There will certainly be a difference between a vehicle being second-hand and brand new in terms of the seller's liability. However, in both cases, if a situation arises other than what the seller promised regarding the vehicle, the seller shall be held liable for it.
The liability of a second-hand vehicle seller is merely somewhat more limited. We refer to this situation as the liability of the seller in second-hand vehicle sales. Although we stated that the liability of the seller in second-hand vehicle sales is somewhat more limited, the Turkish Code of Obligations numbered 6098 nevertheless grants the buyer extensive rights.
We will discuss the buyer's rights in second-hand vehicle sales below. However, before that, we will discuss what a defect and a hidden defect are in second-hand vehicle sales. Because the seller's liability in second-hand vehicle sales is determined according to the provisions on defects.
What are Defects and Hidden Defects in Second-Hand Vehicles?
A defect is defined as a sold item failing to possess the qualities stated by the seller, or having deficiencies that reduce or eliminate its value or the benefits expected under the contract. The seller is not liable for defects that the buyer knew about at the time of sale, nor are they liable for defects that the buyer could have noticed with ordinary attention during the sale, unless they have guaranteed that such defects do not exist.
Therefore, in the sale of a second-hand vehicle, in order for the seller to be held liable for a defect:
- The defect in the vehicle must be latent. That is to say, it must not be possible to detect it through a normal – routine inspection.
- However, the seller shall be liable for defects that would be noticeable upon ordinary inspection if the seller has guaranteed that no such defect exists.
Before moving on to the rights of a person who has purchased a defective vehicle and various eventualities, we would like to summarise the subject for you with a table.
Seller's Liability in Second-Hand Vehicle Sales
What are the buyer's rights?
- Rescission of the contract by returning the vehicle,
- Do not ask for a discount on the price,
- Replace with repair or similar.
What happens when a contract is rescinded?
- The vehicle is returned as seen.,
- The amount paid will be recovered with interest,
- Litigation costs and expenses incurred for the vehicle are recovered,
- Compensation is received for the damages.
What is the effect of a notary contract?
General clauses do not exempt the seller from liability. Liability is excluded in respect of defects specifically mentioned.
What is the effect of the appraisal report?
Liability for the defects specified in the report is discharged. However, the fact that a defect is not included in the report does not remove the seller's liability.
What is the effect of the insurance damage record?
Liability for the defects included in the record is lifted. However, since these records do not contain much information regarding the defect of the vehicle, it does not have much of an effect.
What is the effect of defects known to the buyer?
Liability is waived for defects known to the buyer. However, the burden of proof that the buyer knew of the defects lies with the seller. If they cannot prove it, the buyer is presumed not to have known.
What is the buyer’s duty to inspect?
The buyer must inspect the vehicle and notify the seller of any defects as soon as they have the opportunity. However, this does not apply to latent defects. These must be reported whenever they are discovered.
What if the seller is unaware of the defect?
It does not matter whether the seller was aware of the defect or not. Their liability remains.
The seller’s deliberate concealment of a defect
In this case, bad faith and gross negligence on the part of the seller are at issue. The seller cannot rely on the defence that the buyer failed to fulfil their notification obligation.
Selling the vehicle below market value
The fact that a vehicle is sold below its market value does not mean that the buyer was aware of the defect.
Collection of the vehicle from the dealership
When purchased from a dealership, the buyer's rights are not prejudiced, and in some cases, broader rights apply.
Discovery of the defect in the vehicle much later
It must be reported within 2 years from the date of purchase. If there is gross negligence on the part of the seller, the 2-year period does not apply.
Which court has jurisdiction and authority?
Court of First Instance located in the defendant's place of residence.
Can a vehicle be sold whilst legal proceedings are ongoing?
It may be sold or transferred. In such a case, the discretionary right that corresponds to the nature of the specific circumstances shall be exercised.
The vehicle being involved in an accident whilst the case was ongoing
If the vehicle is damaged due to negligence, an unforeseen circumstance or force majeure, the options are still available. The remaining part of the vehicle is handed over.
What are the rights of a person who buys a second-hand car with defects?
What rights does the buyer have under the seller’s liability in the sale of second-hand vehicles? These are set out, in essence, in Article 227 of the Turkish Civil Code.
If the conditions we examined in detail below are met and the vehicle is defective, the buyer may claim the following rights from the seller:
- The buyer may withdraw from the contract by stating that they are prepared to return the second-hand vehicle.
- He can demand a price reduction in proportion to the defect by withholding the vehicle.
- If it does not require an excessive expense, they can request the vehicle to be repaired free of charge by the seller.
- If possible (which is generally not possible), they may request the replacement of the vehicle with a fault-free equivalent.
If the buyer has suffered any loss, they may claim compensation under general provisions.
If the defect is very significant, meaning it is almost close to the sale price, then the buyer can only exercise one of the options: rescinding the contract or replacing the goods with a defect-free equivalent.
What is the limitation period?
In the sale of second-hand vehicles, there is a 2-year limitation period, valid from the date of sale, in order to assert rights regarding defects. However, if the seller is grossly at fault for transferring the second-hand vehicle with defects, the 2-year limitation period does not apply.
Can a vehicle be sold to someone else while a lawsuit is ongoing?
When legal remedies regarding the seller's liability in the sale of a second-hand vehicle are utilised, the vehicle can be sold to another person while the legal proceedings are ongoing.
Claiming Compensation Against a Second-Hand Car Dealer
Legal proceedings can be initiated for the compensation of damages suffered by the buyer.
2. What should second-hand car buyers look out for during this process?
Although the process generally follows this pattern, every concrete case also contains different legal problems within itself. For this reason, possibilities must be anticipated in advance to chart a legal plan, and only then should the legal process be initiated. At this point, the most sound approach is to work with experienced lawyers.