TR 
EN 
Today, the Covid-19 outbreak has required large volume of process in a short period of time for both companies and individuals. Unfortunately, not by choice, some of the legacies are left behind. As a result of the overall embraced isolation approach, individuals are avoiding the public places, and most of the stores are shut down except the ones required for essential needs. This rapid lock down has put immense pressure on companies to survive the struggle and keep the business on going. Many companies have seen distance contract as the recipe to this outbreak since it has become the safest and, in most cases, the only way to connect with customers and to provide goods or services. In other words, to adapt the new normal, companies are pushed to take immediate measures that distance contract has taken the first place.
With this understanding, worldwide e-commerce and online sales platforms have surged as per the statistics in the U.S. and Canada were up 56% year over year for the 2 weeks of March 22 through April 4. For instance, in the e-commerce-oriented companies where the call is already heard, even the number of employees cannot satisfy the demand due to amid a surge in online shopping during the Covid-19 outbreak such as Amazon which announced recently to hire extra 75.000 employees. Similarly, in Turkey, the companies willing to at least maintain their businesses have begun to adjust their business by gravitating towards distance contract methods. To do so, indeed as in many jurisdictions, Turkish Laws also require companies to comply with certain standards and legal requirements for distanced sales transactions which may be built by all sorts of means including fax, phones, radio, e-mail, internet that allow the establishment of a contract without physically confronting by the parties.
In this respect, “Regulations on Distance Sales Contract” dated November 27, 2014 numbered 29188 (“Regulation”) sets forth the rules and procedures regarding the distance contracts which are concluded between the parties, the seller (provider) and the consumer, without the physical presence of the other under a distance sale or service provision scheme. This Regulation draws strict lines for the companies in parallel to the Consumer Protection Law numbered 6502 so as to protect the customers in a transaction.
Even though, shaping the business as rapid as possible in this environment is of essence for companies due to Covid-19, it is highly crucial to understand and analyze the compatibility with the rules required by Regulation in order to avoid any administrative fines against. Therefore, it is provided a brief checklist below for the companies conducting such transactions. Initially, it is significant to determine which companies are subject to the checklist to be presented so that the first criterion is the “scope”. It is sufficient for a contract to be subject to the Regulation in case established by any means or environment that allows for a contract without physically confronting. Therefore, the means determined hereof are not restricted rather the definition has kept inclusive.
In this context, after determining whether or not the transactions fall into the scope of distance contracts, the second highly critical criterion is “preliminary information”. The companies are obligated to provide preliminary information to the customers prior to the establishment of the contract. As per the requirements couple of elements regarding the transaction are required to be represented to the customers as follows:
- the basic characteristics of the goods/services;
- the complete title of the seller/provider, address, contact details;
- the tax included price of the good/service;
- delivery and any additional expenses to be borne by the customers;
- in case the right of withdrawal is eligible to the customers, the conditions and procedures to use such right and related information that may be needed in this respect;
- in case the right of withdrawal is not eligible to the customers, the reason why or under which circumstances it cannot be used;
- in case the seller requires the customer to pay any deposit, the amount of such fee;
- any digital security precautions in case applicable;
- the information on how consumers can lodge their dispute to the Consumer Court or the Consumer Arbitration Committee.
The key point is that none of the above-stated elements could be altered without the mutual consent of the parties. Any seller/provider wishes to enter into the distance contract need to be aware of each of those fact. Otherwise, any additional fees not mentioned in the preliminary information shall be borne by the seller/provider. In further, the seller/provider has to prove that the consumers are informed duly.
Additionally, preliminary information must be 12 font sized, in writing, clear, simple and comprehensible. In addition to all, it should be introduced through fixed data storage devices such as text message, internet, e-mail, memory card. For instance, a company which desire to provide goods/services through the contracts to be established through phones calls. In such cases, it is recommended to the company to obtain the required contact details of the customers, without prejudice to the data protection requirements, and to ask for the approval of the contract in written form as may be through SMS or e-mail. To do so, the consent of the customer could be provided in a more convenient and lawful way, and in case any dispute, the seller/provider may attribute to its written evidences more easily.
The third and most debated criterion is the “right of withdrawal” of the consumers. The right to withdrawal undeniably concerns the companies about the risks of the distance contract. Companies, by and large, desire to limit the right to withdrawal to mitigate the risks that likely to be faced after the sales, ideally no return of goods/services is desirable by any seller or provider. Nonetheless, although the clear-cut wish of the sellers/providers, the Regulation has extended the period for the consumers to use their right of withdrawal to fourteen days. In service agreements this period starts as of the date of establishment of the contract whereas in agreements related to purchase of certain goods as of the delivery of the goods. However, there are exemptions to the right of withdrawal under the Regulation. As per the article 15 of the Regulation, under some circumstances the customers are not entitled to use the right of withdrawal unless consented otherwise by the parties. “The service contracts executed electronically” or “the contracts on the delivery of intangible goods” or “the service contracts executed with the consent of the customers prior to the end of withdrawal period” are the most common samples of the exemptions. The Court of Cassation held in a recent dispute that a consumer cannot excuse that the services have not executed yet by the seller; since the consumer should have claimed the right of withdrawal within the fourteen days period as of the establishment of the contract. Therefore, the execution or non-execution of the services is not regarded in the disputed distance contract (13th Court of Cassation E. 2015/25017 K. 2018/556, dated January 25, 2018). In light of this, it is significant to comply with the withdrawal period, if not, the related courts do not examine whether the contract is executed or not.
In consideration of the brief check-list, the building stones of distance contracts should be examined in depth by the companies in order to create a healthy working system for the business in this era driven by the Covid-19 and to hamper the possible counter arguments as may be faced in case any absence.
Author: Ezgi Aysima Kır
