Article 26 MÖHUK – Consumer contracts

Article 26 of Turkish Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK) determines the law applicable to consumer contracts (tüketici sözleşmeleri). The parties may choose a law, but that choice cannot take away the minimum protection given by the law of the country where the consumer lives; without a choice, the law of the consumer’s habitual residence (mutad mesken) applies under certain conditions. The article can apply to you if you live in Germany or the Netherlands and buy goods or services from a seller in Turkey, or if you live in Turkey and buy from abroad.

Article 26 MÖHUK – text

Unofficial translation:

Consumer contracts
Article 26 – (1) Consumer contracts for the supply of goods or services or the provision of credit for a purpose outside any professional or commercial activity are governed by the law chosen by the parties, without prejudice to the minimum protection the consumer would enjoy under the mandatory provisions of the law of the consumer’s habitual residence.
(2) Where the parties have made no choice of law, the law of the consumer’s habitual residence applies. For the law of the consumer’s habitual residence to apply,
a) the contract must have been concluded in the country of the consumer’s habitual residence following a specific invitation addressed to the consumer or as a result of an advertisement, and the legal acts required of the consumer to conclude the contract must have been performed in that country, or
b) the other party or its representative must have received the consumer’s order in that country, or
c) where the relationship is a contract of sale, the seller must have organised a trip for the purpose of inducing the consumer to buy, and the consumer, on that trip, must have travelled from the country where he or she was to another country and placed the order there.
(3) The form of consumer contracts concluded under the conditions in paragraph two is governed by the law of the consumer’s habitual residence.
(4) This article does not apply to contracts of carriage, except package tours, or to contracts under which the services must be supplied to the consumer in a country other than the country of the consumer’s habitual residence.

Turkish original:

Tüketici sözleşmeleri
MADDE 26 – (1) Meslekî veya ticarî olmayan amaçla mal veya hizmet ya da kredi sağlanmasına yönelik tüketici sözleşmeleri, tüketicinin mutad meskeni hukukunun emredici hükümleri uyarınca sahip olacağı asgarî koruma saklı kalmak kaydıyla, tarafların seçtikleri hukuka tâbidir.
(2) Tarafların hukuk seçimi yapmamış olması hâlinde, tüketicinin mutad meskeni hukuku uygulanır. Tüketicinin mutad meskeni hukukunun uygulanabilmesi için;
a) Sözleşme, tüketicinin mutad meskeninin bulunduğu ülkede, ona gönderilen özel bir davet üzerine veya ilân sonucunda kurulmuş ve sözleşmenin kurulması için tüketici tarafından yapılması gerekli hukukî fiiller bu ülkede yapılmış veya
b) Diğer taraf veya onun temsilcisi, tüketicinin siparişini bu ülkede almış veya
c) İlişkinin bir satım sözleşmesi olması hâlinde, satıcı tüketiciyi satın almaya ikna etmek amacıyla bir gezi düzenlemiş ve tüketici de bu gezi ile bulunduğu ülkeden başka ülkeye gidip siparişini orada vermiş,
olmalıdır.
(3) İkinci fıkradaki şartlar altında yapılan tüketici sözleşmelerinin şekline, tüketicinin mutad meskeni hukuku uygulanır.
(4) Bu madde, paket turlar hariç, taşıma sözleşmeleri ve tüketiciye hizmetin onun mutad meskeninin bulunduğu ülkeden başka bir ülkede sağlanması zorunlu olan sözleşmelere uygulanmaz.

Legislative reasoning

According to the reasoning of the government bill, the article is a new provision with no counterpart in the old law. The reasoning names the protection of the consumer, as the weaker and less experienced party, as its purpose and states that the 1980 Rome Convention served as a model. It explains the choice of the law of the consumer’s habitual residence by saying that this is the law the consumer knows best and that therefore protects the consumer best. A choice of law is allowed, but if the chosen law protects the consumer less than the law of the habitual residence, the choice is disregarded to that extent. Contracts of carriage were left out because there are many international conventions in this field; package tours were kept within the scope.

Explanation

To apply the article, ask three questions in turn.

Is it a consumer contract? The goods, services or credit must have been obtained for a purpose that is neither professional nor commercial. If you buy the same vehicle for your business, the article does not apply and the contract falls under the general rule (Article 24 MÖHUK).

Did the parties choose a law? The choice is valid but limited. If the mandatory rules of the law of the consumer’s habitual residence, for example the right of withdrawal (cayma hakkı) or the rights for defective goods, give more protection than the chosen law, the consumer keeps that protection. For this minimum protection under paragraph 1, the connecting conditions of paragraph 2 do not also have to be met. This is a reading drawn from the wording of the article and is the author’s own; the law has no provision that spells this out, and I have not been able to find a binding court decision on the point.

No choice: which law? The law of the consumer’s habitual residence applies, but only if the contract has one of the links to that country listed in paragraph 2: the seller reached the consumer there through a specific invitation or an advertisement and the consumer took the necessary steps there; the seller received the order in that country; or the seller took the consumer on a trip to another country and had the order placed there. If none of these links exists, the general rule (Article 24 MÖHUK) applies again.

The law does not mention online sales separately. Whether a website aimed at the consumer’s country counts as an “advertisement” is debated. There is no express statutory rule on it and no binding court decision. In the author’s assessment, point (a) may be regarded as met where features such as the site’s language, currency and delivery countries show that it is aimed at consumers in that country; how a court will assess this is uncertain.

What this means if you live abroad

If the service must be provided in Turkey, the article does not apply. Under paragraph 4, contracts under which the service has to be provided outside the country where the consumer lives are excluded. A contract that someone living in Germany makes directly with a hotel, a dental clinic or a driving school in Turkey is therefore governed not by Article 26 but by the general rule (Article 24). Package tours, on the other hand, are covered.

Contracts of carriage. Contracts of carriage, such as a plane ticket or the removal of household goods, fall outside this article unless they are a package tour. For the carriage of goods, see Article 29 MÖHUK.

A seller in Turkey selling to Germany. If a seller in Turkey reached a consumer living in Germany through an advertisement there and the consumer placed the order from Germany, a Turkish court will apply German law where no law was chosen. For the content of German consumer law, you need to consult a lawyer admitted in Germany.

Which court? In the Turkish courts, the consumer can sue at his or her own domicile or habitual residence, or at the other party’s place of business, domicile or habitual residence (Article 45 MÖHUK). This jurisdiction cannot be excluded by agreement (Article 47(2) MÖHUK).

For consumer rights in Turkey, see the consumer law page.

Frequently asked questions

If the contract chose Turkish law, do I lose my consumer rights in Germany?

No. The choice cannot take away the minimum protection given by the mandatory provisions of the law of the consumer’s habitual residence (Article 26(1) MÖHUK).

Which law applies to a hotel booking in Turkey?

Because the service has to be provided in Turkey, Article 26 does not apply (Article 26(4)); the contract is governed by the general rule (Article 24). A package tour, however, is covered by Article 26.

Where can I sue under a consumer contract?

For the jurisdiction of the Turkish courts, the consumer can choose between his or her own domicile or habitual residence and the other party’s place of business, domicile or habitual residence (Article 45(1) MÖHUK).

Sources

Questions about your case

If you bought something from a seller in Turkey, or from Turkey from a seller abroad, and would like to know which country’s consumer law applies and where you can bring a claim, you can book a video call, a phone call or a meeting in Düsseldorf on the appointment page, or send a written question through the contact form. Consultations are held in Turkish and cover Turkish law only (§ 206 BRAO); for German or Dutch consumer law, please consult a lawyer admitted there. Useful to have ready:

the order confirmation, the invoice and your correspondence with the seller,
how the seller reached you (advertisement, website, phone),
any clause in the contract on the applicable law or the competent court.