ERDEM-NEWSLETTER-2018-metin

33 COMMERCIAL LAW limited to commercial sales between merchants and does not cover consumer sales. Scope of the Contractual Guarantees As is also the case in the Turkish law, the United Nations Con- vention on Contracts for the International Sale of Goods (“CISG” or “Convention”), as well as many other legal systems, stipulate optional rights, as well as the right to compensation for the buyer in the event of defect, such as rescission of the contract by notifying the seller that it is going to return the sold goods, request price reduction in proportion to the defect while retaining the goods, request free repair of the goods, which shall be covered by the seller, and request replacement of the goods with a defect-free similar good. The buyer is obliged to comply with the periods of examination and inspection that are stipulated in the applicable law. These rights may be extended, repeated, limited, or completely removed with the contractual guarantees stipulated in the sales contract. In the event the parties are willing to apply contractual terms by removing the liability regime stipulated by the law, they must explicitly decide to do so; otherwise, the provisions regarding the defects liabil- ity shall continue to exist and compete with the claims that arise due to contractual guarantees 1 . For the sake of clarity, it must be stipulated under the sales contract that all of the provisions related to guarantee and liability, stipulated clearly or implicitly under the law be excluded and shall not be applied. In an unclear situation, interpretation shall be made in favor of the buyer 2 . Provisions that Limit or Remove the Seller’s Liability The following examples may be given to the provisions that limit or completely remove liability: Provisions that completely remove seller’s liability; provisions that stipulate a compensation cap that shall be paid to the buyer (for example, indirect damages shall not be 1 Kapancı, Kadir Berk : 6098 Sayılı Türk Borçlar Kanunu Açısından Satış huku- kunda Ayıptan Doğan Sorumluluk ve Sözleşmesel Garanti Taahhütleri, İstanbul 2012, p. 187-188. 2 Kapancı , p. 25.