Turkish private law civil law

1. TurkIsh prIvate LAW-cIVIL LAW

Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Yaşar University
Faculty of Economics andAdministrative
Science
Introduction to Law – Lecture Notes
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
1

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.
Change of 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 the date 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
“The general provisions of this Code and Code of
Obligations apply mutatis mutandis to all private
law relations”
Article
5 of Civil Code
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. Preliminary Chapter of Turkish Civil Code

TÜRK MEDENÎ KANUNU
Kanun No. 4721
BAŞLANGIÇ
A. Hukukun uygulanması ve kaynakları
MADDE 1.- Kanun, sözüyle ve özüyle değindiği bütün konularda uygulanır.
Kanunda uygulanabilir bir hüküm yoksa, hâkim, örf ve âdet hukukuna göre, bu da yoksa kendisi kanun koyucu olsaydı nasıl bir kural koyacak idiyse
ona göre karar verir.
Hâkim, karar verirken bilimsel görüşlerden ve yargı kararlarından yararlanır.
B. Hukukî ilişkilerin kapsamı
I. Dürüst davranma
MADDE 2.- Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük kurallarına uymak zorundadır.
Bir hakkın açıkça kötüye kullanılmasını hukuk düzeni korumaz.
II. İyiniyet
MADDE 3.- Kanunun iyiniyete hukukî bir sonuç bağladığı durumlarda, asıl olan iyiniyetin varlığıdır.
Ancak, durumun gereklerine göre kendisinden beklenen özeni göstermeyen kimse iyiniyet iddiasında bulunamaz.
III. Hâkimin takdir yetkisi
MADDE 4.- Kanunun takdir yetkisi tanıdığı veya durumun gereklerini ya da haklı sebepleri göz önünde tutmayı emrettiği konularda hâkim, hukuka ve
hakkaniyete göre karar verir.
C. Genel nitelikli hükümler
MADDE 5.- Bu Kanun ve Borçlar Kanununun genel nitelikli hükümleri, uygun düştüğü ölçüde tüm özel hukuk ilişkilerine uygulanır.
D. İspat kuralları
I. İspat yükü
MADDE 6.- Kanunda aksine bir hüküm bulunmadıkça, taraflardan her biri, hakkını dayandırdığı olguların varlığını ispatla yükümlüdür.
II. Resmî belgelerle ispat
MADDE 7.- Resmî sicil ve senetler, belgeledikleri olguların doğruluğuna kanıt oluşturur.
Bunların içeriğinin doğru olmadığının ispatı, kanunlarda başka bir hüküm bulunmadıkça, her hangi bir şekle bağlı değildir.
Kabul Tarihi : 22.11.2001

14. 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

15. 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)

16. 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

17. Capacity

capacity
to act: fiil ehliyeti, hakları kullanma
ehliyeti
capacity to be the subject of right: hak
ehliyeti; haklardan yararlanma ehliyeti
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

18. 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
Maturity- (Compos mentis -mümeyiz olmak)(iyiyi
kötüden ayırabilme durumu)
Completion of age of 15 years
Demand for having majority
To be heard of legal representative
benefit
To be under age (yaş küçüklüğü)
Mental disorder
Mental defect (akıl zayıflığı)
Drunkenness (sarhoşluk)
Not to be legal incapacity (Kısıtlı olmamak)

19. CLASSIFICATION OF REAL PERSON WITH RESPECT TO THEIR CAPACITY

Full
capacity
Limited capacity to act--- Sınırlı ehliyetli
Full incapacity
Partial incapacity

20. 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

21. 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
According to our Civil Code, all persons having the requisite
capacity, exercising sound judgement and who have
completed 15 year have testamentary capacity.

22. 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
The adoptive parents will not take from adopted child’s estate if he
predeceases them
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

23. 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
separate property system (paylaşmalı mal ayrılığı)or
community of property system (mal ortaklığı).