NEWSLETTER-2017

270 NEWSLETTER 2017 Replacement of the Defective Goods The right of replacement of the defective goods, which is another optional right that is vested to the buyer under Article 227 of the TCO, is only exercisable for generic obligations. Considering the obliga- tions involving a unique item, the exercise of this right can only be practiced in case the parties agree upon this issue. Whereas article 227 of the TCO entitles the buyer to this right, it also entitles the seller the right to prevent the buyer from exercising his optional rights by immediately replacing the same sold thing free of defect, and by com- pensating the buyer for all of the damages it incurred. Right to Claim Compensation for Damages according to the General Provisions One of the most vital introductions that the TCO brought to the Code of Obligations numbered 818 is the right to claim compensation according to the general provisions for the damages that the buyer exposed due to the delivery of the defected goods, pursuant to Article 227 of the TCO. Such innovation in the TCO brings controversies together with its introduction. It is arguable whether the buyer is re- quired to fulfill its obligation to inspect and notify in order to claim compensation for damages with its optional rights or independently from its optional rights. Another controversy is as to whether the stat- ute of limitations of two (2) years will be applied to these kinds of claims pursuant to Article 231 of the TCO, or whether the statute of limitations will be ten (10) years according to Article 146 of the TCO. It is worthy of note that this issue is clarified in the preamble Article 227/2 of the TCO: “… it is stated that as acknowledged in the doctrine and practice, regardless of whether the buyer exercised its optional right, the buyer’s right to claim compensation for damages that it suffered due to the delivery of the defective goods, according to the general provisions is reserved. However, given the consequences of the exercise of the right to revoke the agreement by the buyer due to the fact that the sold thing is defective, are stipulated in Article 229; there is no hesitation on the possibility for the buyer to claim compensation for the damages according to the general provisions