SUMMARY: The manufacturing defect of a product is a “hidden defect”. It should be accepted that the consumer who purchases a product with a defect that is not noticed at first glance and which is understood by a detailed examination to be made later, can use the optional rights arising from the law.

Y.HGK E.2017/694 K.2020/71 T.04.02.2020

1- The plaintiff claimed that the vehicle purchased from the defendant Ç. Oto Ltd. Şti was defective and demanded replacement and compensation. It is understood that the court decided to accept the request for replacement on the grounds that the vehicle subject to the lawsuit was not mechanically and materially resistant to impact, referring to the expert committee report dated 05/04/2012, which was obtained by instruction during the trial. The dispute between the parties is whether this malfunction is caused by user error or manufacturing defect, and according to the contents of the file examined; It is fixed that the malfunction that occurred in the vehicle subject to the lawsuit occurred as a result of the stone hitting the radiator of the vehicle during the cruise, piercing the radiator and causing it to overheat, and there is no dispute on this issue.

In the expert report dated 08/07/2010 issued by the plaintiff after the determination made by the Balıkesir 1st Civil Court of First Instance with the file numbered 2010/92 Amended Work, it was stated that the vehicle subject to the lawsuit does not have a part to protect the radiator in case of gravel splash, and on the other hand, the defendants claimed that the protective part is a part that should be evaluated within the scope of equipment and that this part is not available in the vehicle subject to the lawsuit due to the price and model difference, but it is understood that the court has not conducted an investigation on this issue. As such, while the court should investigate whether the radiator protective part specified in the expert report dated 08/07/2010 is available in the vehicles of the same model as the vehicle subject to the lawsuit and make a judgment accordingly, it is contrary to the procedure and the law to decide to accept the lawsuit with the written justification, and it is a reason for reversal.

2-Article 49 of the Code of Obligations No. 818 (Code of Obligations), which is regulated under the chapter of torts, is also applicable to acts contrary to the contract with the reference to Article 98/2 of the same Code. However, in order for the request for moral damages to be accepted according to the provision of the aforementioned article, the existence of an unlawful, unjustified attack on personal rights is a prerequisite, among other conditions. It is not possible to accept that the defendant's refusal to accept the plaintiff's request for repair under warranty constitutes an attack on personal rights. In that case, it cannot be said that the conditions for non-pecuniary damages exist in this case. Nevertheless, the court's award of non-pecuniary damages is contrary to the procedure and the law and requires reversal.

3- Although it is understood that the court decided to collect 1200.TL from the defendant as the car rental fee for the benefit of the plaintiff, it is understood that the documents regarding the proof of material damage are not in the file. For this reason, while it should be decided to reject the plaintiff's request regarding the car rental fee, it is contrary to the procedure and the law to decide to accept it as written and requires reversal.

4-According to the reasons for reversal, it was not deemed necessary to examine the defendant's other appellate objections.”

Decision to Resist:

9. İzmir 1st Consumer Court dated 15.09.2015 and 2015/17 E., 2015/930 K. With the decision numbered; The reversal decision of the Special Chamber regarding the rejection of the claims for non-pecuniary damages and car rental fee was complied with, and the reversal decision regarding the request for the replacement of the vehicle with a defect-free equivalent was complied with, together with the previous reasons, in all the reports brought to the file and especially in the reports of the three-person expert committee from the Middle East Technical University, radiators should be designed to be resistant to external factors and not to be pierced by small stone impacts, and since the vehicle subject to the lawsuit can crack with a small stone impact, it is concluded that the mechanical and material properties of the radiator are not resistant to this impact and the existing defect is considered as a hidden defect caused by manufacturing, in addition, it is possible that the driver may not notice this according to the speed of discharge of the coolant with the current impact, Since there is no information and document submitted or determined in this regard, the main issue to be evaluated is that it should be accepted that there is a hidden defect caused by production due to the fact that materials and materials of sufficient strength are not used for the radiator, and when the issue that the defendants' defense that it is related to the hardware should be evaluated in the Court of Cassation reversal judgment is examined, If the protective part of the radiator is not included in the equipment of this vehicle, the defendant party should not offer the vehicle without a protective part for sale, and if it offers it for sale, this time it has to make its design and material resistant to external impacts, in other words, the plaintiff has chosen the model and equipment that his budget allows, and it is unthinkable for him to bear the consequences of the failure that will occur in the upper model or because he did not choose this optional part.

Appeal of the Resistance Decision:

10. The resisting decision was appealed by the counsel of the defendant ... Otomotiv Sanayi ve Ticaret A.Ş. within due time.

II. DISPUTE

11. The dispute that came before the General Assembly of Civil Chambers by way of resistance is centered on whether the investigation of whether there is a radiator protective part in the same model vehicles regarding the determination of whether the conditions for the replacement of the vehicle subject to the lawsuit with a defect-free equivalent exist or not will be effective on the merits.

III. RATIONALE

12. In the resolution of the dispute, it is useful to first focus on the concept of “defect”.

13. The regulation regarding the defect is included in Article 4 of the Law No. 4077 on the Protection of Consumers (TKHK), which should be applied as of the date of the lawsuit.

14. Paragraph 1 of the aforementioned Article states; “Goods or services that are contrary to the quality and/or quantity specified in the packaging, label, introduction and user manual or promised by the seller or determined in the standard, or that contain material, legal or economic deficiencies that reduce or eliminate their value in terms of allocation or intended use or the benefits that the consumer expects from them, are considered defective goods or defective services.” and the following paragraphs list the formal conditions regarding this.

15. Article 194 of the abrogated Code of Obligations (CO) No. 818 reads as follows “The dealer undertakes to the customer that the goods shall be free from defects which, by reason of a material or legal cause, impair or materially diminish the value or the intended benefit of the goods, as well as from the qualities mentioned and promised. Even if the dealer does not know the existence of these defects, he is liable for them”.

16. As can be seen, the concept of defect in the Code No. 818 and the concept of defect in Article 4 of the above-mentioned Article 4 of the CPL No. 4077 overlap with each other.

17. Defect is the absence of qualities that should normally be present in a good according to the provisions of the contract and the law or the presence of defects that should not be present.

18. In this framework, while determining the content of the concept of “defect”, the provisions of the contract should be examined first. The first issue to be examined when considering the contract is whether there is an explicit agreement between the parties on which features the goods sold should contain. In the absence of an agreement, it will be examined whether the parties have tacitly made an agreement on this issue based on the interpretation of the contract. In cases where there is not even an implied agreement, the entire contract will be taken into consideration and the characteristics that the goods should bear will be determined according to the rule of honesty. In this sense, the defect will arise in the event that the goods do not have the qualities that the goods should have according to the contract, or in the absence of a special provision in this regard, the lack of qualities that should be present in the goods, taking into account the nature and content of the contract.

19. The defect in the goods sold may be in the form of open or hidden defects. Explicit defects are defects that can be seen at first glance or understood by a simple inspection. On the other hand, hidden defects are defects that cannot be recognized at first glance and can be understood by a detailed examination to be made later. Such defects are generally related to the structure of the goods and are understood by use.

20. Article 4/2 of the TPL No. 4077 specifies the optional rights of the buyer in case the goods are defective, and in this case, the consumer has the right to return from the contract including the return of the price, replacement of the goods with a defect-free equivalent, or a price reduction in proportion to the defect, or free repair. The seller is obliged to fulfill this request preferred by the consumer. Along with one of these optional rights, the consumer also has the right to demand compensation from the manufacturer-manufacturer in cases where the defective goods cause death or injury and cause damage to other goods in use.

21. Regarding the optional rights of the buyer, Article 202/1 of the Code No. 818 stipulates that in case the goods are defective, the buyer may request the termination of the contract by declaring that he is ready to return the sold goods, or he may retain the sold goods and ask for the deduction of the semen in return for the deficiency of its value.

22. Article 202/2 of the Code No. 818 states that upon the buyer's request for termination of the contract in case of defect, the judge may decide to deduct the sums if the circumstances do not justify the termination of the contract.

23. Article 203 of the Code No. 818 stipulates that if the goods sold are of a like kind, the buyer may, if he wishes, demand the replacement of the goods with a defect-free like kind, without demanding either the termination of the contract or the reduction of the price.

24. As a matter of fact, the same points were pointed out in the decision of the General Assembly of Civil Chambers dated 27.06.2019 and numbered 2017/13618 E., 2019/792 K.

25. When the concrete case is evaluated in the light of these explanations; there is no dispute between the Local Court and the Special Chamber that the vehicle malfunctioned as a result of a crack caused by a piece of stone hitting the radiator of the vehicle while the vehicle subject to the lawsuit was in motion, causing the cooling water to be missing and causing overheating. As explained in detail above, the definition of defect is the absence of qualities that should normally be present in a good or the presence of defects that should not be present. Since the expectation of the consumer from a vehicle purchased by the consumer is driving with minimum safety, there should be no hesitation that the vehicle sold with missing parts without the material to protect the radiator from gravel splashes that may be possible in every drive is defective.

26. Although it is stated in the Special Chamber's reversal decision that it is necessary to investigate whether there is a part to protect the radiator mentioned in the vehicles of the same model as the vehicle subject to the lawsuit, and therefore, if the others do not have it, it may be a hardware issue as stated in the defense, since it is concluded that the introduction of a vehicle that is not suitable for the road conditions of the country will create a security weakness in the first place and therefore it is not possible to accept it as a hardware difference, there is no need to investigate whether there is a part to protect the radiator mentioned in the same model vehicles.

27. During the discussions at the General Assembly of Civil Chambers; in view of the fact that there are different equipment options in vehicle sales in the market and vehicle prices differ according to the equipment, the court should evaluate how many different equipment options G. model vehicles are produced in how many types of equipment options, what are the differences between them in terms of the subject of the lawsuit, whether the radiator protection, which is claimed to be absent in the vehicle subject to the lawsuit, is related to the price difference should be evaluated, and if the absence of this protection is specific to the vehicle subject to the lawsuit and is present in other equipped vehicles, Although it was argued that it was not correct to make a decision with the idea that there should be protection without evaluating that the plaintiff would have to be accepted that he preferred the vehicle sold at a lower price knowing this issue and that no fault would be attributed to the defendant in this case, and that the reasoning that the radiator, which should be made of soft material, should be resistant to stone impacts was not appropriate, this opinion was not adopted by the majority of the Board.

28. As such, it is understood that the judgment of the local court dated 27.12.2012 and numbered 2011/364 E., 2012/1030 K. on the defendant Ç. Motorlu Araçlar San. ve Ltd. Şti. has become final by not being appealed, thus Ç. Motorlu Araçlar San. Ltd. Şti. is out of dispute, however, the defendant ... Otomotiv San. ve Tic. A.Ş. on the grounds that the deficiency in the vehicle is a hidden defect, the decision of resistance regarding the acceptance of the request for replacement of the vehicle with a duplicate is appropriate.

29. However, according to the reasons for reversal, since the other objections of the defendant ... Otomotiv Sanayi ve Ticaret A.Ş. attorney regarding the merits of the matter have not been examined, the file should be sent to the Special Chamber for further examination.

IV. CONCLUSION:

For the reasons explained;

Direnme is appropriate and the file should be sent to the 13th Civil Chamber of the Court of Cassation for the examination of the other appellate objections of the defendant ... Otomotiv Sanayi ve Ticaret A.Ş. attorney regarding the merits of the case, However, since the decision correction path is open, the court should first fulfill the notification of the decision of the General Assembly of Civil Law to the parties, and if the decision correction path is applied, the file should be sent to the General Assembly of Civil Law, and if not, the court should be sent directly to the 13th Civil Chamber of the Court of Cassation,

Pursuant to Article 440 of the Code of Civil Procedure No. 1086, which is being applied according to the provisional article 3 of the Code of Civil Procedure No. 6100, it was decided by majority vote on 04.02.2020, with the way of correction of the decision being open within fifteen days from the notification of the decision.

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