Legal Glossary

In civil proceedings, temyiz, the appeal to the Court of Cassation (Yargıtay), is the ordinary legal remedy through which decisions of the regional court of appeal that are open to appeal are reviewed on points of law by the Court of Cassation. The application period is, as a rule, two weeks from the proper notification of the decision. Whether a decision can be appealed is determined by taking into account the type of decision and the thresholds applicable for the relevant year.

Istinaf, the appeal to the regional court of appeal (bölge adliye mahkemesi), is the ordinary legal remedy through which decisions of first-instance civil courts are reviewed by that court as to the facts, the evidence and the law. The period for applying is, as a rule, two weeks from the proper notification of the decision; the type of decision and the monetary thresholds in the law must also be checked separately.

Arbitration is the binding resolution of a dispute by an arbitrator or an arbitral tribunal instead of a state court; it is mostly a route chosen by the parties through an arbitration agreement, while in some special fields the Constitution or a statute makes arbitration mandatory. The Code of Civil Procedure applies to disputes with Türkiye as the seat of arbitration where there is no foreign element, and Law No. 4686 on International Arbitration applies where there is one; Law No. 4686 also applies when chosen by the parties or the arbitrators. Only an action to set aside can be brought against arbitral awards subject to these two statutes.

The burden of proof is the rule that determines which party must bear the adverse consequence when a disputed fact remains uncertain. Unless the law provides otherwise, the party who derives a right in its favor from the legal consequence attached to the fact it asserts is obliged to prove that fact.

Capacity to be a party (taraf ehliyeti) is a person’s ability to be a claimant or respondent in a civil action. It is the procedural-law counterpart of the capacity to hold rights under civil law. Natural persons and legal entities recognized by law have capacity to be a party; special provisions may allow certain communities to be a party to a limited extent.

Compensation is the redress of the loss suffered by a person, usually by the payment of money, by the person who is legally held responsible for it. Liability mostly arises from a tort (Article 49 et seq. of the Turkish Code of Obligations) or from breach of contract (Article 112 et seq.); in certain cases provided by law, lawful conduct may also require compensation. Pecuniary damages cover the reduction in assets and the loss of earnings, while non-pecuniary damages compensate for the non-material harm arising from injury to bodily integrity or to a personality right.

A consumer transaction (tüketici işlemi) is a contract or legal act concluded between a consumer and a natural or legal person acting for commercial or professional purposes. What is decisive is not the name of the transaction but the status of the parties and the purpose for which the goods or services are acquired. Provisions specific to consumers on jurisdiction, applications, mediation and protection may apply.

A contract is a legal transaction formed by the mutual and corresponding declarations of intent of the parties. The parties may freely determine the content of a contract within the limits of the law. Contracts that violate mandatory provisions of law, morality, public order or personality rights, or whose subject matter is impossible, are null and void under Article 27 of the Turkish Code of Obligations (TBK); partial invalidity is assessed separately.

A contractual penalty (ceza koşulu) is a predetermined performance that the debtor undertakes to pay if the obligation is not performed at all or is not performed properly. To claim a valid contractual penalty, it is not necessary that damage has occurred; this institution secures performance. Its type, its relationship to the principal obligation, fault, excessiveness and special commercial-law provisions are examined in the specific case.

A court-appointed expert is a person who gives the court an opinion on matters whose resolution requires special or technical knowledge outside the law. The expert does not take the judge’s place, cannot make legal characterizations and cannot decide the outcome of the dispute. The report is evaluated by the court together with the other evidence.

Default is the fulfillment of the conditions required by law following the failure to perform a due debt properly and on time. In the debtor’s default, a formal notice (ihtar) is, as a rule, required; however, default without notice may arise in statutory exceptions, such as where the date of performance was fixed jointly. A creditor’s refusal to accept performance is also a separate type of default.

A defect of intent (irade bozukluğu) means that a party’s intent was not formed soundly when a contract was concluded, because of fundamental mistake, fraudulent misrepresentation or duress. When the statutory conditions are met, the affected party may declare that it is not bound by the contract. The statutory time limits for the declaration and for reclaiming what has been given must be monitored carefully.

Defective performance (ayıplı ifa) is the situation in which goods delivered, work carried out or a service provided do not have the characteristics agreed in the contract or those they should objectively have. The type of defect, the contractual relationship, the status of the parties, the duties of inspection and notification, and the elective remedies vary according to the applicable law.

Evidence (delil) is a means of proof that serves to convince the judge whether a fact (an event) disputed between the parties in a lawsuit is true. In civil procedure, instruments and other documents, oath, witnesses, expert examination and on-site examination are the principal forms of evidence; unless the statute makes a particular form of evidence mandatory, other evidence may also be used. Evidence obtained unlawfully cannot be taken into account by the court in proving a fact.

Force majeure is an extraordinary event that develops outside the debtor’s sphere of activity and operations and that could not be foreseen or prevented by reasonable measures. Not every difficulty counts as force majeure. How the event affects the contractual obligation is examined separately in terms of impossibility, adaptation, default and the allocation of risk in the contract.

Impossibility of performance (ifa imkânsızlığı) is the inability to perform the performance that is the subject of the obligation. The consequences of objective impossibility existing at the outset differ from those of impossibility that arises after the contract is concluded. If the impossibility cannot be attributed to the debtor, the obligation may come to an end; if the debtor is at fault, liability for compensation may arise. In partial impossibility, the consequence may arise only with respect to the affected part.

An interim injunction is temporary legal protection granted against the danger that, because of a change that may occur in the existing situation, obtaining the right will become significantly more difficult or impossible, or that serious harm will arise. It is not a final judgment; the conditions of prima facie proof, proportionality and security are assessed in the specific case.

A lawsuit (dava) is a request to a court for legal protection in order to safeguard a right or resolve a dispute, and the proceedings that begin with that request. In civil procedure, a lawsuit is deemed filed on the date the statement of claim is registered with the court. Depending on the nature of the claim, an action for performance, a declaratory action or a formative action may be brought; for the court to reach the merits, procedural prerequisites such as the availability of the judicial route, subject-matter jurisdiction, capacity to be a party and legal interest must be present.

Legal interest (hukukî yarar) means that the claimant has a current, legitimate and personal need for the legal protection requested from the court. Legal interest is a procedural prerequisite and is examined by the court on its own motion. The need for protection is determined according to the type of action and the specific case; the existence of another means of application does not, on its own, remove legal interest.

A mandate (vekâlet) is a contract for the performance of services, by which the mandatary undertakes to perform a task of, or carry out a transaction for, the principal. It is regulated in Articles 502 et seq. of the Turkish Code of Obligations (TBK); if there is a contract or custom, the mandatary is entitled to remuneration. The mandatary is obliged to follow instructions, to carry out the work, as a rule, personally and with loyalty and care, and to render accounts. The word is also used in procedural law for authority of representation (representation in a lawsuit) and for the power of attorney (vekâletname), and in public law for the temporary performance of a duty by another person.