 27866 and of 6 March 2011 on Distance Contracts was abolished.

Enforcement

ARTICLE 22 – (1) This Implementing Regulation shall be in force after three months from the date of its publication.

Execution

ARTICLE 23 – (1) The provisions of this Implementing Regulation shall be executed by the Minister of Customs and Trade

ANNEX

COPY OF WITHDRAWAL FORM

(This form will be completed and sent when only the right of withdrawal from the contract is to be exercised.)


-To: (This part will be completed by the supplier. Name, title, address, fax number, if any, and e-mail address of the supplier.)

- I hereby declare that I am exercising my right to withdraw from the contract concerning the provision of the below stated services.

-Date of order or date of delivery

-Good or Service subject to the right of withdrawal:

-Cost of the Good or Service subject to the right of withdrawal:

-Name and surname of the consumer:

-Address of the consumer:

- Signature of the consumer: (In case submitted only on paper)

-Date: