ABSTRACT
Among the contracts established with electronic communication tools, contracts which
are established in the internet environment are
the most applied. With the increasing use and
the development of the Internet, most of the
electronic contracts are established on the
Internet today. The vast majority of these contracts are distance contracts. Distance contracts have been regulated in the Law on the
Protection of Consumer No.6502 and detailed
regulations on distance contracts have been
introduced in the related Regulations. This
article aims to deal with the topic of distance
contracts in e-commerce in detail.
I. INTRODUCTION
Electronic contracts made on the Internet
are closely related with the consumer legislation as well as entering into the field of ecommerce law. Electronic contracts made on
the Internet are often considered as a type of
distance contracts that take place in consumer legislation or both contracts are used as synonymes.
However, electronic contracts made on the Internet,
may not always be distance contracts. To be able to talk
about distance contracts, it is necessary that the person
in the position of the buyer is always a “consumer” and
other conditions regulated in the legislation need to be
fulfilled. In this content, contracts related to “businessto-consumer e-commerce (B2C)” of e-commerce types
can be given as an example of distance contracts. In this
article, firstly, the distance contracts will be discussed
in detail; then the relationship between electronic contracts established in the Internet environment and distance contracts, and the establishment and the entry
into force of distance contracts in the Internet environment will be mentioned.
II. DISTANCE CONTRACTS
A. Entry and Development of Distance Contracts to Turkish Law
With the development of consumer legislation in Turkey, codes and regulations on consumer law have also been gone through several changes. The concept of distance contract was firstly regulated with the amendment made in 2003, in the Article 9/A of the Law on the Protection of the Consumer No.4077 (Official Gazette dated 8 March 1995 and No.22221) (“Old LOPC”) which was the base code for Consumer Law. Later, the former LOPC was replaced with the Law on the Protection of Consumer No.6502 (Official Gazette dated 28 November 2013 and No.28835). There have been new requirements regarding the distance contracts which have gained and still been gaining importance due to the increase of the communication facilities and the usage and the proliferation of Internet, and the adoption of the marketing technics to these. The need of making detailed regulations related to distance contracts which have been mentioned by the general provisions of frame in the old LOPC, resulted in firstly the entry into force of the Regulation On the Procedures and Principles of the Application of Distance Contracts (Official Gazette dated 13 June 2003 and No.25137) and then the Regulation On the Distance Contracts (Official Gazette dated 6 March 2011 and No.27866). Then, with the entry into force of the LOPC No. 6502, distance contracts have been regulated in the article 48 of the code and the issue has been detailed by the Regulation of Distance Contracts (Official Gazette dated 27 November 2014 and No.29189) (“Regulation”) which is the most recent legal regulation according to the article 46/6 of the LOPC. The Regulation was prepared based on the European Parliament and Council Directive No. 2011/83 / EU (“EU Directive”) and has been published in the Official Gazette on 27 November 2014. In addition, distance contracts on financial services have been distinctively regulated in the article 49 of the LOPC; and the Regulation on Distance Contracts Related to Financial Services (Official Gazette dated 31.01.2015 and No.29253) has been issued on the basis of the aforementioned regulation.
B. Definition and Elements of the Distance Contract
Provisions regarding the distance contracts are regulated in the article 48 entitled “Distance Contracts” and the article 49 entitled “Distance Contracts Related to Financial Services” of the Law on the Protection of Consumer (“LOPC”). The distance contracts are defined in the article 48/1 as. “contracts established between the parties through the use of remote communication tools until the establishment of the contract, including the time when the contract has been established, within the frame of a system established for the remote marketing of goods or services, without the simultaneous physical presence of the seller or the provider and the consumer”. According to this definition, in order for a contract to be a distance contract; one of the parties shall be a consumer; the other one shall be a seller or a provider; the parties shall not physically face each other; the contract, including the negatiation phase, shall be established by using the remote communication tools and there shall be an existing system established for the remote marketing of goods or services.
“Remote communication tools” have been defined in the clause (h) of the article 4/1 of the Regulation of Distance Contracts dated 2014 (“Regulation”) as; “any tool or environment such as letter, catalogue, telephone, fax, radio, television, e-mail, sms, Internet which gives the opportunity to establish a contract without physically facing each other”. While “the system for remote marketing” has been mentioned in the article 48/1 of the LOPC as one of the elements of distance contracts; in the Regulation, however, there is not any explanation regarding the system related to remote marketing. However, according to one’s opinion, in case that the seller or the provider advertises its products or services by using tools such as catalogue, brochure and e-mail and accepts orders by remote communication tools; according to another opinion, if it is justified to get the impression by thinking as an average consumer that the seller or the provider owns a regular system for remote marketing from the advertisements he has done or the catalogues he has sent, it is admitted that this element has been realised. In order for a contract to be a distance contract, remote communication tools should be used not only in the time of the establishment of the contract, but also in the preparation phase until the moment of establishment. However, what should be understood from the term “stage until the moment of establishment” is controversial. It is an interpretation in favor of the consumer to limit this term in the code, based on the justification of the provision, to the stage of negotiation and barganing.
C. Exceptions
In the article 2 of the Regulation, a number of exceptions have been brought within the scope of distance contracts. According to this, the provisions of the Regulation shall not be applied to the contracts related to (i) financial services, (ii) sales made by automatic machines, (iii) use of telecommunication operators and public telephones, (iv) services related to gambling games such as bet, draw, lottery etc., (v) formation, transfer or acquisition of immovable properties and rights related to these properties, (vi) residence leasing, (vii) package tours, (viii) time share property, time share vacation, long term vacation service and resale/exchange of these, (ix) conduction of daily consumption products such as food and drinks to the residence or the office of the consumer, in the frame of the regular deliveries of the seller, (x) passenger transport services (some of the exceptional provisions are reserved), (xi) montage, maintenance and repair of the properties, (xii) dispensary services, social services regarding the support for families and individuals such as care for children, elderly and ill people.
These exceptions have been regulated in the Regulation because of the fact that similar exceptions have been regulated in general in the EU Directive. Another reason why these exceptions have been regulated is that consumer contracts subject to exceptions or distance contracts have been subjected to different regulations in the LOPC (For example: Distance contracts related to financial services in the article 49 of the LOPC, time share vacation and long term vacation service in the article 50, package tour contracts in the article 51 are all subject to different regulations apart from the article 48 of the LOPC.) or that the consumer contracts which are subject to exceptions have been regulated in various special laws (For instance; contracts related to gambling games such as bet, draw, lottery etc. are regulated in the Regulation Related to Distribution of License of Gambling Games, Regulation and Supervision of the Activities Subject to License.) Finally, according to the legislator, not having the need to apply the provisions which are subject to exceptions regarding the distance contracts, because of the subject and the quality of the goods and services provided (for example, immovable properties, daily consumption products, montage/maintenance/ repair, etc.).
In general, it is necessary to take into consideration the Regulations or the provisions regulated in the special legislation, in terms of distance contracts. Despite the fact that they are not included within the scope of the Regulation, provisions of the contracts related to passenger transportation services about additional payments, telephone usage fees and liability to inform are considered as valid according to the exception regulated in the second article of the Regulation.
III. PROVISIONS OF THE DISTANCE CONTRACTS
General provisions related to Distance Contracts have been regulated between the articles 48/2 and 48/5 of the LOPC. The article 48/2 of the LOPC is related to the liability of preliminary notification, article 48/3 is related to execution and delivery, article 48/4 is related to the right of withdrawal and the article 48/5 is related to the storage of information. These general provisions, together with the Regulation, have been detailed in terms of procedures, principles and application.
A. Liability of Preliminary Notification
Preliminary Notification has been regulated between the articles 5 and 8 of the Regulation. In these articles, the liability of preliminary notification has been regulat ed by categorizing with special provisions in terms of the content, method and confirmation of the notification.
1 - Content of preliminary notification
Regulation article 5/1 have brought legal obligations in order to fulfill the preliminary informing obligation; contents to be included in the preliminary information have been listed. As per the said article, the consumer must be informed of the complete content below, before establishing the distance contract or accepting a proposal for it.
a. The basic characteristics of the contractual goods or services,
b. The name or title of the seller or provider, and MERSIS number if any,
c. The full address, telephone number and contact information of the seller or provider which enable the consumer to contact with the seller or provider and the identity and the address of the person acting on behalf of the seller or provider, if any,
d. If there is any different communication information unlike specified in (c) to convey consumer’s complaints,
e. The total price of the goods or services, including all taxes; the method of calculating the price if it can not be calculated in advance; additional shipping, delivery and similar costs, if any, and information on which additional costs may be incurred if they cannot be calculated in advance,
f. In the event that the fee for use of the distance communication tool cannot be calculated on the ordinary fare basis in the course of the establishment of the contract, additional cost undertaken by consumers,
g. Information regarding payment, delivery, execution and commitments related to those and seller or provider’s complaint resolution methods, if any commitments, seller or provider’s complaint resolution methods,
h. In casethere is a right of withdrawal, the terms of use of this right, duration, procedure and the information regarding the carrier provided by the seller for return,
i. The full address, fax number or electronic mail information to which the withdrawal notification to be made,
j. In case where the right of withdrawal as per the Article 15 is not available, information regarding the consumer cannot use the right of withdrawal or underwhich conditions he will lose his right to withdraw,
k. Deposits or other financial collateral and any conditions related to those, if any, to be paid or provided by the consumer, on demand of the seller or the supplier,
l. Technical protection measures that may affect the functionality of digital content, if any,
m. Information on which the hardware or software that the digital content may be expected to work with, that the seller or provider know or expected to know it,
n. Information regarding the fact that consumers can make applications for the dispute to Consumer Court or Consumer Arbitration Board.
As per the article 5/2 of the Regulation, this content is expressed as an integral and unalterable part of the distance contract unless otherwise agreed upon. Pursuant to article 5/3 subparagraph (d) of the Regulation; should there is no information about the additional costs involved; an obligation for the consumer to cover these costs will no longer be the case. It is and another obligatory that the total price, regulated in the same subpara graph, should include the total cost in all billing period in indefinite-term contracts or in fixed term subscription agreements. Article 5/5 of the Regulation, which has made an exceptional arrangement, foreseen that in terms of the distance contracts drawn up with auction or dutch action, information related to the person making the auction/dutch action may be included in the information with regard to the subparagraphs (b), (c) and (ç).
2 - Procedure of Preliminary Notification
Within the scope of article 6 of the Regulation, there is a provision that explains how to make the preliminary information. Accoring to the article 6/1 of Regulation, the seller/provider is obliged to inform the consumer “with written or permanent data recorder by the seller or the provider in an understandable, clear, plain and readable format, at least twelve points in size, in accordance with the remote communication tools used. “Permanent data recorder” was defined in art. 4/1 (c) of the Regulation and refers to methods such as CD, DVD, memory card, e-mail, text message.
In the ongoing articles of the Regulation, a special set of regulations were formed. According to the article 6/2 on distance contracts established via the Internet, in addition to the content; information in subparagraphs (a), (d), (g) and (h) of the content, restrictions on transmission (e.g. geographical areas where goods or services are not provided) and accepted payment insturments (e.g. credit card, money order, etc.) must be clearly and separately displayed immediately before payment obligation is born. In other words, payment tools, shipping restrictions, and information on quality, price, withdrawal and disposition must be clearly included before clicking on the payment button on the internet page. The information in subparagraphs (a), (d), (g) and (h) of the content in distance agreements established through voice communication (e.g. telephone call) and in distance agreements established through an environment in which the order information is presented in a limited area or time, shall be provided in a clear and understandable manner; the all scope of the content must be sent in writing to the consumer until the delivery of goods or performance of the service at the latest. If immediate action is concerned (without any additional time for delivery or performance, performing during voice communication), it is sufficient that the information contained in subparagraph (a), (b), (d) and (h) of the Content is provided in a clear and understandable manner.
3 - Confirmation of Preliminary Information
As per the article 7 of the Regulation, the seller/provider is obliged to ensure that the consumer confirms the preliminary information in accordance with the content and method provisions. Otherwise, the distance agreement will be invalid. In this way, the preliminary informing process goes beyond the preparation of a printed text, and is also read by the consumer at the same time; in other words, the consumer must confirm that the preliminary information has been completed. Compared to the former Regulation, the confirmation arranged in a discrete article and the provision of the confirmation has changed.
4 – Other Provisions
Article 8 of the Regulation have brought obligation to disclose and inform the seller/provider. According to the article 8/1 of the Regulation, the seller/provider, prior to the confirmation of the order, should immediately and clearly warn the consumer that the order given means a payment obligation. Otherwise, the consumer will not obligate to the order. If the seller/provider contacts the consumer through the telephone, according to the article 8/2 of the Regulation, the seller/provider is obliged to disclose his identity, if it is calling for someone else’s name or on behalf of them; it is obliged to disclose the identity of that person and the commercial purpose of the interview.
B. Right of Withdrawal
1. Right of Withdrawal and Duration
In distance contracts, according to the Regulation Article 9/1, the consumer has the right of withdrawal in 14 (fourteen) days without showing any reason and paying penalty/penal clause. The provisions about the beginning of the 14-day period for the right to withdraw, are regulated in the Article 9/2. Thereunder the Article 9/2 of the Regulation, in service performance contracts the period starts on the day that the contract is signed; in good delivery contracts the duration starts on the day when the good has been delivered. In addition, consumer has the right of withdrawal even for the period between the establishment of the contract and the delivery of goods. In the Article 9/3 of the Regulation, there are some special regulations about the determination of the duration of the right to withdraw. In accordance with this, i) in goods subject to single order but separately delivered, the last goods’ delivery date, ii) in goods with multiple parts, he last part’s’ delivery date, iii) in regular delivery of goods over a period of time, the delivery date of the first good will be taken as a basis on 14 day of period. The Article 9/4 of the Regulation clearly explains that delivery to carrier (cargo, messenger ext.) does not mean delivery to consumer. In the Article 9/5 of the Regulation it is stated that, in contracts such as delivery of goods and performance services made together, right of cancellation about good delivery will be used.
The Regulation also includes some detailed provisions about the right of withdrawal. These issues will be mentioned here below.
2. Incomplete Information
If the seller/provider fulfills the obligation to inform about the right to withdraw deficiently, the Article 10 of the Regulation includes a different time regulation for consumers’ favor. In this case, consumer is no longer engaged to this 14 days and from the expiration of the 14 day of period of right of withdrawal, consumer will be able to use the right of withdrawal in 1 year. Consumer may use the right of withdrawal anytime during aforesaid time period until the the missing information has been completed. If the missing information has been completed in this subjected time-period, the 14 day of period will start again from completion date. It should be noted that, the burden of proof on incomplete information is undertaked by seller/provider.
3. Use of the Right
According to the Article 11 of the Regulation, the notification that the right of withdrawal has been used shall be directed to the seller or the provider in writing or via permanent data store. In the Annex of the Regulation, an example withdrawal form (“Form”) has been provided/given. The consumer can use this Form when using the right of withdrawal, also the consumer can make a clear statement which states the decision of withdraw. If the seller/provider provides an opportunity to use the right of withdrawal via website, as the Article 11/2 of the Regulation stated, the consumer must immediately convey the confirmation information that the request for withdrawal has reached them. In distance contracts established by voice communication, in accordance with the Article 11/3 of the Regulation, the form must be sent to consumer up to the latest delivery of goods or until the services has been performed. Also in such sales, consumer can use this Form when using the right to withdraw or the consumer can make a clear statement about withdrawal. In that case, the burden of proof about the use of the right of withdrawal is undertaken by consumer according to the Article 11/4 of the Regulation.
4. Consumer’s and Seller’s/Provider’s Obligations In Case Of Withdrawal
According to the Regulation, both the seller and the consumer have a number of obligations which are about the proper use of the right of withdrawal. While the obligations of the provider/seller have been regulated under the Article 12; consumers’ obligations have been regulated under the Article 13.
As to begin with the seller/providers’ obligations; according to the Article 12 of the Regulation, seller/provider is obliged to i) return all the payments obtained from the consumers within 14 days from the date on which the notice of withdrawal request, ii) make all refunds, at once and without charge or obligation, with the same payment tool that the consumer has used when purchasing the goods or service (If the payment is made by credit card, it must be returned by credit card, if the account transfer is made, it must be done in the same way etc.) , iii) return the good with the carrier specified in the preliminary information or no firm is specified as a carrier to assume the back charges and in such case that the carrier has no brunch where the consumer locates, to receive the good from the consumer.
According to the Article 13 of the Regulation, consumers’ obligation is to send the contract goods back to the seller/provider within 10 days from the withdrawal notification. The date as to be based in here, is not the date of manifest but the date of notification has been sent. The responsibility arising from the changes and deterioration occurred on the good within the time that the good kept by the consumer during the period of withdrawal, has been regulated under Article 13/2 of the Regulation. According to said provision, if the consumer uses the goods in accordance with its operation, technical specifications and use instructions, he shall not be responsible for changes and deterioraton occurred. Otherwise, the consumer shall be responsible.
5. Effect of the Right of Withdrawal to the Side Contracts
According to the Article 14 of the Regulation, when the consumer withdraws properly from the distance contracts, the side contracts provided to the consumer additionally related to the distance contracts will end up with no expense, penalty or compensation. Linked loans which are mentioned in the Article 30 of the LOPC, is an exception to this. If a third party, except from the seller/ provider, involves the contract, they must announce to the seller/provide that the side contracts came to the conclusion the conclusion.
6. Exceptions
Unless otherwise agreed on, the contracts that the right of withdrawal cannot be used by the consumer have been regulated in the article 15 of the Regulation. These exceptional contracts are listed below as 10 subclauses.
a) Contracts that the price changes based on the financial fluctiations or contracts with regard to the goods or services that are not under the control of the seller. (oil, distance contracts involving the sale of some agricultural or mining products)
b) Commodity contracts prepared in line with consumer’s requests or personal needs (distance contract established via a phone call for sewing a trouser)
c) Contracts for delivery of the goods that can be quickly deteriorated or whose expiration date may pass quickly.(distance contracts for food delivery)
d) Contracts for goods that are unsuitable for delivery in terms of hygiene and health because of opening packaging materials such as packaging, tape, seal, after delivery. (Contracts for delivery of beverages etc.)
e) Contracts regarding the goods that are mixed with other products after delivery and can not be separated by its nature
f ) Contracts regarding the boks, digital content and computer equipments submitted in the physical environment in the event that protective materials such as package, tape, seal are opened
g) Contracts regarding the delivery of periodicals such as magazines, newspapers other than those covered by the subscription agreement. (one-off magazine order)
h) Contracts regarding the evaluation of leisure time and that should be made for a spesific date such as accommodation, car rental, transport of goods, entertainment and food and beverage supply (Distance contracts with the campaign etc.)
i) Contracts regarding the immaterial goods delivered to the consumer instantly or the services that are performed instantly in the electronic environment
j) Contracts regarding the services that are performed with the aprroval of the consumer before the expiration of withdrawal period
C. Other Provisions
1. Performance and Delivery
The performance of distance contract and the delivery of the concerned goods in case any sale of good is a subject matter, have been regulated under the Article 16 of the Regulation. According to the Article 16/1 of the Regulation, in distance contracts, the seller/provider is obliged to complete the performance of the contract, within the time promised. In sale of goods, the duration for performing a contract, in other words the duration of delivery of goods, is maximum 30 days. In the event that the contract can not be performed within the time promised or the good can not be delivered on time, as per the Article 16/2 of the Regulation, the consumer is entitled to terminate the contract unilaterally. In case the consumer uses his right to terminate the contract, the seller/provider is obliged to return all payments received including the delivery costs and legal interest and to return the documents such as valuable papers or commercial papers, if he has regarding the distance contract.
If it is impossible to perform the service or the good subject to the order, the seller/provider is obliged to inform the consumer in 3 days as of the date he find out the situation, in writing or via permanent data store, as per the Article 16/4 of the Regulation. And also, all payments made by consumer including delivery costs must be returned within 14 days. However, it is clearly stated in the Regulation that the case of “goods being out of stock” can not be considered as impossibility of performance.
2. Damage Responsibility
In the Article 17 of the Regulation, the responsibility of the seller/provider arising from the delivery losses has been regulated. The liability of the seller/provider for the damages arising during the period of delivery, is limited with the losses and the damages incurred until the delivery of the goods to the consumer or the third parties designated by him. Also there is an exception for this damage responsibility. If the consumer requests a carrier other than the one (cargo, courier company etc.) determined by the seller for the delivery of the good to himself, the seller’s liability/responsibility ends up with the delivery to the carrier.
3. Phone Usage Fee
In the Article 18 of the Regulation, there is an important regulation in favor of the consumer concerning the establishment of the telephone line by the seller or provider in order for the customers to communicate. In cases where the telephone lines are used by the consumer, in order to avoid the consumer to pay a fee on a high tariff, it is regulated that the fees shall be determined at most on the basis of ordinary tariff.
4. Additional Payments
In the Article 19 of the Regulation, the request for an additional price from the consumer in addition to the base pay, regarding the distance contracts, is subjected to the explicit approval of the consumer. Even for the cases that the options, which impose an additional obligation to pay, are submitted automatically selected by itself, the seller/provider shall immediately return the additional payments if any additional payment has been paid by the consumer. For instance, in the event that several additional services, which impose an additional payment obligation on the consumer, are appeared on the screen as automatically selected by itself and the consumer has made any additional payment, the seller/provider shall immediately return the payment made.
5. Storage of Information and Documents
The Article 20/1 of the Regulation is imposed an obligation that the seller/provider shall keep all the information and documents regarding the each of the operations (e.g. delivery etc.) for 3 years. Similarly, as per the Article 20/2 of the Regulation, those who mediate the establishment of the distance contract by using remote communication tools (e.g. mobile phone) shall keep the records for 3 years and these mediators are obliged to give the mentioned records to the related institution, organization and consumers upon request. In addition, pursuant to the Article 20/3 of the Regulation, the seller/provider is obliged to prove that the intangible goods delivered to consumer electronically or the services being performed are free from defects.
IV. THE RELATION BETWEEN ELECTRONIC CONTRACTS ESTABLISHED IN THE INTERNET ENVIRONMENT AND DISTANCE CONTRACTS
It is seen that sometimes contracts established in the internet environment are used as synonyms with distance
contracts or named as a type of distance contracts. In
fact; contracts concluded in the internet environment,
even generally speaking electronic contracts and distance contracts are different concepts. The contracts
that have fulfilled the conditions regulated in the code
are considered as distance contracts. If any of these
conditions is deficient, we cannot mention the distance
contract. There is not a distance contract due to the
lack of conditions while the parties conclude contracts
online and separately after face-to-face negotiation or when the seller makes an online sale just for once without having any system related to the remote marketing
of the goods. However, in this case there is an electronic
contract which has been concluded online. Accordingly,
not every contract which has been concluded online is a
distance contract; but the contract can be considered as
a distance contract if one of the parties is a “consumer”
and has other conditions regulated in the article 48/1 of
the LOPC.
In practice, the majority of the electronic contracts concluded in the internet environment are distance contracts. However, as we mentioned previously, in order
to consider these contracts as distance contracts, one of
the parties must be a “consumer”. A contract where the
consumer is not a party, shall not be considered as a distance contract within the frame of the LOPC, even if it
fulfills every feature of a distance contract. Also, the sub ject of the contract must be a consumption product or a
service to be provided. As a matter of fact, in cases that
the buyer’s status is “consumer”; the buyer concludes a
contract with the seller without having any commercial
or professional purpose, just for being provided with
goods and services.
As a summary; it is not true to consider all of the e-commerce contracts as distance contracts. For instance; in
the type of e-commerce named as “Business-to-Consumer E-Commerce (B2C)”, goods or services of the
firm are presented to the consumer via their website, an
order from the consumer is taken in the electronical environment and it is ensured that the payment is made or banking services are presented to the consumers in the
electronical environment. In this kind of e-commerce
contracts, the buyer is always a consumer. In that case,
consumers shop online so they accept distance contracts and become subjected to the provisions related to
distance contracts.
V. CONCLUDING DISTANCE CONTRACTS IN THE INTERNET ENVIRONMENT AND THEIR ENTERING INTO FORCE
Likewise the other contracts, concluding distance contracts and their effectiveness are liable to the provisions
of the Turkish Code of Obligations (“TCO”). Distance contracts concluded online can be established both between present parties and absent parties. Although the
concept of “distance” in distance contracts means that
the parties are not face to face and not in the same environment; occurring the acceptance and proposal between the present parties does not mean that the parties
must be in a face to face environment. In such case that
the parties are in the same environment that they can
receive their declarations simultaneously, the contract
is concluded between present parties. The article 4/2 of
the TCO clearly indicates that the proposals made by devices which provides communication such as telephone,
computer during direct communication are considered
as made between present parties. Thereby, contracts
where the parties simultaneously present online their
declarations of intention are considered as distance
contracts made between present parties.
Distance contracts made online are mostly concluded by
declarations presented on websites. The dominant opinion that we have also agreed on shows that the contracts
concluded via websites are not concluded between present parties since in that situation it can not be said that
the parties are mutually online at the same time. Also in
principle, in the contracts concluded via e-mail, the parties are not mutually online so the declarations are considered as made between non present parties.
It is seen that there are different opinions as to whether
the sale of goods by indicating their price on the website
is an invitation to the proposal or the proposal itself.
It is more appropriate to make a decision based on the
principle of trust, considering the characteristics of the
tangible event, such as how the website operates and
how to order, rather than defining a general rule for the
presentation of goods on websites. However, in practice consumers usually make contracts by clicking on the acceptance box in terms of distance contracts during the
order so, it is more likely that the goods exposed for sale
on the Internet by indicating their prices is commonly
accepted as a proposal. In accordance with the article
8/2 of the TCO, sending the list of tariffs and exposing
products with indicating their prices will be considered
as proposal unless otherwise is obviously understood.
A contract between two present parties is concluded and
enters into force at the moment when the declaration of
acceptance is made. However, the contract between absent parties is concluded, according to the article 5 of
the TCO, when the declaration of acceptance reaches
out the party who has proposed; as it is stated in the article 11 of the TCO, it enters into force from the moment
that the declaration has been made. In the contracts
concluded via Internet between two present parties, at
the moment the declaration of acceptance is made, the
declaration reaches the other party and from now on
the contract is concluded and enters into force. In the
contracts between two absent parties, the declaration of
acceptance is considered as reached when it gets saved
on a server that the acceptor is connected to or its e-mail
box in a way that the related person can reach; it is not
necessary that the declaration is installed to the computer. The moment that the declaration of acceptance
has been made is the moment when the declaration left
the computer by pressing the send button. From now on,
the declaration has got out of the sender’s control.
VI. CONCLUSION
Distance contracts are contracts concluded between
the parties through the use of remote communication
tools, until the moment that the contract has been concluded and including the moment it was set up, within
the framework of a system established for the remote
marketing of goods and services without the simultaneous presence of the seller or provider and the consumer. The contracts related to” Business-to-Consumer
E-Commerce (B2C)”, which is a type of e-commerce,
can be given as an example of distance contracts. The
majority of the electronic contracts made by the consumers in the internet environment are distance contracts. Within this content, the consumers are subjected to the provisions related to distance contracts
in the consumer legislation. The consumers have the
opportunity to examine and order goods and services
that they want to buy by their phones or computers,
by virtues of e-contracts. The benefits of e-commerce which is pretty convenient for consumers, cannot be
doubted. However, it is also a fact that concluding a
contract without the seller or provider and the buyer
coming face to face and without physically having any
knowledge about the goods and services marketed, carries out various risks. The marketed goods or services
not having the promised quality, being defective and
not delivering the goods on time or not delivering them
at all or not receiving the service are some examples of
the risks aforementioned. For this reason, in the seller/
provider and buyer relationship, it has become a necessity to indicate the rights and the obligations within the
limits of law and it is well-decided that the regulations
about distance contracts are regulated in the consumer
legislation.
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