TurkIsh prIvate LAW-cIVIL LAW

1. TurkIsh prIvate LAW-cIVIL LAW Dr. Özlem Döğerlioğlu IŞIKSUNGUR Yaşar University Faculty of EconomicsandAdministrativeScience IntroductiontoLaw – LectureNotes Dr. ÖzlemDöğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gözübüyük,Ş.HukukaGiriş 2010

2. CIVIL LAW • Legal rules related to • Personality • Marriage, family relations • Property • Succession • obligations • The fundamental source of Turkish civil law is CIVIL CODE • First Turkish Civil Code was adopted from Switzerland in 1926 • In 2002, new version of Civil Code was enacted

3. TurkIsh cIVIL CODE • Consist of • a Preliminary Chapter and • Four Books • Book One---- Law of Persons (Article 8-117) • Book Two----- Family Law (Article 118-494) • Book Three----- Law of Succession (Article 495-682) • Book Four------ Law of Property (Article 683-1027)

4. General prIncIples of TURKISH prIVATE law • Preliminary Chapter of Turkish Civil Code • Article 1-7 • Provisions regulated in “Preliminary Chapter” are the general principles which are applicable to all of the branches of private law.

5. Preliminary Chapter of Turkish Civil Code • Article 1 of Civil Code A-Application and sources of Law : “The law must be applied in all cases which come with in the letter or the spirit of any of its provisions. Where no written provision is applicable, the judge shall decide according to customary law and, in default there of, according to the rules which he would lay down if he, himself had to act as legislator. Herein he must be guided by legal doctrine and case law.” • Law Making Function of Judge Where provisions are inapplicable, the judge should decide according to a- the existing customary law b- in default there of, the rules he would lay down, if he himself had to act as legislator.

6. Preliminary Chapter of Turkish Civil Code • Article 2 of Civil Code • Conduct in good faith • “Every person is bound to exercise his rights and fulfill his obligations according to the principles of good faith • The legal order does not sanction the manifest abuse of a right” • Article 3 of Civil Code • Bona fides • “Bona fides is presumed whenever the existence of a legal position is dependent on the observance of good faith. However, no person can plead bona fides in any case where he has failed to exercise the degree of care required by circumstances.”

7. Preliminary Chapter of Turkish Civil Code • Article 4 of Civil Code • Judge’s Discretion • “Where the law leaves a point the discreation of the judge or directs him to circumstances of the case into consideration or to appreciate whether a legitimate ground exists, he must base his decision on principles of justice and equity”

8. Judge’s dIscretION • Discretion • Public servant • For fulfillment of any assignment or attitude • Liberty to act • Judge’s discretion---limited • Ex. Article 27 of civil code – good causes– what are these? • ARTICLE 27-Change of name may only be claimed from the judge. • Any change made in the name is registered in the birth record and announced officially. • Modificationof the name does not result with change in the status of a person. • The person suffering damage due to change of name may litigate within one year as of thedate of notification of this fact claiming abrogation of the judgement given for change of name.

9. Judge’s dIscretION • Law making- discretion----Differences • Law making • No provision applicable (neither in the law nor in the customary law) to the legal conflict • Discretion • There is applicaple legal rules but GENERAL • Within the limits mentioned in the laws- choices • Interpretation and fill in the gaps

10. UsINg of JudICIal dIscretION • No arbitrary(keyfi) usage • Act in conformity with the followings: • Within the limits of discretion • Abide by the conditions (if mentioned) required by law • Equity rule • Choice should be compatible with laws • Legal grounds(gerekçe)– reasons should be mentioned • Briefly: judge shall take into consideration • The position of the parties • the characteristics of the conflict • Equity • Law

11. Preliminary Chapter of Turkish Civil Code • Article 5 of Civil Code • “The general provisions of this Code and Code of Obligations apply mutatis mutandis to all private law relations” • Article 6 of Civil Code • Burden of Proof • “In the absence of a special provision to the contrary, each party is bound to prove the existence of the facts on which he bases his right.

12. Preliminary Chapter of Turkish Civil Code • Article 7 of Civil Code • Proof by public documents • “Entries made in public registries and official deeds(duly authenticated documents) are sufficient evidence of the facts which they state. • The proof of inaccuracy of these is not required to be in any special form unless otherwise provided for by law

13. IMPORTANT! • The rules regulating obligations between private persons are codified in a sperate code: Code of Obligation • First Turkish Code of Obligation was adopted from Switzerland in 1926 • In 2011, new version of Code of Obligation was adopted. • But, Code of Obligation is regarded as an integral part of the Civil Code • The Code of Obligations consists of two main parts: • General Principles • Specials provisions---- sale of goods, loans, agency, rent

14. Law of persons • Concerns the legal existence of person • Article 8 of Civil Code “Every person can be subject of rights, within limits imposed by law, they have an equal capacity to posses rights and duties” • Legal personality begins with birth • Legal personality ends at death • Between conception (ceninin ana rahmine düşmesi) and birth, the child is deemed to have legal capacity, on condition that the child borns alive (Article 28/II of Civil Code)

15. Law of persons • Persons are subjects of private law • Law gives rights and imposes duties • Law of Persons- rules regulating the relationships of person in matters such as the creation and termination of personality, legal capacity of person • Classification of Persons • Real persons • Legal person--- (Example: a corporation, a foundation-vakıf, a professional association-meslek birliği) • Private • Public

16. Capacity • capacity to act: fiil ehliyeti, hakları kullanma ehliyeti • capacity to be the subject of right:hakehliyeti; haklardanyararlanmaehliyeti • The legal capacity of legal persons differs from that of real person. • They can acquire rights, own property, incur contractual liability, sue (to be sued) • No family relations

17. The CondITIONS OF CAPACITY to act OF REAL PERSONs • To attain majority---- Majority(Rüşt) is attained by reaching age of 18 years • Under 18 years- by marriage may attain majority (man 17, woman 15) • By court decision • Completion of age of 15 years • Demand for having majority • To be heard of legal representative • benefit • Maturity- (Compos mentis -mümeyiz olmak)(iyiyi kötüden ayırabilme durumu) • To be under age (yaş küçüklüğü) • Mental disorder • Mental defect (akıl zayıflığı) • Drunkenness (sarhoşluk) • Not to be legal incapacity (Kısıtlı olmamak)

18. CLASSIFICATION OF REAL PERSON WITH RESPECT TO THEIR CAPACITY • Full capacity • Limited capacity to act--- Sınırlı ehliyetli • Full incapacity • Partial incapacity

19. LAW OF SUCCESSION • Deals with passage of a person’s property rights at his death • Article 35/1 of Constitution “Every person has the right to own and inherit property” • Regulated in Civil Code (Article 485-682) • General rule: In the absence of an express provision made by deceased person, his estate (tereke) will go to his close relatives upon his/her death.If there is no one to State. • People are free to dispose of their property at their death • People may execute will– they may leave their property to real or legal person they as they choose

20. heIrs(mirasçılar) • Two types of heirs: • Statutory • Expressly provided for by the Civil Code • The heirs: • the first line --- descendants(füru-altsoy) of the deceased person • Second line----If the deceased person left no descendants, the parents (usûl, üst soy) and their descendants • Third line--- his grandparents and their descendants • Among the members of each parental those nearest in degree take the priority over those removed. Any predeceased person in any degree will be represented by his/her descendents • Surviving successors • Equality between male and female successors • Appointed • Expressly and specifically designated by the deceased in a will

21. Other person who may INHERIT • Children born outside of marriage • Recognized by father • Whose paternity is established by court May inherit from their father equally to the children who were born within the marrige • Adopted children • Treated the same as legimate natural born children of of the deceased. • Receives the same amount as the other chldren of deceased • Surviving Spouse • Shares the estate with leaving blood relatives of deceased • Together with descendants of deceased-- surviving spouse ¼ • Together with second parental of deceased---- surviving spouse ½ • Together with grandparents of deceased surviving spouse ¾. If there is no grandmother takes the whole

22. famIly law • Regulates the relationship among persons such as engagement, marriage, divorce, parent-child relations, adoption, guardianship(vesayet) • Property systems of spouses • Legal Marital Property System • Participation in the acquired property (edinilmiş mallara katılım) • Contractual system. • separate property system (mal ayrılığı) • shared property system (paylaşmalı mal ayrılığı)or community of property system (mal ortaklığı).

23. Law of property • The acquisition and loss of property rights • The content and the limits of rights over movable& immovable things • Registration and transfer o property • Mortgage (ipotek) • IMPORTANT: Some problems related to property rights subject to different law--- not Law of Property • Eg: In case of expropriation of the immovable property by State or other public corporate body.--- Law of Expropriation

24. Law of oblIGATION • 1926---Swiss Code of Obligation was adapted by Turkey. • In January 2011, Grand National Assembly adopted the new version. • 1st of July 2012, the new Code of Obligation entered into force • Subject matter of the Code Enforceability of obligations through legal proceeding.

25. Law of oblIGATION • The legally enforceable obligation derives from bilateral relationship • One party asks for from the counter party to act in a certain manner • Essential elements of legally enforceable relationship: • Parties • Eg: the creditor and debtor • Performance (edim) • Action or service that the forms the subject matter of the obligation---- the performance of which the creditor may demand from debtor

26. TYPES OF ObLIGATIONS • Obligations of Contractual Origin • Obligations in Tort(haksız fiil) • Obligation arising from Unjust enrichment (sebepsiz zenginleşme)

27. A- ObligatIONS OF CONTRACTUAL orIGIN • Contract: An agreement that is enforceable which creates rights and duties between parties • The elements for valid contract • Mutual Consent of the parties (offer and acceptance) • Legal Capacity • Legal Subject Matter • Formalities in some cases

28. A- ObligatIONS OF CONTRACTUAL orIGIN- Cont. • Every contract should have legal ground (hukuksal neden) • Eg: Sale contract– obligations constitute legak ground IMPORTANT: In the formation of contract the agreement between parties may • Express OR • Implied

29. A- ObligatIONS OF CONTRACTUAL orIGIN- Cont. • Contract can be written or unwritten. • Contract does not need to be writing – to be binding • Unless otherwised mentioned by law, contracts are valid without a special form • But: A contract of guarentee should be written. WHY? • Code of Obligation requires written form for the validity

30. A- ObligatIONS OF CONTRACTUAL orIGIN- Cont • To have a valid contract each party must have legal capacity to consent and consent given must be genuine (gerçek) • Must not be obtained by • E.g. Fraud (hata) or duress (ikrah) • The legality of the subject matter of contract. • Eg. Contracts concerning black market (karaborsa) or smuggling

31. A- ObligatIONS IN TORT • There is no voluntary agreement • It derives from an obligation imposed by law for persons to act in a prudent manner and cause injury to the personal or property rights of another • Eg: Reckless driver

32. A- ObligatIONS arISING FROM UNJUST RICHMENT • A general equitable principle that no person should be allowed to profit at another's expense without making restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained. • Eg: Second payment for the same debt.

33. Commercial Law • Shortly, it is a branch of law that covers commercial activities concerning production, interchange and consumption. • In the public- private law distinction, it takes place in private law • It is a body of rules applicable to commercial relations and organisations

34. CommercIAL CODE • Introductory Chapter (Article 1-10) • Book One: Commecial Enterprise • Book Two: Corporate Law • Partnership– capital invested • Partnership– personal identities of partners • Book Three: Negotiable Instruments • Book Four: Transport Business • Book Five: Maritime Law • Book Six: Insurance Law

35. COMMERCIAL PARTNERSHIPS • New development: • One man company---single member partnership • These partnerships may have organs such as: Board of Directors, auditing units • Types of partnerships: • Partnerships where the salient feature is the capital invested • Joint stock companies • Limited libility company • Commandite partnership whose capital is divided into shares (sermayesi paylara bölünmüş kommandit şirket) • Partnerships where the personal identities of the partners rather than capital are important • Collective company (general partnership) • Commandite companies

36. JOINT STOCK COMPANY • Capital is the dominant factor • At least one single or legal person may establish the company • Ownership in a corporation is distributed by legal instruments called shares • The person who holds shares: Shareholder • Share: the monetary value of the ownership that the corporation assigns to each share

37. LIMITED LIABILITY COMPANY • Regulated in Article 573-644 • At least one single or legal person may establish the company • The number of the partners may not exceed 50 • The liability of limited partnership is limited by the amount of capital • There is personal liability for tax debts of the company and the debt of the other partners • Minumum capital: 10.000 TL

38. Co-operatıves • Aim: to secure by mutual assistance and support the common economic advantage of the partners.

39. NegotIABLE INSTRUMENTS • Valuable documents • Used in commercial transactions • Circulated like money • Example: Corporate share certificates, bills of lading, cheques • Documents represent money • Freely traded • Exchanged like money

40. Private INTERNATIONAL LAW • States • Its own legal system • Its own laws--- eg. Contract, familiy, • The law can vary from one state to anther • Mobility & International Trade • Eg. Turkish company imports goods from Germany • Companies based in two country • Different legal system

41. Private INTERNATIONAL LAW • It is branch of law that specifically deals with conflict of law problems amongst state. • AIM: not to solve the substantive problem • To provide a framework of legal rules to determine which state’s law applies to a legal dispute

42. Private INTERNATIONAL LAW • Types: • Conflict of Law • Law of Nationality • Law of Aliens

43. Private INTERNATIONAL LAW • Conflict of Law: • Question: Which state’s law shall be applied to the dispute? • 1- Which court shall have jurisdiction to decide the case? • 2- Which State’s substantive law shall be applied to the legal conflict? • Jurisdiction: Before answering the question about “substantive law”, the question about “jurisdiction”

44. Private INTERNATIONAL LAW • CASE 1: • The contract between two Turkish national living in Germany • The subject of the contract is sale of real estate located in Izmir • Dispute arises breach of contract • German Court or Turkish Court? • Which Court has jurisdiction?

45. Private INTERNATIONAL LAW • The first court seized must make the determination by applying its own national conflict of law rules. • Eg. German Court – German Conflict of Law • IMPORTANT: Only the court that has proper jurisdiction can answer the second question

46. Private INTERNATIONAL LAW • CASE 2 • A contract signed in Italy • Parties: Turkish Company and French Company • Subject of the contract: delivery of goods in Spain • Head office of Turkish Company is in Istanbul • Breach of contract • Turkish Company applied to Istanbul Commercial Court. • Do you think it is true?

47. Private INTERNATIONAL LAW • The Court (Istanbul Commercial Court) should ask: Do I have jurisdiction– Do I have legal power to hear the case? • Istanbul Court only decide whether it has jurisdiction or not? • If the answer is yes than the Court should answer the second question. “ Substantive law”- Which law can be applied to the merits of the case. • Probable: • Italian law--- law of the place where the contract was made • Turkish law--- law of the place where the case is being heard • Spanish law--- law of the place where the contract is to be performed

48. Private INTERNATIONAL LAW • The rules to choose the applicable law in concrete case --- according to Private International Law (conflict of law) • IMPORTANT: The conflict of law rules of a country may indicate that in a particular case the applicable law is another country’s law.

49. Private INTERNATIONAL LAW • CASE 3 • German woman • French man • Marriage in Turkey • Legal problem: Bridge’s capacity • “Capacity to marry is governed by national law of spouses”– Turkish Code of Private International Law- Article 12(1) • Bride’s capacity German Law • Bridegroom’s capacity French Law

50. Private INTERNATIONAL LAW • Law of Nationality: • Necessity of determination of the nationalities of the parties in the resoultion of the dispute. First • May be problem– if there is more than one nationality or none (stateless) • Marriage may confer nationality automatically or through certain procedure