The basis of sales contracts consist of an offer-acceptance relationship. The seller determines the price of the product offered for sale and offers this price to the public. A contract is established when any consumer declares their will to purchase the product at the relevant price. After this point, the seller is obliged to sell the product to the consumer at the price indicated. Fundamental mistake in the contract price is one of these exceptions and it will be further examined below.
Offer and Acceptance at Distance Selling Contracts
The provisions regarding the establishment of contracts are regulated between Articles 1 and 11 of the Turkish Code of Obligations. Contracts are established by the mutual and appropriate expression of consent of the parties according to these provisions. This expression of consent may be explicit or implicit.
Currently, the online shopping network has spread immensely due to the effect of developing technology, changing age and the worldwide pandemic. It is possible to order a wide scale of products such as textiles, food, technology and building materials with a single click and have it by our doorstep in no time. The seller specifies the product image and price on the website in distance sales contracts concluded with the online shopping method. A sales contract is formed when the consumer chooses the product and price that suits them and places an order. This simple and completely online system naturally causes some technical problems.
The constitutive element of sales contracts is the price of the product. However, there may be fundamental mistakes in the contract price due to errors made while entering price information into the web system. Such errors are especially seen to occur during discount periods or purely due to technical problems. This situation has led to questions as to whether the seller's obligation to deliver the relevant product will be valid due to the valid conclusion of the contract pursuant to the provisions the Turkish Code of Obligations (TBK) and the Turkish Code on Protection of Consumers (TKHK)
There are many Court of Cassation decisions on the related topic however the decision of the 3rd Civil Chamber of the Court of Cassation dated 22.11.2021 numbered 2021/6303 E. 2021/1188 K. is the most current one.
The court stated “It has been understood that the plaintiff claims that he sells his products online and the defendant signed a distance sales contract through the website regarding the item of which the sale price was seen as 6.00-TL, however the actual sales value was 5.999.00-TL. (...) When the purchase entered the company's system, it was determined that the price tag of the product was entered incorrectly, that although the product was originally 5,999.00-TL, it was erroneously offered for sale by the company as 6.00-TL. Therefore the defendant's sale was cancelled. The situation was later on explained to the defendant. Additionally, a gift card of 20.00 TL was provided to the defendant in order to ensure customer satisfaction although any damages did not occur. The defendant nevertheless applied to the arbitral tribunal for consumer disputes, (…) The court of first instance dismissed the case stating that the fact that the goods cannot be provided at the advertised price in the distance sales contracts does not necessitate the cancellation of the sale and that the seller must provide the product to the buyer at the price offered for sale.
The plaintiff filed the case for the annulment of the decision of the consumer arbitration tribunal regarding acceptance of his application to the tribunal. Additionally, the plaintiff has requested the delivery of the undelivered goods subject to the contract at the discounted price. The defendant has not responded to the case. The court of first instance dismissed the case on the grounds that the fact that the goods subject to the distance sales contracts cannot be supplied at the advertised price does not necessitate the cancellation of the sale and that the seller is obliged to supply the product to the buyer at the price offered for sale.
According to Article 30 of the Turkish Code of Obligations, "The party that makes a fundamental mistake while establishing a contract is not bound by the contract”.
Regarding the case at hand; considering that the price of the product that is the subject of the lawsuit is 5.999.00-TL, it is clearly understood that entering the sales price of the product as 6.00-TL is a fundamental mistake in establishing the contract price. The contract price is one of the founding elements of the contract. Therefore, it cannot be claimed that the plaintiff is bound by the aforementioned contract. The court of first instance should have rendered a decision in accordance with Article 30 of the Turkish Code of Obligations. The decision to dismiss the case with an erroneous assessment is against the procedure and the law.” in the aforementioned decision.
With this decision of the 3rd Civil Chamber of the Supreme Court of Appeals, the case of making a fundamental mistake during the establishment of the contract was evaluated within the scope of TBK 30. Further on, it is not possible to talk about a mutual unity of consent since the decisive point in the establishment phase of the contract is the agreement of the consent of the parties. It is clear that seller does not have the consent to sell the relevant product at a very low price in the event subject to the decision. According to article 30 of TBK, the claim of the party who claims to have made a fundamental mistake will especially be accepted if they have “expressed their will for an action significantly more than they actually want to undertake, or for a counter-act significantly less than they actually want”.
Prof. Dr. Kemal Oğuzman and M. Turgut Öz also share similar views on the subject. They claim that “If there is a clear disproportion between the objectively appreciated values of the acts, that is, easily noticed by anyone who understands the business, the first condition sought in the law will be fulfilled."
In conclusion, the seller will not be bound by the contract pursuant to article 30 of the TCO in situations where they have undertaken a counter-performance significantly less than they actually wanted to as this means that they have made a fundamental error in the contract price. Therefore, the seller's obligation to deliver the product will be eliminated. In such a case, if the seller performs the delivery, the consumer will receive an unfair and clearly disproportionate benefit, while the seller will have performed an unfair and clearly disproportionate act. This issue is in violation of Articles 30 and 31 of the TBK, as well as the rule of good faith in accordance with Article 2 of the TMK.
Ece Perçinkaya, LL.M.
1. 13th Civil Chamber of the Court of Cassation Docket No: 2015/4023 Decision No: 2016/10471 Date: 14.4.2016.
2. General Assembly of Law of the Court of Cassation Docket No: 2017/11-3154 Decision No: 2018/1847 Date: 4.12.2018
3. 1st Civil Chamber of the Court of Cassation Docket No: 2019/366 Decision No: 2019/2824 Date: 18.4.2019
4. 3rd Civil Chamber of the Court of Cassation Docket No: 2021/6303 Decision No: 2021/1188 Date: 22.11.2021
5. Oğuzman Kemal\Öz M. Turgut, Borçlar Hukuku Genel Hükümler, 13th Edition, Vedat Yayıncılık İstanbul 2013, p.135-136.