The Court of Cassation General Assembly reviewed a case where a consumer had requested reimbursement for his television that turned out to have a defective motherboard due to a manufacturing defect. The seller basically relied on Article 13 of the Law on Protection of Consumer No. 4077 and pleaded that no such claim can be brought in cases where the warranty period (which is two years as of purchase) has passed and argued that the claim is time-barred.

The first instance court decided that there is a hidden defect in this case, and thus no time-bar is applicable. Accordingly, the court ruled for the refund of the purchase price to the consumer. The relevant chamber of the Court of Cassation however reversed this decision on the grounds that it is not proven by the consumer that the defect in question is concealed from the consumer with gross fault or deceit (the law dictates that the burden of proof in that regard rests on consumer). However, the first instance court insisted on its initial decision and therefore the case was brought before the Court of Cassation Assembly.

The Court of Cassation Assembly, in its decision about the dispute, acknowledged that every product has a lifetime but also highlights that, in today's technology the manufacturers are expected to provide the kind of hardware that endure during the customary lifetime when manufacturing the essential parts of a durable consumer product. The Court of Cassation Assembly added that consumers act in reliance with such reasonable expectation and trust; otherwise, the consumers would not buy a product if they were aware that no liability can be attributed to the manufacturer of that product if it becomes non-functional due to a defect after the warranty expired.

After noting the above, the Court of Cassation Assembly reiterated the determination made in the proceedings about the defect in the television being a "hidden defect" that manifested itself with time, without any cause related to the consumer`s use. Based on this, the Court of Cassation Assembly concluded that under such circumstances it must be accepted that the manufacturing defect is hidden from the consumer with "gross fault."

Such conclusion of the Court of Cassation Assembly is quite significant because the relevant Chamber of the Court of Cassation had concluded that there is no evidence attesting that the defect in question was concealed from the consumer with gross fault or deceit. We see that the Court of Cassation Assembly might have considered the challenge in proving such gross fault or deceit of the manufacturer and accordingly adopted a pro-consumer approach in a case where at least it is proven that there is a hidden manufacturing defect and there is no consumer error that contributed to the malfunction. The fact that the product in question had become completely non-functional might have also steered the Court of Cassation Assembly into protecting the consumer in such a case.

All in all, what can be derived from this decision of the Court of Cassation Assembly is that in cases where there is a high-end technological product that no longer functions, solely because of a manufacturing defect that the consumer cannot possibly detect (i.e., the defect is hidden) and no fault can be attributed to the consumer in occurrence of the malfunction, it can be "presumed" that the manufacturing defect is concealed from the consumer with "gross fault." This decision, in a way, shifts the burden to the manufacturer side in such circumstances, to rebut the presumption.

* Court of Cassation Assembly of Civil Chambers, 2017/650 E., 2020/301 K. 12.03.2020

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2021. A link to the full Legal Insight Quarterly may be found here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.