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TURKISH PRIVATE LAW-

CIVIL LAW

Dr. Özlem Döğerlioğlu IŞIKSUNGURYaşar 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

CIVIL LAW Legal rules related to

PersonalityMarriage, family relationsProperty Successionobligations

The fundamental source of Turkish civil law is CIVIL CODEFirst Turkish Civil Code was adopted from

Switzerland in 1926 In 2002, new version of Civil Code was

enacted

TURKISH CIVIL CODE Consist of

a Preliminary Chapter andFour 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)

GENERAL PRINCIPLES OF TURKISH PRIVATE LAW

Preliminary Chapter of Turkish Civil CodeArticle 1-7Provisions regulated in “Preliminary

Chapter” are the general principles which are applicable to all of the branches of private law.

PRELİMİNARY CHAPTER OF TURKİSH CİVİL CODE

Article 1 of Civil CodeA-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.

PRELİMİNARY CHAPTER OF TURKİSH CİVİL 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.”

PRELİMİNARY CHAPTER OF TURKİSH CİVİL 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”

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.

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

DiscretionThere is applicaple legal rules but GENERALWithin the limits mentioned in the laws-

choices Interpretation and fill in the gaps

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

PRELİMİNARY CHAPTER OF TURKİSH CİVİL 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 CodeBurden 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.

PRELİMİNARY CHAPTER OF TURKİSH CİVİL CODE

Article 7 of Civil CodeProof 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

PRELİMİNARY CHAPTER OF TURKİSH CİVİL CODE

TÜRK MEDENÎ KANUNU Kanun No. 4721 Kabul Tarihi : 22.11.2001 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.

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

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)

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

CAPACİTY 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

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)

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

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

HEIRS(MİRASÇILAR) 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.

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

FAMILY LAW Regulates the relationship among

persons such as engagement, marriage, divorce, parent-child relations, adoption, guardianship(vesayet)

Property systems of spousesLegal 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).