To what extent can liability be excluded (if at all)?
Manufacturers of consumer products usually limit their liability for damages (in quantum) and exclude liability for indirect losses in their warranty documents. However, in cases under the CPA, the consumer forum usually awards compensation for loss suffered and in appropriate instances also exercises its powers to award punitive damages, irrespective of the warranty terms. There are however general defences available in strict liability claims under tort law, as detailed above.
Further, as discussed earlier, the CPA permits only consumers to institute claims and therefore, the liability of manufacturers and sellers to persons who do not fall within the statutory definition of 'consumer', such as persons who obtain goods for resale or for commercial purposes, are excluded from the purview of the CPA.
If the limitation period has elapsed, the right to seek damages is extinguished.
Also, reduction of damages due to comparative negligence might be available (See Article 722 (2) of the Civil Code).
Turkish law does not provide for the possibility to disclaim liability in advance. However, under the Regulation on Liability for Damages Caused by Defective Products, the producer, manufacturer or importer may not be found liable in the following circumstances:
- The product has not been launched.
- The product has not been produced for sale or in the course of commercial activities.
- Having considered all facts and circumstances, at the time of launch, the product did not present the defect that caused the damage.
- The technical specification of the product caused the damage.
- The state of the scientific and technological knowledge at the time of the product launch meant that the existence of the defect could not be perceived.
In addition, the producer or manufacturer of a part, forming the whole, is not responsible for the design of the final product or the instructions of use of such product.
In principle, any exclusion or limitation of liability under the Product Liability Act is null and void. However, in the event that a person who receives a product for use in his or her business has agreed to a special provision to exclude or limit liability for damages under the Product Liability Act with respect to damages incurred to his or her business property, the supplier who provided the subject product to the person may be excluded or limited from liability by contract under the Product Liability Act.
In addition, if there is an increase in damages due to the claimant's negligence, the defendant can claim contributory negligence.
Neither the consumer guarantees, nor the provisions of the ACL relating to liability of manufacturers for goods with safety defects, can be excluded or modified.
Liability, towards the claimant, can be excluded if:
- The claimant fails to prove the elements necessary to the success of a strict liability type claim (see question 2);
- The defendant successfully raises one of the aforementioned defences (see question 4);
- The limitation period of three years from the date on which the claimant became aware, or reasonably ought to become aware, of the defect, the identity of the producer and the existence of the damage(s), has expired;
- The product was put on the market more than ten years prior to the claim being filed.
In principle, liability can however not be excluded by a clause intended to exclude or limit liability for defective products. Such clauses are prohibited and considered void.
First of all, it should be stressed that the supplier has strict liability, which means that the element “guilt” is not relevant during the analysis of the existence of liability.
According to the Consumer Protection Code, the supplier will not be held liable if it is able to prove that:
(i) the product was not put into the market;
(ii) although the product was put into the market, the product does not present any flaws;
(iii) exclusive fault of the consumer or a third party.
Other than the defenses set out under Question 5, producers and sellers of products cannot exclude their product liability. As long as the elements under Question 2 are present, they will be held liable for compensation.
Liability under the CPA cannot be excluded (or limited) by contract.
Not possible by any kind of agreement or T&Cs.
The Products Liability Act is mandatory. The Act cannot be derogated from to the detriment of the claimant or any entity subrogated to the claimant's rights.
Manufacturers and intermediaries may to a certain extent enter into contractual agreements on exclusion of liability vis-à-vis each other.
We see that there are no effective means of limiting product liability. Thus, such liability cannot be excluded neither contractually, nor by any other legal means.
Liability for damages under the Product Liability Act can neither be excluded nor limited beforehand. Liability can also not be excluded due to a lack of guilt (culpability). Under the General Civil Code liability for damages can be limited in regard to contractual liability but not for claims under tort law. There are limits to that exclusion (the limits are stricter in B2C situations than they are in B2B situations).