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TIED LOAN

Free consumer loans are loans given directly to the consumer by the lending institution, where the consumer can buy the goods or services they want from the seller or provider they want. In practice, financing of consumer transactions aimed at providing goods and services, which is a type of credit that can be regarded as the opposite of free loans, is provided by a third-party credit institution, which is in cooperation with the seller or supplier of the goods that is the subject of the transaction. In this transaction, there is a tripartite legal relationship consisting of the consumer, the seller of the goods or the service provider, and the credit institution. There is an agreement between the creditor and the seller-provided regarding the supply of goods and services. Based on this agreement, the credits used by the consumer, who will purchase goods from the seller-supplier specifically for financing this good or service, are called tied loans[1].

Accepting a loan as a tied loan increases the lending institution's responsibility, and in this respect, it aims to protect the consumer. The sales agreement between the consumer and the seller and the credit contract between the consumer and the creditor are independent contracts. If a consumer loan is not accepted, as a result of the independence of the contracts, the consumer will not be able to assert against the lender any rights that he may have against the seller/supplier. As a result, the consumer, who is obliged to pay his debt to the credit institution, will be vulnerable in cases such as the seller/supplier's failure to fulfill his/her performance or incomplete/defective performance[2].

To prevent the above-mentioned inconveniences, this tripartite legal relationship, called tied credit, is regulated in item (art.) 30 of the Law on the Protection of Consumers law on the protection of the consumer numbered 6502. Thus, the resulting risk is prevented from being left to the consumer. In this study, what the tied loan is, in which cases the loan will be accepted as a tied loan, how and what level of protection will be provided to consumers in this relationship, and the conditions of this protection provided to the consumer will be examined.

1. Tied Loan

Bound loans law on the protection of the consumer m. edited at 30. According to this; ‘Tied loan agreement; is a contract in which a consumer loan is given exclusively for financing a contract for the supply of a particular good or service, and these two contracts objectively form an economic union.'

The loan provided by the lending institutions is allocated to finance a contract established to purchase goods or services from a third party[3]. If there is an objective association between these two contracts, there is a tied loan. Here, there is a three-sided legal relationship consisting of the bank, the consumer, and the seller-provider. Tied loans are generally the result of three separate contracts. First of all, a framework agreement is made between the seller and the bank, which includes providing loans to customers. Secondly, a sales contract is made between the consumer and the seller regarding the provision of goods or services[4]. After that, a consumer loan agreement is made between the bank and the consumer. This tripartite relationship was also mentioned in the Supreme Court decisions[5]. Here, the credit institution usually makes the payment directly to the seller or provider, not to the consumer, and the creditor pays the installments to the credit institution. Here, the lender usually makes the payment directly to the seller or provider, not to the consumer. The borrower pays the installments to the loan institution. In the tied credit system, the consumer is provided to make a contract with a particular vendor or provider, and the purpose is to credit a particular business[6]. There is cooperation between the lender and the seller/provider here. However, this cooperation does not have to be continuous. Cooperation may include financing one or more contracts for the supply of goods and services. The important thing is the existence of economic unity between the contracts[7].

For example; The consumer who wants to buy a car is sent to the bank with which he is in direct cooperation with the car dealer. The bank pays this loan to the seller or provider on behalf of the consumer. The consumer pays the installments of the loan directly to the bank. In the tied credit system, mostly consumers use loans with lower interest rates than normal. Sellers, on the other hand, can increase their competitiveness by offering their goods and services to more consumers thanks to credit institutions. Credit institutions can also reach more consumers through vendors/providers.[8].

1. TIED OF ASSOCIATED LOAN

Two elements must be present for a consumer loan to be considered a tied loan. First, consumer credit must involve financing a contract for the supply of a particular good or service. Secondly, there must be an objective economic union between the two contracts made by the consumer (consumer loan contract and contract with the seller/supplier for the supply of goods or services).

Involves Financing of a Contract for the Supply of a Specific Good or Service

The first element of the tied loan agreement is that this loan is given to provide the necessary financing for the supply of a particular good or service. The first element of the tied loan agreement is that this loan is given to provide the necessary financing for the supply of a particular good or service. As stated in the Supreme Court decisions[9], the important thing is to determine the economic cooperation between the bank and the seller/supplier[10].

Finding an Objective Economic Union

To be referred to as tied credit, these two contracts made by the consumer (consumer contract to provide goods or services and consumer credit contract) must also objectively form an economic union. An economic union exists if the conclusion and meaning of one of the contracts depend on the conclusion of the other. For this reason, it should be evaluated in every concrete case whether there is a relationship that creates an objective economic union between the consumer, the seller-provider, and the creditor[11]. An example of the existence of an economic union is the seller/supplier's declaration, through advertisements, that the consumer will be granted credit under favorable conditions and that the loan amount and the cost of goods and services will be paid[12]. law on the protection of the consumer item the existence of an economic union is deemed to exist in the presence of at least one of the three conditions listed below;

The seller or the provider finances the loan for the consumer: Ensuring the possibility of reduction in loan interest rates[13] etc. can be given as an example.

The lender's use of the services of the seller or provider in connection with the signing or preparation of the loan agreement: Here the seller or the provider acts as the direct representative of the lender. Rights and debts arising from the consumer loan agreement signed with the consumer as a direct representative arise on the creditor, the institution represented[14]. For example, the seller providers being authorized to accept the loan application on behalf of the bank, having the documents signed[15], giving the documents about the consumer loan agreement to the consumer by the seller together with the sales contract[16], etc. examples of these situations. In practice, it is realized by allocating a place to the bank personnel in the workplace of the seller/supplier and by signing the ready-made printed contracts by the consumer or by directing the consumer to the relevant bank via the website in online sales over the internet.[17]

Explicit indication of the delivery of a particular good or service in the loan agreement: To be able to talk about a connected consumer loan, it is not necessary to include information that can determine the goods and services such as the name, seller, brand, and size of the goods and services in the loan agreement. However, if these are clearly stated in the consumer loan agreement, the existence of a tied consumer loan is accepted[18]. This issue was also stated in the decisions of the Supreme Court[19].

Existence of a Framework Agreement Between Vendor/Supplier and Lender

law on the protection of the consumer item pursuant to 30/5, 'Loans made by the creditor to pay the price of the good or service determined by the consumer without a contract between the creditor and the seller or the supplier regarding the supply of a certain good or service are not considered tied credits.' According to this provision, without a framework agreement[20] between the creditor and the seller-supplier that includes providing credit to the customers, the credits used in the form of paying the price of the goods and services determined by the consumer himself by the creditor, will not be considered as a tied credit even if the goods requested by the consumer are shown in the credit agreement[21]. The fact that the consumer cannot choose the seller/provider they want is also a determining factor in terms of evaluating the consumer loan as a tied loan[22].

However, this contract doesn't need to be made between the creditor and the seller/provider in writing. The parties may express their will for cooperation between them explicitly or implicitly[23].

RESULTS OF TIED LOAN

Termination of the Bound Credit Agreement in the case of the Consumer's Use of the Right of Withdrawal

Law on the protection of the consumer item by 30/3; ‘If the consumer withdraws from the contract for the supply of goods or services and the related notification is also sent to the creditor within the withdrawal period, the tied credit contract also terminates without any obligation to pay any compensation or penal clause.’ Thus, after exercising the right of withdrawal, the risk of not returning the sales price to the consumer by the seller is taken from the consumer and loaded into the credit institution[24]. Right of withdrawal law on the protection of the consumer item is specially arranged for sales contracts in installments at 18 and must be used within 7 days. However, in consumer contracts with cash payments, the price is paid with consumer credit, and partial payments are made to the creditor. In this case, since a partial payment consumer contract cannot be mentioned, there is no right of withdrawal. However, according to Gümüş, "the consumer has the right to withdraw and should be able to use this right against the entrepreneur, even in partially paid sales -economically--which, in the face of the clear letter of the law, takes on the appearance of a cash contract within the bound credit structure"[25]. In our opinion, considering the clear wording of the law, the existence of the right of withdrawal should be accepted economically in partial payment sales and related loans. To terminate the tied loan agreement, within these 7 days, the lender must also be notified that the right of withdrawal has been exercised. In case the creditor is notified that the right of withdrawal has been exercised, the agreements made that the consumer will compensate the creditor's loss or pay a penal clause are also void. However, in the government justification of the provision, it is stated that notifying the creditor that the right of withdrawal has been exercised is only necessary to prevent the debt of paying compensation and penal clauses. It has been stated that withdrawing from a consumer contract to provide goods and services will also terminate the self-bound consumer loan contract[26]. The period of use of the right of withdrawal in terms of housing finance loans is stated in the law on the protection of the consumer article in prepaid housing sales contracts. It has been determined as 14 days with a separate regulation in 43. Law on the protection of the consumer item ın 43/2, a special regulation was introduced. According to this; If the immovable is partially or completely purchased with a tied loan, the tied loan contract enters into force at the end of the right of withdrawal period stipulated in this article, to take effect on the date of the contract. The housing finance institution cannot demand any expense from the consumer under the name of interest, commission, legal liability, and similar names within the period of the right of withdrawal.' Even if the pre-paid housing sales contract appears in the form of cash sales in tied loans, the consumer can use his right of withdrawal without any reason, as stated in law on the protection of the consumer 43/2 [27]. According to this article, the dependent loan agreement will enter into force at the end of the 14-day right of the withdrawal period but will take effect from the date of establishment of the agreement. Within these 14 days, the bound loan agreement will not result in terms and consequences. As a result of this, the creditor receives interest, expense, commission, etc. from the consumer within the 14-day waiting period. Just as the consumer cannot demand payment on behalf of the seller, the consumer cannot demand the payment of the loan amount he has received to the seller as the sales price[28]. Joint Responsibility in case of Failure to Perform Goods or Services at All or Properly

Law on the protection of the consumer item according to 30/4; In subordinated loans, if the goods or services are not delivered or performed at all or as required, the seller, the provider, and the creditor are jointly liable if the consumer exercises the right to withdraw from the sales contract or discount the price. If the consumer uses the right of discount from the price, the tied credit is also reduced at this rate and the payment plan is changed accordingly. If the consumer uses his right to withdraw from the contract, the seller, the provider, and the creditor are jointly responsible for the return of the payment he has made until that day. However, the responsibility of the lender; is one year, limited to the amount of credit used, from the date of delivery of the goods or performance of the service specified in the sales contract or the dependent credit contract in cases where the goods are not delivered or the service is performed, and from the date of delivery of the goods or the performance of the service in cases where the goods are delivered or the service is performed.' In this article, it is regulated that the seller-provided and the creditor are jointly liable in case the goods and services are not performed at all or duly by the seller-provided and the consumer uses their right to discount the price or withdraw from the contract, and the duration, amount and consequences of this responsibility are stipulated. The joint liability of the lending institution is limited to the cases of revocation of the contract and reduction of the price. There is no joint liability in case of requests for repair and replacement with a non-defective double. These claims can only be brought against the vendor-supplier[29]. The liability of the creditor is also limited to the amount of credit used. Buna göre borç verenden faiz, komisyon, gider vb. diğer adlar altında alınan ödemeler hariç, sadece kullanılan kredi tutarının geri ödenmesi istenebilir[30].

State of joint responsibility in terms of housing finance loans law on the protection of the consumer item ıt has been specially arranged in 35/2, this regulation is in law on the protection of the consumer art. Since it is largely in line with the regulation in 30/4, our explanations above are also valid for this part. According to this; In subordinated loans, the seller and the housing finance institution are jointly liable if the consumer uses one of the optional rights specified in Article 11 of this Law because the house is not delivered at all or as required. However, the responsibility of the housing finance institution; is one year, limited to the amount of credit used, from the delivery date of the house specified in the housing sales contract or the affiliated loan agreement in case the house is not delivered, and from the date of delivery of the house in case of the delivery of the house.'

Conclusion

Tied loans are frequently seen in the practice to meet the needs of consumers and provide financial financing for consumers. Thus, consumers can reach the goods and services they need without saving financially. This widely used system has many advantages and disadvantages for its parties. For this reason, some provisions have been made in the system to protect the weak side of this relationship, the consumer.

SOURCE

[1] Yener, Mehmet Deniz, Innovations Introduced by the Law No. 6502 on the Protection of New Consumers in terms of Consumer Loans, Journal of Financial Research and Studies, Vol 7, No 13, 2015, p. 419.

[2] Kılınç, Hüseyin, Bound Consumer Loan Agreement and Lender's Responsibility, Ankara 2019, p. 76.

[3] Oğuz, Sefer, Commercial Loan Agreements in Terms of Banking Law, Ankara 2019, p. 224.

[4] Özel, Çağlar, Consumer Protection Law, Ankara 2018, p.193.; Yıldırım Akkayan, Ayça, The Problem of Whether Credit Card Contracts Can Be Qualified as Bound Consumer Loans, İÜHFM, C. LXXIII, 2015, Sa. 1 second. 268.; İnal, Tamer H., Consumer Law, Ankara 2014, p. 797.

[5] YHGK, 21.10.2015 T., 2013/2294 E. ve 2015/2330 K.

[6] İnal, P. 795.

[7] Yılmaz, Abdülhamit, Fixed Term Consumer Credit Agreements, İstanbul, On İki Levha Yayıncılık, 2018, p. 88.

[8] Demir Dalkılıç, Müge, Prepaid Housing Sales with Tied Loan, Marmara University, Master Thesis, Istanbul 2019, p. 59.

[9] Y. 13. HD., 19.10.2015 T., 2015/29827 E. ve K. 2015/30307

[10] Özgöz Yenice, Hava, Bank's Responsibility in Bound Consumer Loans, Istanbul University, Master Thesis, 2019, p. 13.

[11] İnal, p. 803.

[12] Özgöz, p. 16.

[13] Yener, p.420.

[14] Gümüş, Mustafa Alper, Commentary on the Consumer Protection Law No. 6502, Volume 1, Istanbul 2014, p. 208.

[15] Yener, p.420.

[16] Arkan, Sabih, Consumer Credit and Application, BATIDER, 1989, C. 15, Sa. 1, p. 40; Aktaran; Kılınç, p. 89.

[17] Özgöz, p. 20.

[18] Gümüş, p. 209.

[19] Y. 3. HD., 26.11.2018 T., 2017/10872 E. and 2018/12039 K.

[20] Y. 13. HD., 20.06.2013 T., 2012/20232 E. and 2013/16876 K.

[21] Gümüş, p. 212.

[22] Yıldırım, p. 273.

[23] Yılmaz, p. 79.

[24] Yener, p. 421.

[25] Gümüş, p. 210.

[26] Gümüş, p. 209.

[27] Gümüş, p. 262.

[28] Gümüş, p. 266.

[29] Yener, p. 422.; Gümüş, s. 211.

[30] Gümüş, p. 212.