Consumer’s Right of Withdrawal in E-Commerce

Provision are set out under the Law on the Protection of Consumers (“LPOC”) numbered 6502 regarding distance contracts. LPOC shall be applied where one of the parties is a consumer as defined by the law.

There are detailed regulations within the scope of the LPOC in relation to the consumer’s right of withdrawal and the terms and the period for using the right is clearly set out. Understanding these regulations is essential for both consumers that use e-commerce websites for online shopping and sellers and providers which are defined as real and legal persons providing goods or services to consumers for trading purposes under the LPOC.

The Scope of the Right of Withdrawal under the Distance Contracts

The distance contracts are regulated under Article 48 of the LPOC. As per the provision, the consumer has a right of withdrawal without indicating any ground and paying a penalty within fourteen days. The sole condition for using this right under the LPOC is the fourteen-day time limit.

The details of the right are determined by the Regulation on the Distance Contracts (“Regulation”). Accordingly, the duration of the right of withdrawal shall commence on the day of the conclusion of the contract for contracts in relation to provision of services and on the day of the delivery of the goods to the consumer or a third party designated by the consumer for the contracts on the delivery of goods. However, the consumer the consumer may use the right of withdrawal from the conclusion of the contract until the goods are delivered.

The Regulation states that directing the notification regarding the using the right of withdrawal to the seller or provider in writing or via durable media[1] storer shall be sufficient if the time limit is not extended.

The obligations of the seller or the provider in the event of using the right of withdrawal are defined under the Article 12 of the Regulation. As per the said article, the seller or the provider shall return any payment that has been made including the costs of delivery within fourteen days from the submission of the notification on the right of withdrawal. This repayment is required to be a lump sum payment in accordance with the payment tool that was used by the consumer for purchase and without requiring any costs or obligation.

The Duty of Notification of the Seller or the Provider

Obligations are imposed for sellers and providers regarding the notification of the right of withdrawal due to the importance of it by considering that the right can be exercised within fourteen days without indicating any ground.

According to Article 49 of the LPOC, the seller or the provider is obliged to prove that the consumer was informed about the right of withdrawal. Within the scope of the preliminary notification obligation defined by the Regulation, the consumer is required to be notified fully about the matters set out under the relevant provision prior to the conclusion of the distance contract or accepting any offer corresponding to this. The right of withdrawal is also within the scope of this obligation. Therefore, the consumer should be informed about the following by the seller or the provider:

1. The conditions for using, the period, the procedure and the designated transporter for returning the goods in cases where the right of withdrawal may be exercised,
2. The address, fax number or e-mail where the right of withdrawal shall be notified to,
3. Notification of the right of withdrawal’s disuse or the conditions that the right shall be forfeited for circumstances that the right of withdrawal shall be disused.

Also, as per the Regulation the seller and the provider shall ensure the consumer to confirm obtaining the preliminary information in accordance with the distant communication tool that have been used. Otherwise it will be deemed that the contract has not been concluded.

The seller and the provider is required to prove that the consumer was informed about the right of withdrawal. If the consumer is not duly informed about the right of withdrawal, he or she shall not be bound to the fourteen days’ period. In any case this period shall be expired within one year starting from the end of the term of the right of withdrawal.

The Contracts That the Right of Withdrawal Cannot Be Exercised

The Regulation defines the contracts that the right of withdrawal cannot be exercised under the Article 15. Accordingly, the right of withdrawal shall not be applied to the following contracts unless the parties agrees otherwise:

1. Contracts in relation to goods or services that the price may change depending upon the market fluctuations and which are not controlled by the seller or the provider.
2. Contracts in relation to goods that are prepared as per the requests or the personal needs of the consumer.
3. Contracts in relation to the delivery of the goods that are perishable or expirable,
4. Contracts in relation to the delivery of the goods which are not suitable for returning due to health and hygiene and whose protective components are opened such as packaging, tape, seal.
5. Contracts in relation to goods which are mixed with other goods after their delivery and cannot be separated due to their nature,
6. Contracts in relation to books, digital contents and computer consumables which are materially provided in case their protective components such as packaging, tape, seal are opened.
7. Contracts for delivery of periodicals such as newspaper and magazines except the ones provided within the scope of subscription contracts,
8. Contracts related to treating free-time and which are made for the purposes of accommodation, car rental, supply of foods-beverages, moving goods, leisure or recreation which should be performed on or within a certain time.
9. Contracts in relation to services which are performed immediately within electronic environment or intangible goods which are delivered immediately to the consumer.
10. Contracts in relation to services which have been started to be performed before the expiry of the period of right of withdrawal upon the confirmation of the consumer.

Checking the level of compliance to these legislations during pre-investment and post-investment periods together with the review of the e-contracts and the website are essential for e-commerce activities. Bağ&Günen Law Firm provides consultancy services to its clients in terms of compliance to the e-commerce legislation and related areas.

[1] Means all kinds of tools or media such as texting, e-mail, internet, discs, CD, DVD, memory card and alike, enabling the information sent by or to the consumer, to be recorded and to be reproduced without alteration, and to reach invariably the recorded information that will enable them to examine such information in a reasonable time, in accordance with the purpose of that information