Legal Glossary

Mediation is a dispute resolution method in which the parties to a dispute try to reach their own solution through negotiations led by an impartial and independent third person who has received specialized training. The mediator does not issue a binding decision; the mediator facilitates communication between the parties and, under Law No. 6325, may also make a proposal if the parties cannot reach a solution. It is, as a rule, voluntary; however, in certain employment, commercial, consumer and lease disputes, recourse to a mediator before filing a lawsuit is a procedural prerequisite.

A petition (dilekçe) is a document by which a person communicates a request, objection or complaint in writing to a court, an enforcement office or an administrative authority. In the written procedure, the statement of claim, statement of defense, reply and rejoinder define the framework of the claim and the defense; in the simplified procedure, a reply and a rejoinder cannot be filed. The elements a petition must contain are listed in the relevant statute; a petition that is incomplete, addressed to the wrong authority or filed after the deadline may lead to a loss of rights.

A preclusive period (hak düşürücü süre) is a period within which a right can be exercised and upon whose expiry the right itself comes to an end. Turkish law has no general statutory definition of it; these periods are mostly provided for in special provisions of statutes such as the Turkish Code of Obligations, the Turkish Civil Code and the Turkish Commercial Code, and, according to legal scholarship, may also be agreed by contract. According to settled practice, the judge takes this period into account ex officio; in this respect it differs from the statute of limitations in the law of obligations, which the debtor must invoke.

Procedural capacity is a person’s ability to conduct a civil action on their own behalf and to perform procedural acts validly. It is connected with capacity to act under civil law. Persons who lack procedural capacity act in the action through their legal representatives.

A procedural prerequisite (dava şartı) is a procedural condition that must exist for the court to be able to examine the merits of the dispute. The court examines procedural prerequisites on its own motion at every stage of the proceedings. If the deficiency is capable of being remedied, a firm deadline is given for it to be completed; if it is not or cannot be remedied, the action is dismissed on procedural grounds without a decision on the merits.

Substantive res judicata is the binding effect that a formally final judgment produces between the same parties with respect to the same cause of action and the same relief sought. That the same action has not previously been decided by a final judgment is a procedural prerequisite; the court takes this obstacle into account of its own motion.

Service of documents (tebligat) is the formal notification procedure by which a document that will produce legal consequences, such as a court decision, petition, payment order or formal notice (ihtar), is delivered to its addressee in the manner and form prescribed by law, and by which that delivery is documented. Judicial authorities, public administrations, bar associations and notaries generally serve documents under Law No. 7201 on Notification through the Turkish postal service (PTT), through an official, or electronically. Many statutory time limits run from the date of proper service.

Simulation (muvazaa) is where the parties, in order to mislead third persons, enter into an apparent transaction that does not correspond to their real intention. In absolute simulation (mutlak muvazaa) there is no other transaction behind the apparent transaction; in relative simulation (nisbî muvazaa), however, behind the apparent transaction there is a hidden transaction that the parties really want.

The statute of limitations (zamanaşımı) is the institution that gives the debtor a defense of refusing performance if a claim is not asserted within the period set by law. It does not terminate the debt automatically and, as a rule, is not applied by the judge ex officio. The start, suspension and interruption of the period and special periods are examined separately for each claim.

Subject-matter jurisdiction (görev) is, as regards the civil proceedings addressed in this entry, the procedural rule that determines which type of court will hear a civil-law dispute. The rules on subject-matter jurisdiction relate to public policy; the parties cannot change the court with subject-matter jurisdiction by agreement. The court assesses on its own motion, at every stage of the proceedings, whether it has subject-matter jurisdiction.

Suretyship is a security contract by which the surety undertakes personal liability for the consequences of the debtor’s failure to perform its debt. The contract must be in writing; the maximum liability amount, the date of the suretyship and, if joint and several suretyship is undertaken, that designation or an expression with the same meaning must be indicated in the surety’s own handwriting. Spousal consent and the statutory exceptions are examined separately.

Territorial jurisdiction is the procedural rule that shows in which court, geographically, an action is to be filed once the type of court with subject-matter jurisdiction has been determined. The court with general territorial jurisdiction is, in most cases, the court of the defendant’s place of residence; however, special or exclusive jurisdiction rules may exist for contract, tort, immovable property and consumer disputes.

A tort is an event that gives rise to liability for compensation where damage is caused to another by an unlawful and faulty act. In general liability, an unlawful act, damage, fault and an adequate causal link are required. Cases of no-fault liability and of liability for hazardous activities are subject to special provisions.

Unjust enrichment is a person’s enrichment, without a justified legal ground, at the expense of another’s assets or labor. Transfers based on a ground that is invalid, did not materialize or later ceased to exist may be reclaimed. The scope of restitution may vary depending on the good or bad faith of the enriched person.