Introduction to Private Law

In continental European countries the commonly accepted classification of law rests on the
traditional distinction between public law (kamu hukuku) and private law (özel hukuk).

In principle, public law involves the rules which regulate the relations between private
individuals and the State, as well as the structure and operation of Government departments.
There is a hierarchical structure in this field of law. The State is always in a superior position
in its relations with individuals.

Private law regulates the relationship between private persons. It is concerned with relations
and conflicts among individuals as private persons and private law assumes that its subjects
are equal before the law despite the obvious inequalities in reality. The subjects of private law
may be natural or legal persons. In this manner, even the State can be subject to private law
rules as it is a legal person and in relations subject to private law even the State is equal to the
other persons. As a result, the principle of “equality in acquiring private rights” in private law
applies to all persons including the State.

For example, the State may come under the regime of private law in matters such as leasing a
building or purchasing supplies.

In the field of private law, legal obligations are usually created by bilateral acts such as
contracts. This means that in the field of private law nobody is, as a rule, entitled to issue
orders which are binding on others (in contrast to the field of public law), unless there is a
proposal between the parties of a legal relation that entitles one of the parties to do so.

Branches of Private Law (Özel Hukukun Dalları)

The main branches of private law can be stated as civil law (medeni hukuk), commercial law
(ticaret hukuku) and international private law (milletlerarası özel hukuk). There are also other
categories of law that fall within the area of private law such as the laws regarding copyright,
patents, intellectual property (fikri ve sınai mülkiyet hukuku), labor law (iş hukuku) and
consumer law (tüketici hukuku).

Civil Law (Medeni Hukuk)

The term “civil law” is derived from the Roman law term of “ius civile” which was the law
applicable to Roman citizens, i.e. to the people of the City of Rome (civitas)

Civil law can be specified as the most important branch of private law as it regulates a wide
range of legal transactions between the persons. Legal rules related to personality, marriage,
family relations, property rights, succession and obligations are all parts of civil law.

Civil law is divided into five sub-branches: Law of Persons (Kişiler Hukuku), Family Law
(Aile Hukuku), Law of Succession (Inheritance) (Miras Hukuku), Law of Property (Eşya
Hukuku) and Law of Obligations (Borçlar Hukuku).
Civil law has been regulated by the Civil Code (Medeni Kanun) and the Code of Obligations
(Borçlar Kanunu) which were adopted from Switzerland in 1926. In 2002 an entirely new
version of the Civil Code and in 2012 a new version of the Code of Obligations were enacted.

The Turkish Civil Code consists of an Introduction Chapter and four Books. Those books are
“Law of Persons”, “Family Law”, “Law of Succession (Inheritance)” and Law of Property.

SUB-BRANCHES OF CIVIL LAW

Introduction - The Preliminary Chapter of the Civil Code

Some of the basic concepts of the civil law as well as the private law can be found in the
preliminary (introduction) chapter of Turkish Civil Code. The provisions taken place in this
part are intended to be the general rules applicable to all legal relations and for this reason
they are also called general provisions. General provisions are the general principles which
are applicable to all of the branches of private law (Law of Obligations, Commercial Law,
Labor Law etc.)

Some of the important rules in this section are given below:

Art. 1 is about application of the law.

1.The law applies according to its wording or interpretation to all legal questions for which it
contains a provision.

2. In the absence of a provision, the judge shall decide in accordance with customary law
and, in the absence of customary law, in accordance with the rule that it would make as
legislator.

(The order of the application of the legal rules: written sources (rules) have priority for
application which are called preliminary sources (birincil kaynaklar). Customary rules which
are called secondary sources (ikincil/tali kaynaklar) are applicable at the second degree.
Lastly if there is no rule providing a solution to the dispute, judge can create law which is also
called gap-filling and judge-made law can be applied to the dispute.

These sources of law are all together called primary sources of law (asli kaynaklar)

3. In doing so, the judge shall follow established doctrine and case law.

These are called auxiliary sources (yardımcı kaynaklar)

Art. 2 is about acting in good faith (bona fides).

1 Every person must act in good faith in the exercise of his or her rights and in the
performance of his or her obligations.

2 The manifest abuse of a right is not protected by law.

Acting in good faith which is also called bona fides is about using rights and fulfilling the
obligations. Every person must act honestly and reasonably when she uses her rights and
fulfills her obligations.

A person who is bound to perform an obligation must also act in good faith towards the other
party of the obligation. Otherwise the creditor of the obligation has the right to refuse the
performance and refusing the performance will not be deemed as breach of an obligation.

The sanctions (yaptırımlar) of abusing of rights are generally exercised by means of

withdrawal of the authority (such as revocation of parental responsibility) or restitution (such
as restoration of legally protected values which were violated) or ineffectiveness of the right.

Art. 3 is about acquiring private rights.

1. Where the law makes a legal effect conditional on the good faith of a person, there shall be
a presumption of good faith.

2. No person may invoke the presumption of good faith if he or she has failed exercise the
diligence required by the circumstances.

The good faith regulated in Art. 3 is also called subjective good faith. It is about being
unaware of a legal situation that prevents to acquire a right. It is also stated as “tolerable
unawareness”. For example, one can not acquire the property of a stolen good but in some
specific situations if the buyer does not know that the good is steal (n.) when she buys it, the
buyer can acquire the property of the good (e.g. money and bearer instruments) as she is in
good faith.

Art. 4 is about judicial discretion.

Where the law confers discretion on the judge or makes reference to an assessment of the
circumstances or to good cause, the court must reach its decision in accordance with the
principles of justice and equity.

Judicial discretion is the privilege or freedom of the judge to decide what should be the
solution of a particular conflict.

In order to enable the law practice suitable to the different conditions of several cases, Civil
Code has granted the judge the authority of discretion. In one way it is a privilege of the judge
and in other way it is an obligation (duty) of her to solve a case.

It ensures the “substantial justice” which is the ideal solution for a concrete case.

Judge can only use this authority when she is clearly authorized to do so in an article of
law/code. Also she has to give her decision in the limits of justice and equity.

Art. 6 is about 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.
 I. LAW of PERSONS

“Person” is one of the most important concepts of private law because it is the main subject of
the law. The term “person” is not limited to human beings. It also refers to legal persons
which are the entities created by the function of law but not biology. A corporation, a
foundation or an association are legal persons and thus subjects of private law. So legal
persons and natural persons are persons of law.

What happens when one is subject of law or is defined as a person? She can have rights and
obligations during the continuation of her personality according to law. (can you leave your
estate to your cat as inheritance or can you donate 100.000 TL to your lovely dog?)

For natural persons, personality begins at the moment of birth but its effects start from the
moment of conception as a fetus. Personality ends in the event of death. There are also other
ways of ending the personality which are presumption of death and absence (declaration of
presumed death).

Every person has legal capacity. Accordingly, within the limits of the law, every person has
the same capacity to have rights and obligations. This principle is called the equality and
universality of legal capacity.

Even though every person has legal capacity in an equal manner, they are not equal to create
rights and obligations through their actions. A person must have capacity to act for creating
rights and obligations through her actions.

So a person who has capacity to act has the capacity to create rights and obligations through
her actions. There are some requirements for capacity to act. A person who is of age and is
capable of judgement has the capacity to act. According to Turkish law, the person also
should not be under guardianship.

The conditions of capacity to act

1) The first condition is being major. As a rule, majority starts at the age of 18. One can also
be major by getting married or decision of court (judicial majority). For judicial majority, the
minor who is at least at the age of 15 can be declared as a major by court upon her request
and with the consent of her legal representative. The legal representatives are parent who has
parental responsibility under custody and guardian appointed in the scope of guardianship.

2) The second condition is maturity. Maturity means being capable of judgement.

Art 13.

A person is capable of judgement within the meaning of the law if he or she does not lack the capacity to act
rationally by virtue of being under age or because of a mental disability, mental disorder, intoxication or similar
circumstances.

3) The last condition is not being under guardianship.

*** For natural persons kinship can be important and due to this fact there are some
regulations about kinship in the civil code. Basically kindship can be divided into two groups
which are kinship by blood and kinship by marriage. There is also one more way for creating
a kinship which is called artificial kinship, via adoption (evlat edinme)

*** A person’s domicile is the place in which he or she resides with the intention of settling;
residence for the purpose of education or the accommodation of a person in an educative
institution or care home, a hospital or a penal institution does not by itself establish domicile.
They may be habitual residence.

II. FAMILY LAW

Family law regulates the relationships related to the family which are peculiar to natural
persons. The starting point of the term “family” is spouses: husband and wife. So it may well
be said that marriage is the core part of family for law as it is accepted in social life.

Because of that fact, second book of civil code starts with engagement. Engagement is
mutual promises of two parties to marry. The conclusion of these mutual promises is also
called betrothal. Engagement is the first step for marriage.

As it is one of the most important subjects of family law, marriage is regulated in a detailed
manner. Requirements for marriage especially capacity and impediments, annulment of
marriage, divorce and separation, general obligations and effects of marriage and finally
marital property law are the main subjects of marriage.

Marital property regime of participation in acquired property is the statutory marital

property regime. Community of property, separation of property and shared separation of
property which were regulated in the civil code, are the other regimes that spouses can
choose.

Parent-child relations, paternity and custody are the following subjects that follows marriage.

The paternity is formed between child and mother on the birth of the child. Where a child is
born in wedlock, the husband is deemed to be the father.

Adoption and guardianship are the other subjects of family law.

III. LAW of SUCCESSION (INHERITANCE)

Even after the person dies, the law continues to regulate her relationships with the mortal,
material world. In this context, the problem related to the ownership of the property of the
deceased/decedent must be solved.

The law of succession is the body of rules applied to determine who will inherit the property
of the deceased and how the estate will be divided if there is more than one heir.
The collection (the entire sum) of assets, debts and other issues left behind by a decedent is
called estate/heritage in legal terms.

Under Turkish law, the estate of a decedent passes to the heirs. It happens by operation of law
but it can also happen by the testamentary will of the decedent via a testament (will) or
contract of succession. According to this explanation, we can say that the law recognizes two
types of heirs: the statutory heir and the appointed heir.

By the operation of law the estate passes to the statutory heirs who are blood related relatives
and also the spouse of the decedent and if there doesn’t exist any of them it passes to the
State.

Appointed heirs (legatees) are the ones expressly and specifically designated by the decedent
in a will (testament). The Civil Code recognizes that all persons who are capable of judgement
and 15 years old, have testamentary capacity. The person can dispose of her estate at death by
a will prepared during her lifetime. The testator can choose the heirs and the method of
distribution of the estate.

Turkish law imposes some restrictions on freedom of testamentary (mortis causa x inter
vivos) disposition. The rights of some statutory heirs are protected by law through reserved
(compulsory) portions.

IV. LAW of PROPERTY

Property rights constitute one of the central institutions of civil law. The acquisition and loss
of property rights, the content and the limits of rights over movable and immovable things, the
role of possession over things, transfer of property are among the various relations regulated
by law of property.

Ownership

Rights in rem (real rights) are the main subject of law of property and they are divided into
two categories: absolute rights in rem (ownership) and limited rights in rem. Limited rights
are divided into three groups in itself: easements (such as usufruct, right of residence and
building right), real burdens and pledge/mortgage.

According to TCC ownership is handled in two ways: land ownership and chattel ownership.

The object of land ownership is all immovable property. As a rule, the acquisition of land
ownership must be recorded in the land register. In the case of appropriation, inheritance,
compulsory purchase, debt enforcement or court judgment, the acquirer becomes the owner
even before registration in the land register but obtains the power of disposal over the
immovable property only once he or she has been recorded as the owner in the land register.
Chattel ownership relates to movable physical objects and to forces of nature that may be the
subject of legal rights and which do not form part of any immovable property. Transfer of
chattel ownership requires the delivery of possession to the acquirer.

The owner of an object is free to use (usus), enjoy (fructus) and dispose of it (abusus) at will
within the limits of the law.

The owner of an object also has ownership of all its constituent parts. A constituent part is
anything which, according to local custom, is held to be an essential part of an object and
which cannot be detached without destroying, damaging or altering it.

Any disposition affecting an object also applies to its accessories, unless an exception is
made.

Collective Ownership (Co-Ownership/Joint Ownership)

Co-ownership exists where several persons own a share in an object which is physically
undivided.

If several persons who bound together into a community by legal provision or contract own an
object by virtue of that community, they are joint owners and the rights of each joint owner
attach to the whole object.
 V. LAW of OBLIGATIONS

In Switzerland and Turkey, the rules regulating obligations between private persons are
codified in a separate code: the Code of Obligations (Borçlar Kanunu). However, this Code is
regarded as an integral part of the Civil Code. For this reason, in legal studies the law of
obligations is examined as a sub-branch of civil law.

The Code of Obligations consists of two main parts. The first part lays down the general
principles, while the second part provides for specific provisions applicable to various types
of contracts such as sale (satış), exchange (trampa), gift (bağış), lease (kira), loan (ödünç),
mandatum (vekalet) etc.

The main subject of the law of obligations is the obligations which arise from legal
transactions, torts and unjust enrichments.

The parties of an obligation are the creditor and the debtor. Creditor is the one who has the
authority to demand the claim (performance of the obligation) from the debtor. Debtor is
the one who is liable/obliged to perform the obligation to the creditor (Also check
synallagmatic)

SOURCES OF OBLIGATIONS

1) Legal Transactions

The classical example of legal transactions is contract. A contract is an agreement that is

enforceable by law and creates rights and duties between the parties according to their mutual
intent.

The conclusion of a contract requires a mutual expression of intent by the parties. The
expression of intent may be express or implied.

As a rule, a contract does not need to be in a written form for being binding. So contracts are
binding without any special form unless the law provides otherwise. For example, in order to
be binding, a contract to transfer land ownership must be executed as a public deed.

For the conclusion of a contract we need two expressions of intent which must be mutual or
in another saying directed to each other and also matching. Those are offer and acceptance.
Offer and acceptance are the two essential elements of contract formation (conclusion)
process.

Offer is the first binding expression of intent in terms of time, which is declared to the other
party. Acceptance is the second binding expression of intent in terms of time, which indicates
the assent of declarant for the offer. When those two expressions match up (coincide with
each other), the contract is concluded.

The terms of a contract may be freely determined within the limits of the law. This is called
principle of freedom of contract. There are some restrictions to this principle. A contract is
void if its terms are impossible (initial impossibility), unlawful, immoral and also if its
terms are contravening public policy and rights of personal privacy. Such a contract is void
by law.

Also parties must not have any defect in consent (intent) which are error, fraud (dolus) and
duress. A contract concluded under a defect in intent is voidable. If there is an unfair
advantage in a conclusion of a contract, that contract is also voidable.

2) Torts

Any person who unlawfully causes damage to another, whether willfully (intentionally/on
purpose) or negligently, is obliged to provide compensation. The requirements of tort are: an
act against law, damage, causality (adequate causality) and fault.

As a rule, the sanction of a tort is specific performance but today courts give their decision
as monetary compensation instead of specific performance.

The right to claim damages expires two years from the date on which the person suffering
damage became aware of the loss, damage or injury and of the identity of the person liable for
it but in any event ten years after the date on which the harmful conduct took place
(occurred). So, the claims of compensation because of a tortious act cease after a certain
period of time. This time period is called prescription or statute of limitations.

3) Unjust Enrichment

A person who acquires something at the expense of another person without any legal ground
is bound to return it.

The right to claim restitution for unjust enrichment expires two years after the date on which
the person suffering loss learned of her claim and in any event ten years after the date on
which the claim first arose.

EFFECTS of OBLIGATIONS

1) Personal Performance is not Required

A debtor is not obliged to discharge his obligation in person unless so required by the
creditor. According to this rule, personal performance of obligation is not required.

2) Place of Performance

The place of performance is determined by the intention of the parties as stated expressly. If
the parties does not agree on the place of performance and except where otherwise stipulated,
the following principles apply:

i. pecuniary debts must be paid at the place where the creditor is resident at the time of
performance; (creditor’s domicile)
ii. where a specific object is owed, it must be delivered at the place where it was located
when the contract was entered into;
iii. other obligations must be discharged at the place where the debtor was resident at the time
they arose. (generic objects must be discharged at debtor’s domicile)

3) Time of Performance

Where no time of performance is stated in the contract or evident from the nature of the legal
relationship, the obligation may be discharged or called in immediately.

4) The Consequences of Non-Performance of Obligations

Failure to Perform: A debtor who fails to discharge an obligation at all or as required must
compensate the resulting damage unless she can prove that she was not at fault.

Where an obligation is due, the debtor is in default (mora debitoris) as soon as she receives
a notice (formal reminder) from the creditor. Where a deadline for performance of the
obligation has been set by agreement the debtor is automatically in default on expiry of the
deadline. A debtor in default is liable in damages for late performance and even for accidental
damage.

5) Extinction of Obligations

Where a claim ceases to exist by virtue of being satisfied or in some other manner, all
accessory rights such as surety, pledge, interest and penalty are likewise extinguished.

a) Performance of the obligation, b) agreement of the parties, c) novation, d) merger, e)

subsequent impossibility and f) set-off, are the grounds of extinction of obligations.

Prescription is not a reason for extinction of obligation but it has similar effects as extinction.
As a rule, all claims prescribe in ten years from their arising unless otherwise provided by
law.

6) Special Relationships relating to Obligations

i. Debtors become jointly and severally liable for a debt by stating that each of them wishes
to be individually liable for performance of the entire obligation. Without such a statement of
intent, debtors are joint and severally liable only in the cases specified by law.
ii. A contract is conditional if its binding nature is made dependent on the occurrence of an
event that is not certain to happen. There are two types of condition: condition precedent and
condition subsequent.
iii. Parties can agree on a penalty clause (contractual penalty). The penalty is payable even if
the creditor has not suffered any damage. Where the damage suffered exceeds the penalty
amount, the creditor may claim further compensation only if she can prove that the debtor was
at fault.
iv. Assignment of claims: A creditor may assign a claim to which he is entitled to a third
party without the debtor’s consent unless the assignment is forbidden by law or contract or
prevented by the nature of the legal relationship.
Assumption of debt: A person who promises to answer for the debt of another assumes an
obligation to release the debtor from his obligation either by satisfying the creditor or by
taking the debtor’s place with the consent of the creditor.

TYPES OF CONTRACTUAL RELATIONSHIP

The Contract of Sale: 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.

There are two types of sale: Chattel Sale and Sale of Immovable Property. A contract for the
sale of immovable property is valid only if done as a public deed.

Also there are special types of sale such as sale by sample, sale on approval or inspection, sale
in installments and auction which can be compulsory or voluntary

The Contract of Exchange: Contract of exchange is a contract whereby one party undertakes
to deliver an item and transfer ownership of it to the other party in return for delivering and
transferring the ownership of another item by the latter.

Gifts: A gift is any inter vivos (x mortis causa) disposition in which a donor uses his assets to
enrich recipient (donee) without receiving an equivalent consideration.

The Contract of Lease: Lease is a contract in which a landlord or lessor grants a tenant or
lessee the use of an object in exchange for rent.

The Contract of Loan: There are two types of loan;

1) Loan for Use: A loan for use is a contract whereby the lender undertakes to make an object
available free of charge to the borrower for the latter’s use and the borrower undertakes to
return it to him after having made use of it.

2) The Fixed-Term Loan: A fixed-term loan is a contract whereby the lender undertakes to
transfer the ownership of a sum of money or of other fungible goods to the borrower, who in
return undertakes to return objects of the same quantity and quality to him.

The Employment Contract: By means of an individual employment contract, the employee

undertakes to work in the service of the employer for a limited or unlimited period and the
employer undertakes to pay him a salary based on the amount of time he works (time wage)
or the tasks he performs (piece work).

The Contract for Work and Services: A contract for work and services is a contract
whereby the contractor undertakes to carry out work and the customer undertakes to pay him
for that work.

The Contract of Mandate: A contract of mandate is a contract whereby the proxy

undertakes to conduct certain business or provide certain services in accordance with the
terms of the contract. The principal has to pay remuneration where agreed or customary.
The Contract of Bailment: A contract of bailment is a contract in which the bailee
undertakes to take receipt of a chattel entrusted to him by the bailor and to keep it in a safe
place. The bailee may claim remuneration only where this has been expressly stipulated or
was to be expected in the circumstances.

The Contract of Surety: Under a contract of surety, the surety undertakes as against the
creditor of the principal debtor to vouch for performance of the obligation. The contract of
surety is valid only where the surety makes a written declaration and indicates in the surety
bond with her hand writing the maximum amount for which she is liable. The date of surety
also has to be indicated in the surety bond with surety’s hand writing.