ISL364E 5.

Week
RULE OF EVIDENCE and
PRESUMPTION
 RULE OF EVIDENCE and PRESUMPTION
Art. 6 TCC: Rule of Evidence and Burden of Proof ‘Unless the law provides otherwise, the
burden of proving the existence of an alleged fact shall rest on the person who derives rights
from that fact.’
İspat yükü TMK Madde 6 -Kanunda aksine bir hüküm bulunmadıkça, taraflardan her biri,
hakkını dayandırdığı olguların varlığını ispatla yükümlüdür.
üGeneral rule of evidence: All parties (taraflar) must prove their acts in their favour. (Herkes
iddiasını ispatla yükümlüdür.)
• Exemption from this rule is a presumption (karine), which is defined as an act of accepting
that something is true until it is proved not true.
Eg. Presumption of fatherhood (babalık karinesi): In the context of a marriage, a person is
presumed to be the parent of a child if the person and the mother or father of the child are
married to each other and the child is born during the marriage.
Eg. Presumption of death (ölüm karinesi) The death of a person is deemed proven, even if no-
one has seen the corpse, if that person has disappeared in circumstances in which his death
may be considered certain.
Eg. Presumption of innocence in criminal law (masumiyet karinesi).
Law of Obligations
 Legal Transactions
By legal transactions, legal subjects can change the legal positions of
themselves or other persons intentionally!
1) Unilateral
2) Bilateral
3) Multilateral Transactions
 Bilateral/ Unilateral/ Multilateral Transactions
Unilateral (One-sided) Act (Tek taraflı hukuki işlemler)
The individuals (legal subjects) can cause legal effect/can change their legal
positions only by their own actions.
Examples of unilateral acts are
üwills ruling the succession of the testator (testament) vasiyetname
ütermination of a contract by giving notice sözleşmenin fesih ile sona
erdirilmesi
üexercise a power of appointment temsil yetkisi verme
ürecognition (acknowledgment) of paternity by the father evlilik dışı doğan
çocuğun tanınması
 Bilateral/ Unilateral/ Multilateral Transactions
Bilateral transactions: two parties exchange their mutual
promises. İki taraflı hukuki işlemler
Eg. Sale of goods (reciprocal agreement)
üDonation (bağışlama) is not a unilateral declaration of the
donor but a bilateral act (contract) between the donor and
the donee! (gratuitous acquisition: karşılıksız kazandırma)
Multilateral transactions: more than two parties exchange
mutual promises. eg. decision of the board of directors çok
taraflı hukuki işlemler
 Law of Obligations (Borçlar Hukuku)
• Turkish Code of Obligation (Türk Borçlar Kanunu) is applied.
• An obligation thus imposes on the obligor a duty to perform, and
simultaneously creates a corresponding right to demand performance by
the obligee to whom performance is to be tendered.
qThree causes of obligation: (borcun üç kaynağı, borç nelerden doğabilir?)
1) Contract (sözleşme)
2) Unjust enrichment (sebepsiz zenginleşme)
3) Tort (haksız fiil)
 Law of Obligations (Borçlar Hukuku)
Elements of an obligation relationship:
üObligor (debtor): obliged or responsible person borçlu
üObligee (creditor): benefits from the obligation alacaklı
üPrestation (indebted performance/ subject matter of obligation: the performance of which
the creditor may demand from the debtor) edim/ borcun konusu
Everything with an economic or financial value can be pointed out as the indebted
performance. To its nature one distinguishes three types of performances:
a. delivery of an object (to give/verme borcu):transfer of a good or the payment of a sum of
money
b. performance of a work (to do /yapma borcu): the employee who has the duty to carry
out certain labour activities on behalf of his employer
c. refrain from doing something (to do not /yapmama borcu) (debtor has the obligation to
refrain from doing something which he otherwise would have been allowed to do) non
disclosure clauses )In an employment agreement, employee is obliged to keep
confidential information of the employer confidential)
 Law of Obligations (Borçlar Hukuku)
• Obligations are divided into categories according to their
origin.
• These three causes of obligation are:
1) Contract: the fullfillment of the expectations engendered by
binding promise (Sözleşme)
A contract is a voluntary agreement between the parties.
2) Unjust enrichment (restitution) (unjust enrichments must be
reversed) (sebepsiz zenginleşme)
3) Tort (the compensation of wrongful harm) (Haksız fiil)
 Law of Obligations
Obligations Arising from Tort
Art. 49 TCC Any person who unlawfully causes loss or damage to another,
whether wilfully or negligently, is obliged to provide compensation.
Kusurlu ve hukuka aykırı bir fiille başkasına zarar veren, bu zararı gidermekle
yükümlüdür.
Tort Liability:
§ Obligor (borçlu) :Tortfeasor (person who commits the tort) (fail yani zarar
veren)
§ Obligee (alacaklı) : Injured Party (mağdur yani zarar gören)
§ Performance (edim yani borcun konusu) : Compensation/ recovery of the
damage (tazminat borcu)
Eg. If you cause a car accident, you have to pay for the damage.
 Obligations Arising from Tort (Haksız fiilden
doğan borç ilişkileri)
üA tort is a breach of a duty imposed by law which results in injury to another. When a
breach of a duty causes injury, the party causing the injury is held responsible, and is
required to compensate the injured party.
üA person may commit a tortious act and may be under an obligation to pay for
damages.
A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom,
property or other right of another is bound to compensate him for any damage arising
therefrom.
Idea behind: those who injure others should take responsibility for their actions!
qSome torts may also be crimes, such as assault, battery, wrongful death, fraud, theft
and trespass on property and also form the basis for a lawsuit for damages by the
injured party. This is in scope of criminal law but not in law of obligations!
qCivil vs. Criminal Wrong: A tort is a “civil” wrong, punishable by compensating, or
paying damages to, the injured party, rather than a “criminal” wrong, punishable by
paying a fine to the government and/or being imprisoned.
 What is a Tort?
üEg. You drive your car negligently and knocked me down. You have
committed the tort of negligence. Harm has wrongfully been inflected upon
me and you must compensate me.
üThe aim of the award of compensation is not to fullfill my expectations. It is
to restore me to the position which I was in before the accident occured.
üTort is not a contractual relationship between the obligor and the obligee!
üTort vs. Contract: A tort, with a few well-defined exceptions, does not arise
from a breach of contract or other agreement. Therefore, the duty that is
violated by the tortfeasor (i.e., the “wrongdoer”) must exist as a
matter of law, not as a consequence of any agreement between the
tortfeasor and the injured party.
 Law of Obligations
Obligations Deriving from Unjust Enrichment
TCO Art. 77
A person who has enriched himself without just cause at the expense of another is obliged
to make restitution.
Haklı bir sebep olmaksızın, bir başkasından zenginleşen, bu zenginleşmeyi geri vermekle
yükümlüdür.
Eg. A pays B 1000 TL in settlement of a debt. If he subsequently forgets about this payment
and makes a second payment for the same debt, B is unjustly enriched. A may demand
that B returns the second payment.
Eg. Student S finds student P's copy card on the floor in the law library. S uses the card to
make 50 photocopies.
 Law of Obligations
Obligations Deriving from Unjust Enrichment
Requirements:
1) Enrichment (zenginleşme)
2) At the expense of another (fakirleşme)
3) Without a cause (benefits obtained for invalid reason) (haksız bir sebep)
4) Causal connection between enrichment and expense (nedensellik bağı)
Eg. A person who has satisfied a non-existent debt by mistake
üThe main idea of unjust enrichment is, no one shall be enriched by the assets of
someone else if there is no reason for the enrichment.
§ Obligor (borçlu) : recipient (the one who has enriched himself) (zenginleşen)
§ Obligee (alacaklı) : person who has lost his property or assets (fakirleşen)
§ Performance (edim yani borcun konusu) : restitution (iade borcu)
 Law of Obligations
Obligations Deriving from Contract
Art. 207 TCC
A contract of sale is a contract whereby the seller undertakes to deliver the item sold
and transfer ownership of it to the buyer in return for the sale price, which the buyer
undertakes to pay to the seller.
TBK m. 207 ‘Satış sözleşmesi, satıcının, satılanın zilyetlik ve mülkiyetini alıcıya devretme,
alıcının ise buna karşılık bir bedel ödeme borcunu üstlendiği sözleşmedir.’
§ Obligor (borçlu) : Seller and buyer
§ Obligee (alacaklı) : Seller and buyer
§ Performances (edim yani borcun konusu) : transfer the ownership of the property and
pay the sale price
 Law of Obligations
Obligations Deriving from Contract
TCO Art. 1
The conclusion of a contract requires a mutual expression of intent
by the parties.
Sözleşme, tarafların iradelerini karşılıklı ve birbirine uygun olarak açıklamalarıyla
kurulur.
• A contract is based upon the agreement of the parties.
• Contract is a legal transaction which may be defined as an exchange of consents by
two or more persons.
Eg. A sells his house and B would like to buy it. The contract is an agreement for the
sale of immovable property as they (seller and buyer) mutually agree on the transfer
the possession of the property and the price.
 Law of Obligations
Obligations Deriving from Contract
• Eg. A promises to sell his computer to B for 1000 TL and B agrees to buy
it.
A’s obligation: to transfer the ownership of the computer to B.
B’s obligation: to pay 1000 TL in return.
This voluntary agreement between them will be enforced by a court if
one fails to fulfill his duty.
What is a contract?
A. Conclusion of the contract
I. Mutual expression of intent
In general
Art. 1 TCO
The conclusion of a contract requires a mutual expression of intent by
the parties.
The expression of intent may be express or implied.
Sözleşmenin kurulması
I. İrade açıklaması
Genel olarak
TBK MADDE 1- Sözleşme, tarafların iradelerini karşılıklı ve birbirine
uygun olarak açıklamalarıyla kurulur.
İrade açıklaması, açık veya örtülü olabilir.
 What is a contract?
TCO Art. 2 Where the parties have agreed on all the essential terms, it is
presumed that the contract will be binding notwithstanding any reservation
secondary terms.
In the event of failure to reach agreement on such secondary terms,the court
must determine them with due regard to the nature of the transaction.
TBK m. 2 Taraflar sözleşmenin esaslı noktalarında uyuşmuşlarsa, ikinci
derecedeki noktalar üzerinde durulmamış olsa bile, sözleşme kurulmuş sayılır.
İkinci derecedeki noktalarda uyuşulamazsa hâkim, uyuşmazlığı işin özelliğine
bakarak karara bağlar.
 What is a contract?
• Elements necessary to create a valid contract are:
üMutual consent of the parties (offer and acceptance)
(Tarafların karşılıklı ve birbirine uygun irade açıklaması yani icap ve kabul)
üThe consent must be free of any defects such as error, fraud, wilful deception
or threat (duress).
(Tarafların birbirine uygun irade açıklaması, hata, hile, korkutma gibi sakatlıklara
uğramamış olmalı)
Principle of Freedom of contract (Sözleşme
Özgürlüğü İlkesi)
Freedom of Contract TCO Art. 26 The terms of a contract may be freely
determined within the limits of the law.
Sözleşme özgürlüğü TBK m. 26 Taraflar, bir sözleşmenin içeriğini kanunda
öngörülen sınırlar içinde özgürce belirleyebilirler.
qIdea behind: Party Autonomy
Contracts are based on mutual agreement and free choice. Therefore,
contracts shall not be subjected to an external control such as
governmental interference.
 Principle of Freedom of contract (Sözleşme
Özgürlüğü İlkesi)
Nullity TCO Art. 26
A contract is void if its terms are contradictory to mandatory rules, or if they
contravene public policy, moralty or personality rights or if they are impossible.
However, where the defect pertains only to certain terms of a contract, those terms
alone are void unless there is cause to assume that the contract would not have been
concluded without them.
Kesin Hükümsüzlük
TBK m. 27 Kanunun emredici hükümlerine, ahlaka, kamu düzenine, kişilik haklarına
aykırı veya konusu imkânsız olan sözleşmeler kesin olarak hükümsüzdür.
Sözleşmenin içerdiği hükümlerden bir kısmının hükümsüz olması, diğerlerinin
geçerliliğini etkilemez. Ancak, bu hükümler olmaksızın sözleşmenin yapılmayacağı
açıkça anlaşılırsa, sözleşmenin tamamı kesin olarak hükümsüz olur.
qLimitations: To balance the inequality between parties
 Principle of Freedom of contract (Sözleşme
Özgürlüğü İlkesi)
1. Freedom to conclude or not to conclude a contract and freedom of choice
of the partner.
There is no obligation to enter a contract unless a special legal provision
prescribes the formation of a contract (as may be the case for public
transportation and other public services or in the context of
antitrust/competition law).
The people can decide freely to whom they will offer their goods and services
and by whom they wish to be supplied.
Principle of Freedom of contract
2. Freedom to establish the content of the contractual
provisions.
Either party may at free discretion establish the
conditions of the contract. This refers not only to the
possibility of the parties determining their mutual
obligations but also to the consequences of non-
performance (e.g. conditions and effects of breach,etc.).
• Consumer contracts?
• Employment contracts?
 Principle of Freedom of contract
TCO Art. 26 Freedom of Contract
The terms of a contract may be freely determined within the limits of the law.
Sözleşme özgürlüğü
TBK MADDE 26- Taraflar, bir sözleşmenin içeriğini kanunda öngörülen sınırlar içinde
özgürce belirleyebilirler.
Exception of Freedom of Contract:
TCO Art. 27
A contract is void if its terms contravene the mandatory rules, moralty, public order,
personality rights or are impossible.
TBK MADDE 27- Kanunun emredici hükümlerine, ahlaka, kamu düzenine, kişilik haklarına
aykırı veya konusu imkânsız olan sözleşmeler kesin olarak hükümsüzdür.
 Form-requirement and Form Freedom (Şekil
Şartı/Şekil serbestisi)
üAs a general rule, the formation of a contract does not presuppose formalities of
any kind.
üSince the legal effect (the formation of one or more obligations) of a contract
only concerns the involved parties themselves, it is not necessary to put their
intentions in writing and to publish them to the outside world.
 Form-requirement and Form Freedom (Şekil
Şartı/Şekil serbestisi)
Art. 12 TCO
1 The validity of a contract is not subject to compliance with any particular form unless a particular
form is prescribed by law.
2 In the absence of any provision to the contrary on the significance and effect of formal requirements
prescribed by law, the contract is valid only if such requirements are satisfied.
Sözleşmelerin şekli
Genel kural
TBK MADDE 12- Sözleşmelerin geçerliliği, kanunda aksi öngörülmedikçe, hiçbir şekle bağlı değildir.
Kanunda sözleşmeler için öngörülen şekil, kural olarak geçerlilik şeklidir. Öngörülen şekle uyulmaksızın
kurulan sözleşmeler hüküm doğurmaz.
• According to procedural law, written evidence for the proof of contracts is required, if amount
involved in the contract is over 2500 TL. These kinds of contracts cannot be proven by wittnesses.
 Form-requirement and Form Freedom (Şekil
Şartı/Şekil serbestisi)
üWith a few specific exceptions, contracts may be concluded orally or even without any
verbal expression of assent, for instance, by actions implying (showing the intention to
enter into a contract (Art. 1 TCO). But problems may arise when parties disagree
whether a binding agreement has been brought about already or what actually has been
agreed upon. Therefore, after parties verbally have come to terms on their agreement,
they usually fix it in a written contract so that they both are able to prove its existence
and content.
qEg. the transfer of movable property requires only the mutual intention of the parties to
transfer property (and, in addition, the physical transfer of the goods, but NOT a written
form!
qEg. A rent contract for movable or immovable property may also be made orally.
 Form-requirement and Form Freedom (Şekil
Şartı/Şekil serbestisi)
üExceptions of form freedom:
These contracts are for example only valid, if they are done in written form:
qSales contract/ the transfer of for immovable property (taşınmaz mülkiyetinin devri) requires
written form (official registration) property register
Art. 237 TCO Form Requirement
A contract for the sale of immovable property is valid only if done as a public deed.
Şekil TBK MADDE 237- Taşınmaz satışının geçerli olabilmesi için, sözleşmenin resmî şekilde
düzenlenmesi şarttır.
qContract of surety (kefalet sözleşmesi)
Art. 583 TCO Form
The contract of surety is valid only where the surety makes a written declaration and indicates in
the surety bond the maximum amount for which he is liable and the date of the surety.
Şekil TBK MADDE 583- Kefalet sözleşmesi, yazılı şekilde yapılmadıkça ve kefilin sorumlu olacağı
azamî miktar ile kefalet tarihi belirtilmedikçe geçerli olmaz.