Basic Concepts of Law I Week 7-Law of Obligation I PDF

Basic Concepts of Law I Week 7-Law of Obligation I Dr. Bihter Kaytaz Eker Summary of the Previous Week Property Ownership Possession Participation of Several Persons in Ownership Acquisation of Ownership Topics within the scope of Law of Obligations Week I General Provision...

Basic Concepts of Law I Week 7-Law of Obligation I Dr. Bihter Kaytaz Eker Summary of the Previous Week Property Ownership Possession Participation of Several Persons in Ownership Acquisation of Ownership Topics within the scope of Law of Obligations Week I General Provision Special Provision (Classification of Contracts under Special Provisions) Week II Overview of some contracts regulated by Code of Obligations Law of Obligation I-General Provisions Obligation refers to a legal tie that binds a person to do or abstain from doing. Obligations may be divided into three categories, depending on the origin of obligations. Accordingly, an obligation may arise from: 1. A contractual relationship (Articles 1-48 of Code of Obligations) 2. A tortious act (Articles 49-76 of Code of Obligations) 3. Unjust enrichment (Articles 77-82 of Code of Obligations) Law of Obligation I-General Provisions 1. Contracts: A contract is a legal transaction which may be defined as an agreement between two or more parties, either natural or legal persons, to do or to refrain from doing a particular thing, which creates legally enforceable obligations. Parties in contract are “debtor” and “creditor”. Debtor is obliged to deliver goods or a performance while creditor has a right to receive. Because contracts are usually bilateral, both parties have an obligation to deliver and have a right to receive. Law of Obligation I-General Provisions Elements necessary to create a valid contract are: 1. Mutual consent of the parties 2. Capacity to contract 3. Genuineness of assent 4. Legal Cause 5. Legal Subject Matter 6. Form of Contract Law of Obligation I-General Provisions(Elements for a Valid Contract) 1. Mutual consent of the parties (offer and acceptance): A contract requires an exchange of consents between at least two parties. A mutual agreement may be made by an offer on the one side and a clear acceptance of the offer on the other side. An offer is a declaration of intention by one party to express his/her willingness to enter into a contract. On the other hand, acceptance is a declaration of intention to agree to the terms of the offer given by the other party. 2. Capacity to Contract: Parties must have capacity to contract. However, not every person has the capacity to enter into legal transactions. Incapacity may be in cases where a person has a mental disability or is under the age of majority. A contract of high value under which one of the parties is a minor or a mentally disabled person is null (example: buying/selling a house). These persons can enter into such contractual relationship with the consent of their guardians. However, these persons can validly enter into contracts of low value, such as buying a bottle of water or snack. Law of Obligation I-General Provisions(Elements for a Valid Contract) 3. Genuineness of Assent: Genuineness of assents requires that any party entering into contract must declare his/her willingness to conclude a contract voluntarily, without being under the effect of misconception or fraud. If a party concludes a contract due to a mistake, fraud or coercion(duress), then s/he will not be bound by the contract. Mistake exists in cases where the expression is unintentionally inconsistent with the real intention. Mistakes may be material or immaterial. Immaterial mistake relates to the motive of the party for entering into the contract. This type of mistake does not give a right to cancel the contract. (Example: A contract which is concluded with the expectation of a government decree which will raise prices will be valid even though such decree is not issued and expectation as to the rise in prices is not met). Law of Obligation I-General Provisions(Elements for a Valid Contract) Material mistake may be a: - mistake in relation to the identity of subject matter (Example: Party believes that s/he hires warehouse but indeed hires a shop); - mistake in relation to the identity of parties, i.e. contracting with another person than intended (Example: The contractor believes s/he is contracting with A, but in reality with B); - mistake in relation to the nature of transaction, i.e. entering into a contract other than the one intended (Example: Someone wants to purchase a car but the contract is for leasing); - mistake in relation to the quantity, i.e contracting for a substantially greater or smaller quantity than intended. Material mistakes grant the mistaken party a right to cancel the contract. If the mistake is caused by her/his own negligence, s/he will be liable for any damages that the other party would suffer because of termination. The mistaken party must cancel it within 1 year from learning about the mistake. If not, then the contract will become valid. Besides, if the other party amends the contract to conform it to the intention of the mistaken party, the contract will be valid. Law of Obligation I-General Provisions(Elements for a Valid Contract) Fraud is an intentional misstatement of facts relating to the contract by a party who seeks to obtain an unfair advantage over the other party. This may occur by word or conduct, comprises misleading information, false allegation, concealment of facts which would affect the decision of the other party as to whether or not to conclude a contract. The party who concludes a contract under the effect of fraud can cancel the contract within 1 year from learning fraud and can also demand compensation for any damages. If a party enters into a contract because of duress by the other party, coercion makes a contract voidable for 1 year from the cease of the coercion. Law of Obligation I-General Provisions(Elements for a Valid Contract) 4. Legal Cause: Turkish law requires all contract to have a legal ground. 5. Legal Subject Matter: Legality of subject matter is another essential element required for a valid contract. Freedom of contract, which means that a person is free to choose the type and the subjects and terms and conditions of contract, is the general rule in Turkish law. However, such freedom is within the limits set by law. A contract, which is in violation of an imperative rule, public order, personal rights(e.g. a labour contract for the entire life of one party), or immoral(e.g. contracts for the sale of illegal drugs, contracts to bribe a judge ) or impossible (a contract to sell a painting of a famous painter which is burned and does not exist in fact), will be null. Either party may claim nullity and judge must examine the validity of the content of a contract ex officio. Law of Obligation I-General Provisions(Elements for a Valid Contract) 6. Form of Contract: Due to the freedom of contract principle, if there is no rule in any code specifying a certain form of a contract, the contract will be valid in any form (either oral or written). If contract does not comply with the form agreed by the parties on voluntary basis, this may be considered as invalidating the contract, or as an amendment or a new contract. However, if contracts for which the Code specifies a certain form do not comply with the legal form requirement, they will be null and void. Law of Obligation I-General Provisions 2. Torts: Tort originates from an obligation imposed by law for persons with a wrongful act, which results in injury on another person. The person responsible for the tortious act must compensate the injured party for damages suffered. The court will determine the compensation on the basis of damage, the circumstances of the case and the degree of fault. In Turkish Law of Obligation, conditions for tortious liability are defined as follows: 1. Act against law: The tortious act must be against law, including all types of regulations. 2. Damage: The damage for which a tortious liability will arise may be material or immaterial. 3. Causal connection: There must be a causal connection between the act and damage. It will be determined according to the normal rules of life. Accordingly, if an act has the capacity to cause such damage, it is presumed that there is a causal connection then. 4. An intentional act or negligence: A person cannot be negligent or act intentionally unless s/he has legal capacity. Then, minors and mentally disabled persons are not liable for their wrongful acts. However, because limiting liability to cases where there is intention or negligence may cause unjust results, in some cases persons may be liable even in the absence of an intentional act or negligence (e.g. a landlord’s liability for damage caused by defective design; employer liability for damages caused by employees in the course of performing the duties unless proving that s/he has taken all measures to prevent such damage). Law of Obligation I-General Provisions 3. Unjust Enrichment: Unjust enrichment is that a person profits at expense of another without any legal ground. Accordingly, conditions of unjust enrichment are:  Enrichment of one party  Decrease of the property of the other party  Enrichment without a legal ground. The unjust enriched person is obliged by law to restitute the other party for the reasonable value of goods, services, or benefits that have been received and retained unjustly. The obligation of restitution is determined according to the value of enrichment. Law of Obligation I-General Provisions Turkish Code of Obligation rejects the concept of unjust enrichment in following cases:  an execution which is performed for a moral obligation or duty(e.g. Expenses which parent has borne of for his/her child);  an execution which is performed for a purpose of contrary to good morals (money promised to a murderer);  debts executed after the lapse of time;  payment of debt by mistake. Law of Obligation I-Special Provisions Special provisions cover various special types of contracts, such as contract of sale, lease agreement, employment contract, loan agreement, contract for work and services and agency contracts. You may find rules on creation, performance, non-performance and extinction of obligations in this part of the Law. Contracts regulated by special provisions may be classified in two groups: 1. Contracts by their subject and purpose (a). Contract of Sale: It is a contract whereby one party(the seller) commits to deliver an item(movable property or immovable property) and transfer its ownership to the other party(the buyer) in return for the price agreed upon, simultaneously unless the contract or customs stipulate differently. As a general rule, risk and benefit of the object will pass to the buyer upon the conclusion of the contract. (b). Barter Contract: It is a contract for an immediate exchange of goods or services, without the use of money or other means of exchange. (c). Other types of contracts: Not all contracts transfer ownership of an item. Accordingly, contracts may also be in relation to rental, lease, loan of an object for use or for consume, bailment, safekeeping, guarantee etc. 2. Contracts that are not regulated in the Code (a). Combined contracts: Combine contracts are formed by integrating different type of contracts by consensus of the parties. (b). Mixed contracts: Mixed contracts are formed by integrating elements of contract that are regulated in the Code into contracts not regulated in the Code. Questions to Discuss What are the elements of the concept of possession? Discuss about the acquisition of possession. What is the purpose of Land Registry? What are the principles that govern the land registration? What are the types of ownership? Discuss them in detail. Discuss about how ones can acquire the ownership of a property. Word List Code of Obligations: Borçlar Rent: kira Acceptance: kabul Hukuku General Principles: genel Tortious Act: haksız Fiil Legal transaction: hukuki işlem hükümler Special Provisions: özel hükümler Unjust Enrichment: sebepsiz Coercion(duress): ikrah, korkutma zenginleşme Contract: sözleşme Debtor: borçlu Mistake:Hata Sale of Goods: satım Creditor: alacaklı Fraud: hile Gifts: bağış, hediye Bilateral contract: iki taraflı Imperative(obligatory) sözleşme provisions: emredici hükümler Loans: ödünç Mutual consent : karşılıklı rıza Public order (policy): kamu düzeni Agency: vekalet Offer: icap Personal rights: Şahsi haklar, kişilik hakları Word List Immoral contract: ahlaka aykırı Lapse of time: zamanaşımı, hak Immovable property: Taşınmaz sözleşme düşürücü süre mal ex officio: re’sen Contract of sale: Satım sözleşmesi Barter contract: mal değişim sözleşmesi Bribe: rüşvet vermek Lease contract: kira sözleşmesi Bailment contract: kefalet sözleşmesi Binding: bağlayıcı Contract of Employment: Hizmet Combined contracts: Birleşik sözleşmesi sözleşme Tort: haksız fiil Contracts for work and services: Mixed contracts: karma sözleşme Eser sözleşmesi Causal connection: illiyet bağı Seller: satıcı Negligence: ihmal, kusur Buyer: alıcı Moral obligation: ahlaki Movable property: Taşınır mal yükümlülük, manevi borç Basic Concepts of Law I Week 3-Family Law I Dr. Bihter KAYTAZ EKER Summary of the Previous Week We reviewed the Book I of Turkish Civil Code(TCC)-Law of Persons and analysed the titles as follows: The term «persons» Beginning and End of Personality Ability to be Subject of the Rights and Obligations Capacity to Act Topics we will discuss today are: The term «family» Relationships falling within the scope of Family Law Engagement Marriage The Term «Family» Universal Declaration of Human Rights (Article 16): «The family is the natural and fundamental group unit of society and is entitled to protection by society and the State». The Term «Family» Turkish Constitution (Article 41): “the family is the fundamental unit of Turkish society” and highlights the significance of family. Relationships that are dealt with by Family Law Family Law consists of Articles 118-494 of the second book of Turkish Civil Code(TCC) and regulates the relationships among persons, such as - engagement, - marriage, - divorce, - paternity, - parent-child relations, - child custody, - adoption, - guardianship. Family Law-Engagement Engagement is a mutual agreement to marry between two persons from different genders (Article 118 of TCC). However, engagement, which is a promise to marry, is not a mandatory step before marriage. “It is general view that the engagement has a contractual nature. The parties express their willingness to engage. This expression is usually made orally and symbolized by the exchange of rings.” (Ansay and Wallace) Engagement is not an enforceable agreement. It does not grant one party cause of action to oblige the other to marry. (Article 119 of TCC). Family Law-Engagement(Consequences of Breaking off(breach of) the Engagement) The consequences of breaking off (breach of) an engagement is laid down between Articles 120-122 of Family Law. According to these provisions, we can examine the consequences of breaking off an engagement in two groups:  Compensation (Articles 120-121 of TCC)  Return of Gifts (Article 122 of TCC) Family Law-Engagement (Consequences of Breaking off(breach of) the Engagement: Compensation) Compensation Damages may be recovered against a party who breaks off(breach of) the engagement without good/reasonable cause. Compensation covers material and immaterial damages. Family Law-Engagement (Consequences of Breaking off(breach of) the Engagement: Compensation) 1. Material Compensation(Article 120 of TCC): Material compensation may be demanded from the party who breaks off the engagement without good/reasonable cause. Such compensation is limited to expenses and losses incurred in good faith in contemplation of marriage. Such compensation may be claimed by either innocent party or parents of this party. Family Law-Engagement (Consequences of Breaking off(breach of) the Engagement: Compensation) Examples for expenses that might be claimed as material compensation are: - Renting an apartment - Purchasing furniture - Resignation of an employment etc. Family Law-Engagement (Consequences of Breaking off(breach of) the Engagement: Compensation) 2. Immaterial Compensation(Article 121 of TCC): In case of violation of personal rights because of breaking off an engagement, the party may claim immaterial compensation from faulty party. Family Law-Engagement (Consequences of Breaking off(breach of) the Engagement:Return of Gifts) Return of Gifts (Article 122 of TCC) Gifts which are given with the expectation of a marriage may be reclaimed. The rule is the reciprocal return of the non-customary gifts given by the parties, their parents or those acting like parents during the engagement. If gifts no longer exist, compensation may be demanded under the rules of unjust enrichment. Family Law-Marriage Contents that we will examine for «marriage» are: Capacity to marry Marriage Impediments Formalities of Marriage Matrimonial Property System Family Law-Marriage (Capacity to Marry) Capacity to marry 1. Only persons who have mental capacity to make sound judgements are allowed to marry. In other words, someone with mental illness is not allowed to marry. 2. The person who wishes to marry must prove that s/he is unmarried. In case of a previous marriage, s/he must prove either the death of the spouse or a valid and final divorce. Family Law-Marriage (Capacity to Marry) 3. A person must have completed the minimum age of seventeen to marry. Nonetheless, under certain circumstances, the age of marriage can be reduced to sixteen by court. Conditions for this exception are as follows:  the person to marry must be at least 16 years old,  there must be extraordinary situation and very important reason which makes early marriage reasonable,  the guardians of the person must be heard before decision. Family Law-Marriage(Marriage Impediments) The capacity to marry is not enough for a valid marriage. We must also check whether there is any marriage impediments that are listed in TCC. Marriage impediments may be categorised as follows: 1. Absolute Marriage Impediments 2. Non-absolute Marriage Impediments Family Law-Marriage(Marriage Impediments) Absolute Marriage Impediments are: 1. Marriage with certain relatives(Article 129 of TCC) 2. Existing Marriage (Articles 130-131 of TCC) 3. Mental condition (Article 133 of TCC) Non-absolute Marriage Impediments are: 1. Waiting period (period of gestation)(Article 132 of TCC) 2. Certain Sicknesses (Article 123 of the Law of the General Hygiene) Family Law-Marriage(Absolute Marriage Impediments) 1. Marriage with certain relatives: According to Article 129 of TCC, the marriage is prohibited between certain persons, namely 1. between ascendants and descendants, siblings, uncles/aunts and nephew/nieces, 2. with descendants of a former spouse, 3. in case of an adoption, between - adopter and adoptees and descendants of an adoptee, - adoptee and ascendants of adopter - adoptee and the former spouse of an adopter, or - adopter and the former spouse of an adoptee. Family Law-Marriage(Absolute Marriage Impediments) 2. Existing marriage: A second marriage can happen if only first marriage is terminated. According to Article 130, a person who has been married before must prove that the previous marriage has been terminated. Any marriage contracted in violation of this impediment will be null and void. 3. Mental condition: According to Article 133 of the TCC, a person with a mental condition can marry only if there is a proof that the mental condition does not impede to get married. Any marriage contracted in violation of this impediment will be null and void. Family Law-Marriage(Non-absolute Marriage Impediments) 1. Waiting period: Married women whose marriage has been dissolved cannot marry before expiration of 300 days from the date of the end of marriage, or if she is pregnant, until giving birth (Article 132). Women can also get permission to marry if she proves that she is not pregnant or if she will marry to same person in her previous marriage. If a marriage is contracted in violation of this provision, such marriage will be valid but voidable upon request. 2. Certain sicknesses (Article 123 of the Law of the General Hygiene) Family Law-Marriage(Formalities of Marriage) Formalities of Marriage 1. Submission of some documents by the applicants: The applicants must apply in person and together, to Marriage Office at the place where one of them is resident, and submit their birth certificates, passport size photos, health reports, and proof of consent of their guardians in case of limited capacity. 2. Inquiry by the marriage officer if marriage impediments exist will be the next step. Family Law-Marriage (Formalities of Marriage) 3. If there is no impediment, then the marriage may be performed or a certificate of eligibility for marriage may be issued to enable the parties to request the celebration of marriage within 6 months without repeating the preliminary formalities. 4. A marriage can be contracted in front of an authorized marriage officer. A marriage officer may be mayor or persons or persons authorized by him for the celebration of marriage or the head of the village. If the marriage is performed in abroad, Turkish consuls are authorized to celebrate the marriages of Turkish citizens. Family Law-Marriage(Formalities of Marriage) 5. A marriage may be contracted validly in the presence of two witnesses, with the power of discernment. 6. Both bride and groom must be present in person at the same time to declare their intention to marry. 7. The marriage officer issues a certificate of marriage. And, the marriage is registered in the status of the couple. Family Law-Marriage (Matrimonial Property System) Matrimonial Property System: The regime of “participation in acquired property”, the regime of “Separation of Properties”, the regime of “Shared Separation of Properties” and the regime of “Community of Properties”. Family Law-Marriage(Matrimonial Property System) Even though husband and wife are free to regulate their pecuniary relations during the marriage within the limits of law, by a notarized agreement either before or after the marriage, not many couples concludes such agreement. If the spouses have not chosen one of the listed regimes, the regime that will apply to them will be “participation in acquired property”. Under the system “participation in acquired property”, there are two kinds of properties: acquired properties and personal properties. Family Law-Marriage(Matrimonial Property System) Personal property is the property that belongs only to one spouse. The assets that may be considered as personal property in Turkish Civil Code are :  Property that one spouse owned before the marriage,  Gifts received by one spouse before or during the marriage,  Inheritances that received before or during the marriage,  Property acquired by one spouse using separate property assets.  The acquired property is the value of assets that each spouse has obtained by giving the counter value of the property during the marriage period. Family Law-Marriage(Matrimonial Property System) In case of divorce, each spouse retains his/her property and has right to one half of the acquisitions of the other. Ending of the regime: Matrimonial regimes end with the death of one of the spouses or the acceptance of another regime (Article 225). Questions to discuss: What do you understand from the term “persons”? How about animals and things? Do we accept them as persons in law? When does a natural persons’ personality begin and end? Discuss them in detail. What are the results of the declaration of absentee, in terms of marriage and the property? Why the beginning and end of personality is important? In other words, what is the effect of the beginning and end of personality? Define the “capacity to act” and discuss the types of the “capacity to act”. Word List Engagement: nişanlanma Break off an engagement: nişanı Matrimonial property system: atmak, nişanı bozmak mal rejimi Marriage: evlenme Compensation: Tazminat Divorce: boşanma Divorce: boşanma Material compensation: Maddi Absolute Marriage Impediments: tazminat kesin evlenme engelleri Adoption: evlat edinme Immaterial compensation: Ascendants: üstsoy Manevi tazminat Guardianship: velayet Return of gifts: hediyelerin iadesi Descendants: altsoy, füru Cause of action: dava hakkı Unjust enrichment: sebepsiz Siblings: kardeşler zenginleşme Good/reasonable cause: hukuki Capacity to marry: evlenme Adoption: evlat edinme geçerli sebep ehliyeti Termination without Marriage Impediments: evlenme Adopter: evlat edinen good/reasonable cause: haklı engelleri neden olmaksızın sona erdirme Word List Adoptees: evlat edinilen Witness: şahit The regime of “Shared Separation of Properties: paylaşmalı mal ayrılığı rejimi The former spouse: eski eş Bride: gelin The regime of “Community of Properties: mal birliği rejimi Null and void: kesin olarak Groom: damat System of participation in hükümsüz acquired properties: Edinilmiş mallara katılma rejimi Waiting period: bekleme süresi Intention to marry: evlenme Acquired properties: edinilmiş niyeti mallar Violation: ihlal Issue a certificate of marriage: Personal properties: kişisel mallar evlenme cüzdanı düzenlemek Formalities of Marriage: Consanguinity: kan hısımlığı Asset: mal varlığı evlenmenin şekli şartları Birth certificate: doğum belgesi Matrimonial regime: mal rejimi Bar: Engel Marriage officer: evlendirme The regime of “Separation of Pecuniary: maddi, parayla ilgili, memuru Properties”: mal ayrılığı rejimi parasal Basic Concepts of Law I Week 6-Law of Property Dr. Bihter Kaytaz Eker Summary of the Previous Week Types of succession Types of testate succession Capacity to execute a will Forms of will Intestate successors Topics we will discuss today are: Property Ownership Posession Participation of Several Persons in Ownership Acquisation of Ownership Law of Property Classification of Rights in Civil Law Real Rights Personal Rights (rights in rem) Law of Property-Property Meanings of the «property» the thing(eşya) subject to real rights ownership” (mülkiyet) Clasification of the property Movable property & Immovable Property Tangible property & Intangible Property Law of Property-Ownership the most extensive real right over the property Ownership «is a legal relationship between persons and things which gives persons control over things. It may be broadly defined as the right of a person to possess, use, enjoy, and dispose of a thing.» (Ansay and Wallace) Article 683 of TCC: “The owner of property has the right, within the limits of law, to enjoy and dispose of it at will. He/she has the right to demand it back from anyone who wrongfully possesses it through legal action (rei vindicatio) and to take measures to prevent any unlawful interference with the use and enjoyment of the property.” (Aybay) Law of Property-Ownership Two implications of the statement under the Article 683 of TCC Positive aspect (Article 35 of the Turkish Constitution) Examples of limitations on the absolute freedom of ownership: land is subject to taxation, immovable property is subject to expropriation, the owners of neighboring land have rights of passage Negative aspect Ownership and Possession To determine the owner of a particular piece of property is not always easy. A person may rent his house to another or he may lend his tape recorder for a couple of days. In such cases third persons may think that the tenant or the person who has borrowed the recorder are its real owners, since such persons have physical control, that is to say possession, of these properties. (Ansay and Wallace) A close relationship between ownership and possession Article 983 of TCC: Possession is the evidence of ownership. Article 763 of TCC: Ownership of a movable property might be transferred by transfer of possession It is possible that possession may lawfully be acquired, and yet not accompanied by ownership. (Ansay and Wallace) Law of Property-Posession Two Elements of Possession  Physical control  Intent Acquisition of Possession Movable property: Possession may be acquired by the unilateral act of a person. If a person picks strawberries in the forest or takes a branch of a tree, he acquires possession of the strawberries or the branch. The normal way of acquiring possession is to obtain it from the former possessor with his consent. (Ansay and Wallace) Immovable property: Possession of immovable properties may be acquired by means of registration in a Land Registry kept by the State. Law of Property-Land Registry Land Registry: “A Land Registry has been established for the purpose of evidencing the transfer of possession and ownership of real property as well as rights such as mortgages. Such registry is also essential to the security of ownership in real property in that it permits the establishment of clear title as a matter of record.” (Ansay and Wallace) The state keeps the Land Registries in accordance with the Regulation of Land Registry dated 17 August 2013. Law of Property-Principles of Land Registration Princles that govern the land registration are as follows: No real right in immovable property may be acquired without registration of such right (Article 705 TCC) Causality Principle: Registry must be based on a valid legal ground (Article 1015 TCC) Registration plus good faith is equal to ownership (Article 1023 TCC) All persons having a convincing interest may inspect the Land Registry (Article 1020 TCC) The liability of the state (Article 1007 TCC) Only certain real rights enumerated in the Civil Code such as ownership may be registered but not personal rights. Law of Property-Participation of Several Persons in Ownership Co-ownership: “If two or more persons own property as co-owners, no one of them can dispose of his share without the consent of the others, and none of them holds a separate part of the property.” (Ansay and Wallace) E.g. Rights of partners in ordinary partnership/ Rights of the heirs in the estate of a deceased person Co-ownership only exists when explicitly stated in law. Joint Ownership: “Joint ownership exists where property belonging to several persons is joined together so as to form a unit in which each person has a share. In contrast to co- ownership, each joint owner is free to dispose of his share without the consent of the others; it can be inherited; a creditor may levy against it.” (Ansay and Wallace) Law of Property-Acquisation of Ownership Acquisition of Movable Property Transfer of Title: Transfer of ownership in respect of movables requires delivery of the property, that is to say the transfer of possession. Furthermore, there must be an agreement between the present owner and the person to whom ownership is to be transferred if that title is to pass. (Ansay and Wallace)  Original (Direct) Acquisition: Personal property which is in its natural state and over which no one yet has taken full and complete control or which is abandoned belongs to the first person reducing such property to his exclusive possession. Examples of this are catching fish or wild animals. By finding lost property or treasure one acquires ownership. (Ansay and Wallace) Acquisition of Immovable Property Land Registry By way of prescription (Article 713 TCC) Questions to Discuss What are the types of succession under Turkish law? Discuss the testate succession in detail. Discuss the intestate succession. Who are the intestate successors? Under what circumstances may the deceased totally debar successors from inheritance? Discuss about “the disclaimer of the inheritance”.  Word List Abandoned: Terkedilmiş Extensive: Geniş, kapsamlı Intangible: soyut, dokunulamaz Acquire: Elde etmek, kazanmak, Fault: Kusur Intellectual Property: Fikri Mülkiyet iktisap etmek Co-ownership: Elbirliği mülkiyeti, Form: Şekil Ownership: Mülkiyet İştirak halinde mülkiyet Creditor: Alacaklı Good faith: iyi niyet Joint Ownership: Paylı Mülkiyet Delivery: Teslim Movable: taşınabilir, menkul Land Registry: Tapu sicili Dispose of: Tasarrufta bulunmak, Immovable: taşınmaz, gayrimenkul Levy: Haciz devretmek, satmak Explicitly: Açıkça Real property: taşınmaz, gayri Liability: sorumluluk menkul Expropriation: Kamulaştırma Intact: dokunulmamış, bozulmamış Mortgage: rehin  Word List Personal right: şahsi hak Recourse: rücu etmek Pertain to: ile ilgili olmak Registration: tescil Possess: elinde bulundurmak Substance: esas Posession: Zilyetlik Tangible: somut, maddi, fiziki Prescription: zamanaşımı ile kazanma Thing: eşya, şey Presumption: Karine Trademark: marka Proximity: Yakınlık Usufruct: intifa hakkı Real right: ayni hak Servitudes: İrtifak Hakları Basic Concepts of Law I Week 4-Family Law II Dr. Bihter KAYTAZ EKER Summary of the Previous Week We started a review of the Book II of Turkish Civil Code (TCC)-Family Law and analysed the titles as follows: The term «family» Relationships falling within the scope of Family Law Engagement Marriage Topics we will discuss today are: Divorce and Separation Parent and Child Relations Guardianship, Curatorship, Statutory Advisors Family Law- Divorce Divorce is the legal dissolution of marriage by court decision in the presence of the following grounds (Articles 161-166 of Turkish Civil Code):  General ground for divorce: Disorder of marriage (Matrimonial breakdown)  Specific grounds for divorce: 1. Adultery 2. Attempt against life, extreme cruelty and behaviour against honour 3. Crimes and dishonourable life 4. Desertion 5. Incurable insanity Family Law- Divorce (General ground for divorce) Disorder of marriage(Matrimonial breakdown), which is provided as a general ground for divorce under Article 166 of TCC, gives the court to decide whether there is severe breakdown of family life which continuation of common life may not be expected. Continuous disagreement among spouses, loss of trust, lack of sexual capacity and defamation have been found as reasons for incompatibility in judicial practice. Family Law- Divorce (General ground for divorce) Additionally, in two cases, family relations are also deemed to be injured and divorce on the ground of matrimonial breakdown must be accepted by the court. These cases are: 1.In case of a contract in contemplation of divorce, the court must divorce the spouses married at least for 1 year. This may be demanded either by the parties together or by acceptance of the case by one party. (Article 166/3). 2.If previous action for divorce has been rejected by the court but the spouses could not come together as a family and have lived separately for at least 3 years, the action depending on the accusation of incompatibility should be accepted by the court. (Article 166/4) Family Law- Divorce (Specific grounds for divorce) Adultery (Article 161 of TCC) A voluntary sexual intercourse by a married person with someone other than one’s spouse means adultery. Rule in relation to «adultery» is laid down under Article 161 of TCC. According to this provision: - If one of spouses has any sexual intercourse with a person other than his or her spouse, action of divorce may be suited within 6 months after the recognition of the adultery by the other spouse. If five years pass since the act of adultery, divorce suit on this ground becomes inadmissible. If adultery is forgiven by the spouse, then s/he cannot bring an action for divorce on the ground of adultery. Family Law- Divorce(Specific grounds for divorce) Attempt against life, extreme cruelty and behaviour against honour (Article 162 of TCC) This ground covers an attempt to murder, threats to do bodily harm to the other spouse, by force or violence. Unlawful beating or other physical violence may also be raised as a reason under this ground. Family Law- Divorce(Specific grounds for divorce) Crimes and dishonourable life (Article 163 of TCC) Crimes and dishonourable life is a ground for divorce in case of theft, dishonourable conduct, such as habitual drunkenness. Desertion (Article 164 of TCC) Cohabitation is one of obligations for the spouses in marriage. This ground appears when a violation of this obligation occurs. Desertion may be a reason for divorce if one of the spouses leaves the matrimonial home to avoid duties of the marriage or without a justified reason, if: - desertion last for at least 6 months, and - a notice to return to matrimonial home, which may be issued by the court or notary is of no effect. Family Law- Divorce(Specific grounds for divorce) Mental Illness (Article 165 of the TCC) if mental illness appears after the marriage, it is a ground for divorce, under certain conditions, namely: - the illness must be incurable, - the illness must make the marriage unbearable for the other spouse. Family Law- Separation The spouse who has the right to bring a divorce suit may demand judicial separation. Judicial separation may be ordered if there is a high possibility that spouses can live together in the future. (Article 170 of the TCC) Judicial separation may be ordered between 1 and 3 years. (Article 171 of the TCC) Judicial separation terminates with the expiration of the separation period ordered by the court. (Article 172 of the TCC) Family Law-Consequences of Divorce Consequences of divorce may be grouped in 3 categories: 1. Personal consequences - Women resume the maiden name. However, she may keep the family name of her husband by the court decision if she has a legal interest in using this name and this will not damage to husband, until it is demanded to be cancelled by the husband. (Article 173 of the TCC) - After divorce, a spouse keeps the nationality of her husband or his wife if s/he acquired the nationality by marriage according to the Article 16 of Nationality Act. Family Law-Consequences of Divorce 2. Financial consequences The spouse that is not primarily at fault for the breakdown of marriage may claim for financial benefits of divorce. A spouse may demand material and immaterial damages from the other spouse. (Article 174 of the TCC) Alimony is paid to the spouse who is needy and less faulty for the breakdown of the marriage. This alimony is ceased or changed (either increased or decreased) in accordance with the conditions. (Article 175 of the TCC) The agreed matrimonial property regime, or, in the absence of such agreement, the participation on acquired property system will apply to the dissolution of the property in divorce. (Article 179 of the TCC) Family Law-Consequences of Divorce 3. Consequences for children - The judge will determine upon which spouse will be given the parental authority over the children. - The other spouse, who loses the parental authority, has to contribute to expenses of raising the children, according to his/her financial situation. This contribution is called as «allowance of participation». (Article 182, 183 of the TCC) Family Law- Parent and Child Relations The creation of parent-child relations We can analyse the creation of the parent-child relations depending on how the kinship come into existence: 1. Natural Relation 2. Adoption Family Law- Parent and Child Relations (The creation of parent-child relations) 1. Natural relations: (a)Relation to Mother: Biological relation between mother and child is obvious (Article 282 of the TCC). (b)Relation to Natural Father in Marriage: Because child born during marriage is legitimate, this child is presumed to descend from the husband of his/her mother. On the other hand, the husband is assumed as father of child who is born not more than 300 days after the dissolution of the marriage. In this case, the husband is entitled to contest the paternity. (c)Relation to Father out of Marriage: A child born out of marriage may be legitimized if his/her parents marry to each other after the birth (Article 292 of TCC). Besides, relationship may be established between father and child by the unilateral recognition by the father(Article 295 of TCC). Finally, relation between father and child may also be established by a court decision according to Article 301 of TCC, through a suit that may be brought by either child or mother. Family Law- Parent and Child Relations (The creation of parent-child relations) 2. Adoption(Articles 305-320 of the TCC): - Adoption is the creation of parent-child relationship by contractual agreement. It should be established by court decision. With the adoption, all rights and obligations of the natural parents are transferred to the adoptive parent. - Adoption may be divided into two categories: (i) child adoption; (ii) adult adoption Family Law- Parent and Child Relations (The creation of parent-child relations) (i) Child Adoption: A person who is unmarried and at the age of 30 may adopt a child with the consent of the statutory representative of the child, after getting permission of the courts and acting a transaction of adoption before notary. Besides, a married person may also adopt alone or with his wife or her husband. The adopted child must be 18 years younger than the adopting parents. Family Law- Parent and Child Relations (The creation of parent-child relations) (ii) Adoption of adults and interdicted person: The same rules are applied to adult relations. However, the adoption of an adult or interdicted person is possible if the descendants of the adopting person give consent to adoption and if a close relation between adopted person and adopting person exists for 5 years. Family Law- Parent and Child Relations (Parental Authority) Parental authority is the power of mother and father jointly over the person and property of their minor children. In the absence of one of the parents, the other spouse will exercise the parental authority as a rule solely. If the parents are not married, the mother is assumed to have the parental authority. (Article 335-338 of the TCC) Family Law- Guardianship, Curatorship, Statutory Advisors Guardianship: Guardian may be provided in certain circumstances to protect the interests of persons listed below: - A minor child who has lost both parents and is not under parental authority(Article 404 of the TCC), - Lunatics and mental defectives (Article 405 of the TCC), - Prodigals or spendthrifts (Article 406 of the TCC), - Criminals imprisoned for one year or more (Article 407 of the TCC), - An individual who request to be provided a guardian (Article 408 of the TCC). Family Law- Guardianship, Curatorship, Statutory Advisors Duties of guardians are provided between Articles 438-457 of the Civil Code. There are some acts that guardians are not allowed to perform. These acts, which are provided in Article 449 of the Civil Code, are (i) establishing a foundation with the property of his/her ward, (ii) donating from the property of his/her wards’ property, (iii) putting his/her ward under a legal responsibility as a guarantor. Family Law- Guardianship, Curatorship, Statutory Advisors Curatorship: Article 426 of the Civil Code provides circumstances in which the court may appoint a curator. According to this provision these circumstances are as follows: - If a person is not able to administer his/her property; - if the interests of the guardian or parent and the ward are in conflict; - if there is an impediment preventing the guardian from doing his/her duties. Family Law- Guardianship, Curatorship, Statutory Advisors Statutory advisor: Court may appoint a statutory advisor to a person with limited capacity to give advice in several issues, such as bringing an action and conciliation, purchase and sale of immovable property, signing negotiable instrument, making a credit transaction, donation, or signing of guaranty contract(Article 429 of the Civil Code). Questions to discuss: In which international document do we find the term “family”? How about in Turkish Law? What kind of relations fall within the scope of Family Law? What does “engagement” mean? Is engagement enforceable, i.e can someone oblige the other to marry? What are the consequences of breaking off an engagement? Discuss them in details. What should we understand when we say “capacity to marry”? What are the conditions to have the capacity to marry? Discuss about the marriage impediments. What options are provided in Civil Code for couples in marriage to regulate their pecuniary relations during the marriage? Word List Divorce: boşanma Action of divorce: boşanma Desertion: Terk davası Separation: ayrılık Mental Illness: Akıl hastalığı Maiden name: evlenmeden önceki soyad Parent and Child Relations: Notice: ihtar Theft: hırsızlık ebeveyn-çocuk ilişkisi Adultery: Zina Incompatibility: geçimsizlik Attempt against life, extreme Disorder of Crimes and dishonourable life: cruelty and behaviour against marriage(matrimonial suç işleme ve haysiyetsiz hayat honour: Hayata kast, pek kötü breakdown): evlilik birliğinin sürdürme veya onur kırıcı davranış sarsılması Word List Material damage: maddi zarar Curatorship: Kayyımlık Ward: vesayet altındaki kimse Immaterial damage: Manevi zarar Statutory advisor(legal Guarantor(surety): kefil supervisor): Yasal danışman Alimony: yoksulluk nafakası Incurable: tedavi edilemez Negotiable instruments: kıymetli evrak Allowance of participation: iştirak Paternity: babalık To sue: dava açmak nafakası Kinship: Hısımlık Adoption: Evlat edinme Justification: gerekçe, sebep Parental authority: velayet Consent: rıza Expense: masraf Lunatics and mental defectives : Trial: duruşma, yargılama akıl hastalığı veya akıl zayıflığı(Article 405 of the TCC) Guardianship: vesayet Prodigals or spendthrifts: Termination: sona erme savurgan ve müsrif Basic Concepts of Law I Week 2-Law of Persons Dr. Bihter KAYTAZ EKER  Summary of the Previous Week The difference between private law and public law Main branches of public law and private law Legal rules which are dealt with by the Civil Law Background and systematic arrangement of the Turkish Civil Code Principles under the Preliminary Chapter of Civil Code  Topics we will discuss today are: Book I of Turkish Civil Code(TCC)-Law of Persons: The term «persons» Beginning and End of Personality Ability to be Subject of the Rights and Obligations Capacity to Act The term «Persons»  The Meaning of the Term «Persons» The term «persons» refers to entities that have capacity to have right and obligation. Who decides whether an entity counts as a person? Legislator decides the content of the term “persons” in accordance with its own ethical view and lawmaking policy, social realities and requirements.  Types of Personality The term «persons» covers not only natural/real persons, but also legal persons. CLASSIFICATION OF PERSONS Real(Natural) Persons Legal Persons  Real (Natural Persons) Natural/real persons are human beings.  Legal Persons Legal persons are legal entities, which are created by the function of law. Legal entities consist of group of persons or group of assets, allocated to pursue a certain and continuous purpose. (e.g. associations, foundations, corporations). To be more specific, associations and corporations are legal entities, consisting of group of persons who pursue a certain purpose; a foundation (Lösev) is legal entity, consisting of assets/funds that are allocated for a specific purpose. The characteristics of legal persons Legal personality is an independent right subject separate from its founders, members, partners and managers who make up its organs. Legal Personality is not affected by the inclusion or withdrawal of its founders, members, partners and organ from the legal person, or by their desire to dissolve the legal personality. Individuals come and go, but the legal personality is permanent. Being organized for the permanent purpose is the feature that makes the legal personality a “person”. The legal person has its own legal identity (name), address (place of residence), private assets; can enter into a contract and acquire property; assumes responsibility for the harmful (unlawful) actions of its organs to others.  How about animals? Neither animals nor things can be accepted as persons. They can only be objects over which rights are exercised. However, there are civil codes, differentiating animals from things, around the world. For example, Section 90 of the German Civil Code(BGB) provides that: «Animals are not things. They are protected by special statutes. They are governed by the provisions that apply to things, with the necessary modifications, except insofar as otherwise provided.» Beginning and End of Personality  Beginning and End of Personality Law of Persons regulates all relations of the beginning, scope, protection and end of personality. How does the personality of natural persons and legal persons begin and end?  Beginning of the Personality (Natural Person) The rule for the beginning of a natural person’s personality is the moment of birth (with a complete and alive separation of a child from his/her mother’s body). However, Turkish Civil Code recognises a child’s legal capacity between conception and birth, depending on child’s born alive (Article 28/II).  End of Personality (Natural Person) The personality of a natural person ends with by means of several ways: - Death (with the termination of the functions of central nervous system) - Absence - Presumption of Death  Death Death is the natural way of termination of personality. When a person dies, his/her personality rights also come to an end. Becasue personality rights are absolute personal rights, they are not transferable or inheritable. Upon the death, this person’s porperty passes to his/her successors. The natural person’s personality ends at death, as soon as the functions of central nervous system stop. The death must be determined officially with a document by authorities.  Absence The rule in relation to “absence” is laid down from Articles 32 to 35 of the Turkish Civil Code. According to the relevant provisions, a person may be declared absentee: - if s/he is missing for 5 years and no news has been received from him/her during 5 years, OR - if s/he has been lost in a dangerous circumstances and s/he has not been found within 1 year.  Absence Unlike death, the property of the absentee passes to the successors with a condition of a guarantee period of time. This guarantee period differs depending on circumstances. If the missing person comes back within - 15 years in case of the former situation, and - 5 years in case of the latter circumstances, i.e. Dangerous Circumstances, the successors would return the property back to the owner. The guarantee period ends at the 100th age of the absentee on any ground.  Absence The marriage of absentee is valid until the marriage is dissolved by the court upon a request.  The presumption of Death Article 31 of the TCC: “If a person disappears under the circumstances where there is a definite indication of a death even if the body is not found, then he/she is regarded as deceased.” If a person disappears in the risk of death, this person is deemed to be dead even if the body is not found. A person may disappear in an airplane crash, a shipwreck, fire, flood, earthquake, etc. The result of the presumption of death is just like the results of death. According to this, the marriage is deemed to end and the rights of inheretence arise at the time of incident causing the risk of death. Nonetheless, it is important to remember that presumption of death is rebuttable. If the person declared dead reappears, the highest administrative authority of that place must annul this order.  The presumption of Death Turkish Law on Civil Registration Services 5490 deals with the application of this principle under Article 32. Presumption of death ARTICLE 32- (1) If a person disappears in circumstances which necessitate the presumption of that person's death, even if the corpse of that person is not recovered, the death event shall be processed upon the order of the local governor of the place of application by issuing a death report. (2) In order to act according to this Article, the event shall be documented by applying to the civil registration office by one of the descendants or ascendants or siblings, in the absence of these, by the heirs, or by a written notification to the civil registration office by the competent authorities. (3) If the documents attached to the application, and where necessary the investigation initiated by the civil registration office, are deemed sufficient to prove that at the time of the event the person presumed dead was there, the death event shall be registered upon the order of the local governor.  Beginning and End of Personality (Legal Person) Personality for legal person begins with registration, and ends with the erasure of entry in the Registry. Ability to be Subject of the Rights and Obligations  Ability to be Subject of the Rights and Obligations The effect of the beginning and end of personality relates to the ability to be subject of the rights and obligations. A human being is able to be subject of rights from the moment that it is born alive, and the ability to be subject of rights ends at death. It is recognised under modern legal systems that every person can be subject of the rights and everyone is entitled to the rights recognized by the law, irrespective of their nationality or social origin.  Ability to be Subject of the Rights and Obligations This understanding is expressed in Article 6 of the Universal Declaration of Human Rights: “Everyone has the right to recognition everywhere as a person before the law”. This rule is also added in the Turkish Civil Code in Article 8 as follows: “Every person can be the subject of rights; within the limits imposed by the law, they have an equal capacity to possess rights and duties”.  Ability to be Subject of the Rights and Obligations Legal entities, which are established properly, have same rights and obligations with natural persons, except rights and obligations which are intrinsic to human beings, such as maturity, marriage, adoption. Capacity to Act  Capacity to Act Capacity to act means the ability - to use rights; - to have obligations; and, - to enter into transactions. Bear in mind the difference between being a subject of rights and having the capacity to act! Every person has the ‘legal capacity’ (being subject of the rights), but not everyone has the ‘capacity to act’. All the people are equal in terms of having rights; they are not equal in terms of using rights. The legal validity of a transaction depends on that each party to transaction has the capacity to act.  Capacity Classifications In Turkish Law, natural persons are divided into 4 groups in relation to the capacity to act: Full Capacity (Articles 9-13 TCC) Full Incapacity (Article 15 TCC) Limited Capacity (Article 16 TCC) Limited Incapacity  Full Capacity(Articles 9-13 TCC) Persons who satisfy the following conditions would have full capacity to act - the age of majority (mature), which is 18 in Turkish law, - the power of discernment (the power to distinguish) - not being under guardianship A person with full capacity is fully capable of entering into transactions.  Full Incapacity Person who does not have ability to make sound judgement is fully incapable to act. The second element of the full capacity, i.e. “having the power of discernment”, is certainly absent here. A person with full incapacity is not capable of entering into transactions. Then, any transaction made by such person is void. A person with full capacity must act through a guardian.  Limited Capacity A person with limited capacity may indeed satisfies the three conditions of full capacity but is limited by the court for certain transactions, which are listed in Article 429 of TTC, such as filing a case, sale of immovable property, donating, making contract of surety. A person with limited capacity is liable for wrongful actions.  Limited Incapacity People with limited incapacity may be divided in two: minors who are deemed to be capable of making sound judgement, adult persons who have been incapacitated.  Limited Incapacity We can group their contractual capacity in three groups of transactions: General Rule: Transactions with the approval of their statutory representatives Transactions of own power (e.g. filing against paternity; accepting a gift under Article 16 of TCC) Prohibited transactions (e.g. Donation; dedication; suretyship and prohibition of competition)  Transactions with the approval of their statutory representatives Persons with limited incapacity may act through their guardians. They must have permissions of their guardians for the transactions, which make them liable or debtor, either before or after the transaction. Transactions without consent are voidable by the person with limited incapacity. S/he can declare that the transaction is void, and the other party is bound with the transaction until the approval by the guardian in a certain period of time given by him.  Transactions of own power They may have capacity for certain transactions, which are about one of their personal rights (e.g. filing against paternity) or which do not involve any incurring obligations or liabilities for them (e.g. accepting a gift-Article 16 of TCC)  Prohibited Transactions Some transactions are prohibited for the persons with limited incapacity or for their representatives, such as donation, dedication, suretyship and prohibition of competition.  Questions to discuss: Discuss the difference between private law and public law. What are the main branches of public law and private law? What legal rules are dealt with by the civil law? Please explain the systematic arrangement of the Turkish Civil Code. What are the principles under Preliminary Chapter of the Civil Code? Word List Law of Persons: Kişiler Hukuku Capacity to act: fiil ehliyeti Statute: yasa, kanun Universal Declaration of Human Natural/real person: gerçek kişi Birth: doğum Rights: Evrensel İnsan Hakları Beyannamesi Subject of a right: hak sahibi Legal person: tüzel kişi Legal capacity: ehliyet; dava olmak (be subject of rights: hak ehliyeti ehliyeti olmak) Pesonality: kişilik Asset: malvarlığı Conception: ana rahmine düşme; gebelik Rights: haklar Association: dernek; ortaklık Absence: Gaiplik Obligations: borçlar Bussiness corporation: ticari Presumption of death : ölüm işletme, ticari şirket karinesi The ability to be subject of rights Foundation: vakıf Lost/missing: kaybolma and obligations: hak ehliyeti Word List Guarantee period: teminat süresi, Age of majority: reşit olma yaşı Consent: rıza garanti süresi Successor: misasçı Power of discernment: ayırt etme Approval: Kabul, onay gücü Capacity to act: fiil ehliyeti Interdicted: kısıtlı kimse Registration: tescil, kayıt Full Capacity: Tam ehliyetli Guardianship: velayet Full Incapacity: Tam ehliyetsiz Void: batıl, hükümsüz, geçersiz Limited Capacity: Sınırlı ehliyetli Interdicted: mahcur Limited Incapacity: Sınırlı Voidable: fesholunabilir, geçersiz ehliyetsiz kılınabilir  Basic Concepts of Law I Week 1-Preliminary Chapter Dr. Bihter KAYTAZ EKER Course Plan Your expectation? Our plan: Fall Term-Private Law Spring Term-Public Law Sources for the Course Course Book: Turkish Private Law-Prof. Dr. M. Refik Korkusuz Recommended Reading List: An Introduction to Law-Rona Aybay Introduction to Law in a Nutshell- Engin Saygin Introduction to Turkish Law-Tugrul Ansay and Don Wallace JR Exam: Mid-term exam: 40% (mixture of various styles, such as test, true-false and/or fill in the blanks questions) Final exam: %60 (exam style is not certain yet) Topics we will discuss are: The difference between private law and public law Branches of public law and private law Legal rules which are dealt with by the Civil Law Background and systematic arrangement of the Turkish Civil Code Principles under the Preliminary Chapter of Civil Code The term «Law»  Collins Cobuild English Dictionary defines «law»: A rule or set of rules, enforceable by the courts, regulating the government of a state, the relationship between organs of government and the subjects of the state and the relationship or conduct of subjects towards each other; A rule or body of rules made by the legislature; The condition and control enforced by such rules; One of a set of rules governing a particular field of activity; A binding force or statement A general principle, formula or rule describing a phenomenon in mathematics, science, philosophy, etc. Notable features of «law»: normative; institutionalized; coercive; protective Shortly, we may define “law” as the rules regulating people in their relationships with each other and in their relationships with the state. Difference between Private Law and Public Law-Roman Jurists Roman jurists divided the body of legal rules into public law and private law, based on «the nature of the interests protected by the law». According to their understanding, public law is that branch of the law which focuses on the interests of the community while private law considers the interests of individuals. In other words, public interests were dealt with by the public law while private interests were considered to fall into the scope of the regulation of private law. Difference between Private Law and Public Law-Today Such division still exists in Continental European countries. However, the theory behind a division like that has evolved in time. Today, it is not easy to distinguish public interest from the private interest because regulation of relations between private individuals and peaceful resolution of disputes are not only the interests of the private individuals involved in the dispute but also the interests of the State. The “interest-theory” of Roman jurists has been replaced with other theories, among which “subject theory” is the one commonly applied. According to this theory, public law and private law are differentiated from each other depending on the character of the parties. Difference between Private Law and Public Law-Today Then, under the subject-theory: Public law handles the relationships and resolution of conflicts between individuals and the State; governmental regulation of individual and corporate activities; organisation and limitations of State power. Private law deals with the relationships and resolution of disputes between private individuals(both legal and natural persons). Difference between Private Law and Public Law-Today Bear in mind that: If one of the parties is the State in its sovereign capacity, then the relation is of public nature and governed by the rules of public law. E.g. for the State acting with sovereign capacity, one may have a look at the relationship between the government and the taxpayer individuals in taxation. Such relationship is public law relationship which would be governed by the law of taxation, which falls into the scope of the public law. If none of the parties are in sovereign capacity, then the relation will be considered as private law matter. E.g for the State in private-law relationship-If a State rents a building from a private individual for the purpose of accommodating an administrative office, then this transaction is not a public affair in the legal sense. The fact that the State is tenant and the private individual is landlord makes this relationship a private-law relationship. Difference between Private Law and Public Law-Today In public law, the State is in a superior position while in the private law there is an assumption that subjects of the private law are equal as a rule, irrespective of gender, nationality, economic or educational circumstances of individuals. Main Branches of Public Law Constitutional Law Administrative Law Criminal Law Public International Law Main Branches of Private Law We may divide the private law into three main branches: Civil Law Commercial Law Private International Law Besides of these main branches, there are some other categories of law that falls within the scope of private law, such as the laws regarding copyright, patents, intellectual property, information technology and protection of industrial rights. Our Route to Analyse the Branches of Private Law Civil Law until week 10 Commercial Law in 10th and 11th weeks Private International Law in Week 12 Labor Law and Civil Procedural Law in last two weeks Check your email for the syllabus for the course Civil Law-Legal Rules under the Civil Law The term civil law is derived from the Roman law term of «ius civile» which was the law applicable to Roman citizens, to the people of the City of Rome. The Turkish term «medeni» comes from the Arabic term «Medine» which means «city». Civil law comprise legal rules related to Personality; Marriage; Family relations; Property rights; Succession (inheritance); Obligations. Civil Law-Legal Rules under the Civil Law It is clear that the legal rules which are covered by the civil law are about economic aspects of social life on the one hand and the legal status of persons on the other hand. Civil Law- Background and the Systematic Arrangement of the Turkish Civil Code Ottoman legal system: “Mecelle” was considered as a systematic and detailed civil code because it regulated Contracts, Obligations, and Civil Procedure Law. The first Civil Code of Turkey was adopted from Switzerland in 1926. After a number of minor changes of this Code in later years, a new Turkish Civil Code came into force in January 2002. Civil Law-The Systematic Arrangement of the Turkish Civil Code The Civil Code consists of  Preliminary Chapter  4 Books, namely (i) Book I-Law of Persons (Articles 8-117), (ii) Book II-Family Law (Articles 118-494) (iii) Book III-Law of Succession (Inheritance) (Articles 495-682), (iv) Book IV-Law of Property (Articles 683-1027). The Code of Obligations is regarded as an integral part of the Civil Code even though it is a separate code. The recent version of the Code of Obligations was adopted in 2011. Civil Law-Preliminary Chapter of Civil Code The Preliminary Chapter of the Turkish Civil Code provides us with the basic concepts of private law from Article 1 to Article 7. These general rules are applicable to all areas of private law. Civil Law-Preliminary Chapter of Civil Code The principles under the preliminary chapter may be collected in 4 groups: Principle 1: “the order of the application of legal rules”(Article 1): - written rules (1st paragraph of Article 1) - customary law (2nd paragraph of Article 1) - the judge-made law (3rd paragraph of Article 1) Civil Law-Preliminary Chapter of Civil Code Principle 2:“the discretion and law-making functions of judges in administration of justice” (Article 1 and Article 4): - «according to the rules that he would lay down if he himself had to act as legislator»(2nd paragraph of Article1) (law-making function) - «where the law leaves a point to the discretion of the judge or directs him to take the circumstances of the case into consideration or to appreciate whether a legitimate ground exists, he must base his decision on principles of justice and equality» (Article 4) (discretionary power) Civil Law-Preliminary Chapter of Civil Code Principle 3: “the role of good faith in legal relations”(Articles 2 and 3) - Conduct in Good Faith-Article 2 - Bona Fides-Article 3 Civil Law-Preliminary Chapter of Civil Code Principle 4: “Rules of Evidence”(Articles 6 and 7) - Burden of proof (Article 6) - Proof by public documents (Article 7)  Word List Public Law: Kamu Hukuku Government: idare, devlet, hükümet, Transaction: muamele, işlem yönetim Private Law: Özel Hukuk Governmental regulation: idari Public affairs: kamu işleri, düzenleme kamuyu ilgilendiren işler Jurist: hukukçu, hukuk bilgini Individual and corporate activities: Tenant: kiracı bireysel ve kolektif aktiviteler Legal rules: hukuk kuralları Relationship: hısımlık, ilişki Taxpayer: vergi yükümlüsü, vergi mükellefi Branch: dal; kol; şube; bölüm Legal person: Tüzel kişi Taxation: vergi tahsilatı, vergilendirme Interest of the community: topluluğun Natural person: Gerçek kişi Govern: yönetmek; egemen ya da kamunun çıkarları olmak; yönlendirmek; sonucu belirlemek Interest of individuals: bireylerin çıkarları Sovereign: egemen, hükümran Gender: cinsiyet  Word List Resolution of disputes/conflicts: Rent/Lease: kiralamak Nationality: milliyet, tabiiyet, uyuşmazlıkların/ihtilafların çözümü vatandaşlık Civil Law: Medeni Hukuk Property right: mülkiyet hakkı Law of Succession(Inheretence): Miras Hukuku Commercial Law: Ticaret Hukuku Succession/inheretence: Miras Law of Property: Eşya Hukuku Private International Law: Obligation: borç; yükümlülük Law of Obligations: Borçlar Hukuku Uluslararası Özel Hukuku Copyright Law: Fikri Mülkiyet Legal status: yasal statü Turkish Civil Code: Türk Medeni Hukuku Kanunu Intellectual Property: fikri haklara Adopt a law: yasayı kabul etmek, Legal existence: kanuni varlık konu olan değerler benimsemek Personality: Kişilik Preliminary Chapter: Başlangıç Codify: kanun halinde toplamak; Bölümü düzenlemek Marriage: Evlilik Law of Persons: Kişiler Hukuku Law of Persons: Kişiler Hukuku Family relations: aile ilişkileri Family Law: Aile Hukuku Codification: yasalaştırma  Word List Integral part: tamamlayıcı parça Heir: Mirasçı Agency: temsil, vekalet Labor Law: İş Hukuku Inheritance: tereke, miras Commercial transaction: ticari işlem Civil Procedural Law: Medeni Deceased: ölü, miras bırakan, Conflict of Laws: Kanunlar İhtilafı Usul Kanunu muris Engagement: nişanlanma Acquisition: kazanım, iktisap Law of nationality: Tabiiyet Hukuku Divorce: boşanma Movable property: taşınır mal Law of foreigners/aliens: Yabancılar Hukuku Paternity: babalık Immovable property: taşınmaz International Procedural Law: mal Milletlerarası Usul Hukuku Child custody: velayet Registration: tescil, kayıt Provison: kanuni hüküm Domestic relations: aile hukuku, Mortgage: Taşınmaz rehni In default of: yokluğunda aile içi ilişkiler Adoption: evlat edinme Sale of goods: mal satımı Discretion: takdir yetkisi Guardianship: vesayet Donation: bağış Good faith: iyi niyet Inherit: miras yoluyla kazanmak Loan: ödünç Employer: işveren/ Employee: işçi