The absence of a written contract does not mean that an ordinary partnership (adi ortaklık) was never formed. However, the party who asserts the partnership relationship in court must establish the common purpose and the commitment to contribute with evidence that meets the procedural requirements. Bank records, messages, commercial records and witnesses do not carry the same legal weight. In particular, the rule requiring proof by written instrument (senetle ispat), initial evidence (delil başlangıcı) and the exceptions concerning the hearing of witnesses must be assessed together.
The first question in preparing proof should not be “How many documents do I have?” First, the event to be proved is determined: Is it the formation of a partnership, holding a share in a particular proportion, the payment of a contribution, or the arising of a claim at the end of liquidation? Without this distinction, a large number of bank receipts may not show the intention to be partners that lies at the root of the dispute.
Which elements of an ordinary partnership must be proved?
Within the framework of TBK Articles 620–623, what matters is that the parties undertake contributions for a common purpose and intend to take part in achieving it. A contribution may be labor as well as money or property. The fact that only one person manages the day-to-day running of the business does not necessarily mean that the other person is not a partner. Conversely, being constantly present at the workplace does not by itself prove partner status.
Money sent to a person may be a loan, a sale price, an advance, a wage or a participation share. Likewise, a payment made from the income of the business may be a profit share, but it may also be a commission or the repayment of a debt. The explanations in the documents, the chronological order, the parties’ correspondence and their actual conduct should be examined together.
Who bears the burden of proof?
Under HMK Article 190, as a rule, the party who derives a legal consequence in their own favor from a fact must prove that fact. The person asserting the existence of the partnership must set out concretely the events on which the claim rests. If the other side admits the partnership and argues that payment was made, separate evidentiary issues arise as to terminating facts such as payment.
The judge’s power to characterize the facts in law does not mean generating, on the court’s own motion, events that the parties have not asserted. Instead of a general statement such as “we worked together,” it should be explained when, for which business, and on what contribution and sharing an agreement was reached. Linking the concrete facts to the evidence is also important with regard to HMK Article 194.
Why might a witness not be sufficient even though the contract is valid?
The form of validity and the form of proof are different. Although an ordinary partnership can generally be formed orally, in a dispute the proof-by-written-instrument rule of HMK Article 200 may apply. The amount or value at the time the legal transaction was made is compared with the monetary threshold in force on that date. It is not correct to apply the figure in force on the date of the lawsuit to all earlier contracts.
Because monetary thresholds change under HMK Additional Article 1, the amount in an old internet article should not be taken as a permanent yardstick. There are also debates in the doctrine on how the value is determined and on the scope of proof by written instrument in a partnership relationship. For this reason, both categorical approaches, “an ordinary partnership is always provable by witnesses alone” and “without a signature it can never be proved,” are misleading.
For claims that remove or reduce the effect of a transaction bound to a written instrument, HMK Article 201 also comes into play. A claim that a different share ratio was later agreed orally, where there was a written contract at the start of the partnership, should be assessed separately from a relationship for which no document exists at all.
What is initial evidence, and which document can have that character?
Under HMK Article 202, initial evidence (delil başlangıcı) is a document that, even though it does not fully prove the alleged legal transaction, makes it probable, and that was issued or sent by the person against whom it is asserted or by that person’s representative. A document meeting these conditions may make it possible to hear witnesses in cases where proof by written instrument is required.
Statements such as “our partnership’s profit share” or “the contribution you will put into the business” in a correspondence may be significant. However, the context of the words, who sent them, which relationship they belong to and whether they were later altered are assessed. A screenshot of a single word taken out of context is not sufficient.
Is a list prepared by the person themselves treated as initial evidence?
An account table prepared by the claimant alone does not by itself satisfy the requirement of originating from the other side. If the same table is signed by the other party, expressly confirmed, or sent in that party’s own message, the legal assessment may change. It cannot be accepted that silence is confirmation in every case.
The fact that a bank receipt is generated by the bank also does not make irrelevant whose statement the description field contains. A “capital” description written by the sender may not, by itself, show the recipient’s intention to be partners. If there is a reply message sent by the recipient, a joint account statement or a signed reconciliation, these are examined together.
How are bank records, commercial documents and messages assessed?
What the evidence shows and what it does not show must both be determined. A money movement shows a transfer; further explanation may be needed for partner status. The payment of an invoice matters for a contribution or a business expense; however, whose debt that invoice relates to is also investigated.
| Record | Fact it may support | Issue it may not resolve alone |
|---|---|---|
| Bank receipt | Date, amount and direction of the money | Whether the payment was a partnership contribution |
| Message from the other side | Admission of contribution, sharing or partnership | Identity of the sender and the whole context |
| Invoice and delivery document | Relationship of goods or services to the business | Partner status and share ratio |
| Authorization document | Authority to carry out certain transactions | Whether the authorized person is a partner |
| Commercial book | Accounting entry of the transaction | Conditions of HMK Article 222 and counter-entries |
| Witness testimony | A concrete event seen or heard | Whether hearing the witness is legally possible |
Can WhatsApp and e-mail records be used?
HMK Article 199 contains a provision that makes data in electronic form suitable for assessment as documents. This does not mean that all screenshots are automatically conclusive evidence. The sender, the date, the flow of the correspondence and the integrity of the content can be disputed. For data bearing a secure electronic signature, HMK Article 205 contains a separate provision; an ordinary message does not acquire this status by itself.
If possible, the whole conversation, its attachments and the record on the original device should be preserved. Making a copy for the file, drawing up a chronology and, where necessary, a technical examination are valuable. A notarial record or an expert examination also does not by itself determine the legal meaning of the record; what the content proves is assessed by the court.
Unlawfully obtained evidence cannot be taken into account under HMK Article 189/2. Entering another person’s account without permission, bypassing a password or obtaining unrelated private correspondence is not a solution. Preserving correspondence to which the person is a party and obtaining data from a third party’s account should not be treated as the same act.
Do commercial books prove the partnership in every dispute?
In assessing books as evidence under HMK Article 222, conditions such as the nature of the dispute, the statutory record-keeping system and the other side’s records matter. Not every spreadsheet is a commercial book. On whose instruction and on the basis of which document the “partner” description used in the book was entered may also be investigated.
The fact that the business is registered in the name of only one partner or of another company does not by itself conclusively exclude an undisclosed partnership relationship. On the other hand, such a claim requires a strong and procedurally proper body of evidence showing a legal relationship different from the outward appearance. The accountant’s account also carries weight only within the conditions for hearing witnesses and within the scope of direct knowledge.
In which situations can a witness be heard?
Witness evidence may be considered in cases that fall outside the scope of the proof-by-written-instrument rule or where there is a statutory exception. Under HMK Article 200/2, the express consent of the other side is also important. The fact that a witness list has been submitted does not mean that the other side has expressly consented.
HMK Article 203 contains various exceptions, such as transactions between relatives listed in the law, transactions that by their nature and the circumstances of the parties are customarily not put in writing, extraordinary difficulty in obtaining an instrument, defects of will, and loss of an instrument through an unforeseen event. The conditions of each exception must be shown.
Is kinship or friendship sufficient for a witness?
Not every kinship relationship falls among the persons listed in HMK Article 203. Close friendship is likewise not a general exception that removes the requirement of a written instrument. Trust within the family may explain how the relationship developed; but it cannot replace the statutory exception.
A witness having seen the parties working together is different from a witness having taken part in the founding discussion. Instead of repeating a hearsay conclusion that “they were partners,” the witness is expected to describe events known directly, such as a commitment to contribute, a discussion of sharing, or a decision taken together. The consistency of witness accounts with the documents and the sequence of dates is assessed separately.
What risk does the Court of Cassation’s approach show?
In its decision of November 8, 2023, E. 2023/4413, K. 2023/3160, the Court of Cassation 3rd Civil Chamber (Yargıtay 3. Hukuk Dairesi) examined a claim that a partnership relationship existed in a business. Payment and authorization relationships between the parties were relied on; nevertheless, the court’s assessment that the partnership relationship could not be proved was upheld. In the decision, proof by written instrument, initial evidence, consent concerning witnesses and reliance on evidence by oath were separate subjects of assessment.
The practical result of this decision is that a general power of attorney or the payment of expenses should not, by itself, be treated as an admission of partnership. At the same time, the decision does not say that all oral partnerships cannot be proved. In another file there may be an account signed by the other side, an express admission of the partnership or facts showing a statutory exception. The result depends on the concrete structure of the evidence.
The work of Melis Taşpolat Tuğsavul on the subject likewise shows that substantive law and procedural law must be addressed together in proving an ordinary partnership, and that the approach in practice is debated in the doctrine. For this reason, building a litigation strategy on a general sentence such as “it is not bound by form” alone is not sufficient.
How is an evidence file prepared before litigation?
First, a chronology of events should be created. Founding discussions, contribution payments, the start of the activity, profit sharing and the date of the dispute are separated from one another. For each line, the document that supports that fact and who holds the document are written down. The same record may support different claims; but a larger number of documents does not make up for a missing fact.
| Matter to be proved | Explanation to prepare | Point to watch when requesting documents |
|---|---|---|
| Intention to be partners | When and for what purpose the agreement was made | Relevant dates and parties to the correspondence |
| Performance of the contribution | Which amount or labor was provided | Link between account, transaction and delivery |
| Share ratio | On which agreement the ratio is based | Signed admission or the relevant message thread |
| Account and profit | Income, expenses and payments made | Period, book and type of document |
| Liquidation claim | The net right remaining after the whole account | Assets, debts, advances and set-offs |
Production of documents held by the other side may be requested within the framework of HMK Articles 219–220. Instead of “let all documents be brought,” the type of document, the period, the related transaction and the claim for which it is needed should be explained. Preparation is also easier if concrete account and date information is prepared for obtaining bank or other institutional records.
If there is a danger that evidence will be lost or that presenting it later will become significantly harder, preservation of evidence under HMK Article 400 et seq. may be considered. Preservation of evidence is not a decision that accepts the existence of the partnership in advance. Concrete risks, such as restricted access to the account or the closure of the business, and the legal interest should be shown.
When should evidence be submitted?
Facts and evidence should be set out in an orderly manner in the statement of claim and the statement of defense. The definitive time limits set by the court and the conditions in HMK Article 145 for submitting evidence later are taken into account. An approach of “if a document turns up I will submit it later” carries the risk that the evidence will be left outside the assessment.
Evidence by oath, admission and expert examination are also different from one another. The effect under HMK Article 188 of an admission before the court is not the same as treating a statement in a private message as a document. An oath is evidence linked to personal knowledge and intention, with serious procedural consequences. An expert cannot create a missing intention to be partners; an expert assesses technical and accounting matters.
How are a declaration of the partnership, a profit claim and a liquidation claim distinguished?
Under HMK Article 106, a current legal interest is required for a declaratory action. It is not necessary in every dispute first to bring an independent action for “declaration of the partnership.” Within a claim for performance or liquidation, the existence of the partnership relationship can be examined as a preliminary issue. The choice of claim is made according to whether the relationship continues and the legal protection sought.
Once the partnership is proved, not all account claims are automatically confirmed. An admission of a fifty percent partnership may not mean that a specific amount is a collectible claim. The activity’s income, debts, expenses, advances and earlier payments are investigated separately. In the petition, the existence of the partnership and the calculation of the monetary claim should be explained separately.
The competent court and mandatory mediation as a prerequisite to suit are not determined by the words “ordinary partnership” alone. The nature of the parties, the connection to a commercial enterprise and the type of claim are assessed together. This review should not be left until after the evidence is complete; a wrong procedural route can cause a loss of both time and costs.
Related articles: Ordinary Partnership Agreement: Capital and Profit-Loss Sharing; Debts of an Ordinary Partnership: Liability, Litigation and Enforcement; Management, Representation and Withdrawal of Authority in an Ordinary Partnership; Death of a Partner in an Ordinary Partnership and the Rights of the Heirs; Return of Capital and Recovery of Money in an Ordinary Partnership.
Conclusion
Proving an ordinary partnership without a written contract is possible; but the evidence that can be used is not the same in every file. A sound preparation separates the intention to be partners from the payment of a contribution, and the share ratio from the net claim. Bank records, messages and commercial documents should be collected with their source and context preserved, and the usability of witness evidence should be assessed within the procedural rules.
Frequently Asked Questions
Can a partnership be proved with a bank receipt alone?
A receipt can show the fact of payment. For the partnership relationship, the description, the other side’s statements and the other evidence are assessed together. It cannot be said that every receipt has the same probative force.
Is it enough for the correspondence to say “my partner”?
This expression can be significant; but the context of the conversation, the identity of the sender, the relevant business and its consistency with other records are examined. Whether the conditions of initial evidence are met is assessed separately.
Is proof by witnesses always possible between close friends?
No. Friendship alone is not a general exception. A concrete assessment is needed as to the monetary threshold, initial evidence, express consent or the other exceptions regulated by law.
Does a general power of attorney show that I am a partner?
A power of attorney may show certain authorities; it may not be sufficient alone for the intention to be partners and the share ratio. Authorization and the partnership relationship should be kept apart.
If the business is registered in the other person’s name, can no action be brought?
The registration is important evidence, but it does not in every case prevent a claim of a different partnership relationship. This claim must be supported by procedurally proper evidence.
If the partnership is proved, will I get back all the money I paid in?
No. Contribution, advance and debt payment should be separated; profit-loss and, if necessary, a liquidation account should be made. The existence of the partnership and the amount that may be claimed back are different subjects of examination.
Sources
- Law No. 6098, Turkish Code of Obligations (Türk Borçlar Kanunu), Arts. 620–623 and 642–644.
- Law No. 6100, Code of Civil Procedure (Hukuk Muhakemeleri Kanunu), Arts. 33, 106, 145, 188–205, 219–222, 225 et seq., 400 et seq., Additional Art. 1.
- Court of Cassation (Yargıtay) 3rd Civil Chamber, November 8, 2023, E. 2023/4413, K. 2023/3160. Access to the decision may require an account.
- Melis Taşpolat Tuğsavul, Adî Ortaklık Sözleşmesinin İspatı Meselesi (The Issue of Proving the Ordinary Partnership Agreement), Turkish Bar Association Journal (TBB Dergisi), 2023, No. 168, pp. 227–273.