Defective performance (ayıplı ifa)

Legal meaning

A defect may be material, legal or economic in nature; it may appear openly or in a latent form. Different provisions apply to sales, contracts for work, leases and consumer transactions. In consumer law, the criteria of conformity with the contract and evidentiary facilitations are specifically regulated.

The rights of the buyer or project owner to rescind the contract, reduce the price, have free repair, have replacement with a defect-free equivalent, or claim damages may arise depending on the type of contract and the conditions. The distinction between commercial sale, ordinary sale and consumer transaction is important for inspection, notification and the statute of limitations.

Articles 219-231 of the Turkish Code of Obligations (TBK) apply to sales; Articles 474-478 to contracts for work; and Articles 8-16 of Law No. 6502 to consumer goods and services. The same elective remedies do not arise under the same conditions in every regime. For example, the remedies for rectification under a contract for work and the four elective remedies of the consumer for defective goods cannot be regarded as identical.

A defect that appears within six months of delivery to the consumer is presumed to have existed at delivery; this presumption does not apply if it is incompatible with the nature of the goods or the defect (Law No. 6502, Article 10). The rules of inspection and notification for commercial sales are addressed separately under Article 23/1-c of the Turkish Commercial Code (TTK). These time limits and obligations cannot automatically be applied to the consumer.

Core elements and practical criteria

• Conformity with the contract is the basis.
• A distinction is made between obvious and latent defects.
• Elective remedies vary according to the type of contract.
• The rules on inspection, notification and time limits are checked separately.

Practical importance

When a defect is noticed, the current state of the product or work should be preserved; photographs, videos, service records, delivery documents, invoices and correspondence should be collected. Preservation of evidence may be necessary before any repair or intervention.

Commonly confused concepts

• In defective performance, the obligation has been performed but not properly; non-performance and default have different consequences.
• The defect provisions for consumer transactions and the commercial sale provisions between merchants are not the same.

Application example

If a newly delivered independent unit has construction work that deviates from the project and a lack of waterproofing, this may be assessed as defective performance on the basis of the contract, the technical project, the delivery record and an expert examination.

Frequently asked questions

What should be done first when a defect appears?

The current condition should be documented without being altered, appropriate notice should be given to the seller or contractor, and the applicable time limits should be checked without delay.

Can the contract be rescinded for every defect?

No. The significance of the defect, whether it can be remedied, the chosen right and proportionality are assessed together with the provisions of the law and the contract.