Basic Concepts of Law-I

Basic Concepts of Private Law
Instructor: Doruk UTKU 1
Law: A set of legal rules giving a pattern of human behaviour in certain relationships in a
given society.
Elements of this definition:
1. legal rules 3. in certain relationships
2. giving a pattern of human behaviour 4. a politically organized society
(pre-condition of existence of law)
Rules giving a pattern of human behaviour

Moral (and customary) rules – Religious Rules – Legal Rules
Moral Rules and Customary Rules Legal rules

1. no sanction; only ‘social pressure’ and 1. sanctions by legal authorities
‘conscience’
2. only impose obligations 2. impose obligations and provide
enforceable rights
Note: Sometimes a moral or customary rule can be transformed into a legal one by the
‘law-maker’.
Example: Moral rule: Help your poor relatives.
Legal rule: Turkish Civil Code Art. 364 (1): ‘Everyone shall maintain his or her
ancestors and descendents, sisters and brothers that would suffer poverty unless he or she
provides help.’
Religious Rules Legal Rules

1. believed that they have been issued 1. human made rules
by the God (or Gods) and prophets
2. religious (imagined and believed) sanctions 2. legal sanctions in ‘lifetime’
‘after death’
3. ‘holly’ rules cannot be changed 3. legal rules can be abolished and
changed
4. only impose obligations 4. impose obligations and provide
rights
Note: In theocratic states, the law includes also religious rules; but in secular states, the law
denies religious rules to be applied to human relationships.
Characteristics of Law
1. It is a body of legal rules

2. It is binding guidance of human conduct. Law is prescription rather than a description of
human behaviour. So, it is a normative (pattern-setting, ordering) discipline.
3. Written (enacted) legal rules are imposed by a sovereign body (political superior in a
specific territory; in Turkey it is the parliament: Turkish Grand National Assembly).
Unwritten (unenacted) rules have practical applicability supported by official authorities,
especially by courts.
4. Law is supported (obedience guaranteed) by enforceable sanctions.
Sanction: An unpleasant consequence of violation of a legal rule or breach of a contract,

determined by the law itself and brought into life by the judicial and/or administrative bodies.
- Criminal penalties----------------------------------------------------------in criminal law
- Fines and other administrative sanctions--------------------------------in administrative law
- Constitutional sanctions----------------------------------------------------in constitutional law
Example: An enactment of the parliament inconsistent with the rules of the constitution is to
be declared void by the Constitutional Court.
- Compensations, maintenance (alimony, financial provision),
execution (sequestration, garnishment, execution of court orders),
bankruptcy---------------------------------------------------------------------in private law
Classifications of Law
Fields of Law
governing relationships between legal

persons= Private Law
- civil law
- business law
- international private law etc.
Municipal
Rules governing relationships between Law
individuals and public authorities (domestic
or between public authorities themselves rules)
= Public Law
- constitutional law
- administrative law
- criminal law etc.
governing relationships within the international

society i.e. relationships between states and/or
international organizations
= International Public Law
Note: According to the modern opinions,

sometimes relationships between an individual
and an international organisation are also
considered in international law.
Example: Procedural rules for individual
application to the Commission and the
European Court of Human Rights in
international law of human rights.
Note: These classical divisions and sub-divisions, which are beginning to be argued in
modern doctrine now, are not strict and absolute borders. A field of law is not an isolated part
of it, irrelevant with the other fields. Law fields usually overlap or at least must be in relation
with the others in practice. Such divisions are made only to have a clear exposition of the
body of law.
Functioning of the Legal Rules
Mandatory (imperative) rules: applied

regardless of the wishes of the persons Compulsory Law
Rules affected by them
Non-mandatory rules: applied unless

persons affected by them agree on Voluntary Law
otherwise
Mandatory legal rules (ius cogens in Latin) are rules aiming to protect social ethics, public
interests, personality, and social or economic weak (like consumers, labours, children).
Non-mandatory legal rules are in two types:

1. Some of them are ‘the rules of interpretation’, which are applied for understanding the
meanings of the sayings of a person, that are of legal importance (for example wording of a
contract made by the parties). They are the principles of interpretation of one’s words. These
rules are exercised, unless the parties themselves have described their own sayings.
Example: Turkish Code of Obligations Art. 75: ‘A time of performance of an obligation that
is fixed (by the parties) as the beginning or ending of a month, is to be understood as the first
or last day of the given month. The middle of a month that is fixed is to be understood as
fifteenth day of the month.’
2. The others are ‘the subsidiary rules’ introducing spare implied terms to fill the legal gaps
about possible conflict points in legal transactions, which have not been thought and filled by
the parties themselves before the conflict. These rules are to be exercised unless the parties
have agreed on otherwise in the contract. So, the parties can exclude them expressly.
Note: To decide whether a legal rule is mandatory or not, one must look at the wording of the
legislation firstly. There could be a clear expression like ‘unless the parties agreed on
otherwise’ or ‘in a case otherwise not expressed’ showing that the rule is not mandatory. If
there is not any, the general wordings of the legislation (like ‘can’, ‘may’ or ‘possible’) might
give a clue about the matter. If the wording is useless to find the answer; a lawyer must
consider the general system and aim of the legislation and look for the intention of the law-
maker lying behind the wording of the legislation, by interpreting the enactment.
Sources of Law
The Principal Sources
- Legislation: Written (enacted) law. There is a hierarchy in legislation:

1. Constitution (it is written in Turkish Legal System)
2. International Treaties Statutory
3. Codes and other acts (statutes) Law
4. Statutory Decrees (Decree-Laws) (Written
(by the Council of Ministers) source of
5. Regulations law)
6. Directives
6. Bylaws
- Customary Law: For a basic custom, there are three conditions to
become a customary legal rule. These are also the components of
customary law:
1. There must be a custom (repeating exercise of a certain way of Customary
behaviour in the society through a period of time)-- Continuity Law
2. There must be a common belief in the society that everyone must
comply with that custom.—opinio necessitatis
3. The belief in question must be shared by judicial and
administrative authorities providing that they would exercise this
custom as a legal rule and support it by sanctions. – State Sanction (Unwritten
Sources of
Law)
- Case Law: These are the judicial precedents in which the judge
issues a legal rule himself. For a judge to attempt to create a legal
rule about the conflict before the court, there are two conditions
must be fullfilled:
1. There must not be a rule in the legislation, about the conflict
mentioned.
2. There must not be a rule in the customary law, about the conflict Case
mentioned. Law
Under these circumstances a judge must create a legal rule
himself by acting in modo legislatoris (like a legislator would do).
That means, the rule created by the judge must not have a wording
only within the limits of the specific circumstances of the case
before the court, but have a general style of wording of a legal
provision, which is able to be applied to all cases alike.
Note: The principle modo legislatoris must not lead to a
misunderstanding. The legal rule created by the judge is not binding
out of the current case. Principally, such a rule is not compulsory
to the other courts and even to the court which has created the rule
itself.
The Subsidiary Sources
1. Books of authorities (doctrine): These are the writings of legal authors, whether academic
or not, explaining the meanings of legal rules and the right way of exercising the law. De lege
ferenda thoughts of the writers are also important to the legislator attempting to renew
legislation or to issue a draft of a completely new act. But in spite of their prestige, of course,
they are not binding to the courts.
2. Previous judicial decisions: Previous judgements can be a useful tool to explain the
meaning and way of exercise of a legal rule. Especially decisions of the Court of Cassation
(Supreme Court) are of special importance. Inferior courts generally pay attention to them and
usually have a tendency to comply with them in practice. However, (principally) previous
decisions of the Court of Cassation are not legally binding. There is one exception to this
principal: ‘Decisions of the General Assembly of the Chambers of the Supreme Court’ for
reconciliation of contradicting judicial opinions are legally binding to all chambers of the
Supreme Court and the inferior courts, until they are changed. Such decisions of the Supreme
Court aim to provide unison exercises of law all over the country.
Notes on the Sources of Law:
- Hierarchy in the written sources of law means: bylaws must accord with the regulations and
statutes; regulations must accord with the rules in statutes; and statutory rules must accord
with constitutional provisions. Bylaws and regulations in contradiction with statutes are to be
declared void by ‘the Council of State’; statutory rules in contradiction with constitutional
rules are to be declared void by ‘the Constitutional Court’.
- There can be no customary law or rule created by the judge in criminal law, because of the
principle ‘nullum crimen nulla poena sine lege’ (neither crime nor punishment without
legislation).
- The divisions ‘customary law – legal reference to custom’ and ‘case law – decisions of the
judge relying on his own discriminatory power referred by the legislation’ must always be
taken into consideration.
- In Continental European Law System, written sources of law (in their own hierarchy) have
priority to the unwritten sources of law, in contrast with Anglo-Saxon Law System. So,
customary law and ‘judge made law’ are to be applied only if there is a gap in the legislation
about the conflict before the court. There is an exception relating to the legal rules applicable
to commercial relationships: Turkish Commercial Code Art. 1 states: ‘Turkish Commercial
Code is an inseparable part of the Turkish Civil Code. Provisions in this code (Commercial
Code) or private provisions in any other act, about a transaction, act or business related with a
commercial establishment, or a factory, or any other undertaking working in commerce, are to
be called commercial rules. / In the lack of commercial rule about a commercial conflict, the
court shall apply commercial customs and in the lack of such a custom, general provisions (of
Turkish Civil Code and Code of Obligations).’ According to this statement, commercial
customs (not even customary law, an ordinary custom is sufficient) are to be applied before
the written legal rules of Civil Code and Code of Obligations.
Law Systems
- Islamic Law System
- Socialist Law System
- Anglo-Saxon Law System
- Continental Law System
Anglo-Saxon Law System

(Not Codified)
(Unwritten) Case Law: (Written) Statutory Law:

derived from judicial legal rules enacted by the
precedents (court decisions) parliament
Court decisions Court decisions

relying on relying on equity
traditions principles
Common Law Equity Law
Continental Law System

(Codified)
[Prior Source] Statutory Law Customary Law and Judicial Precedents

[Secondary Sources]
Codes Other Acts

-Civil Code
-Commercial Code
-Criminal Code etc.
Codification: Collection of the legal rules of a law field, exercised in different parts of a
country and which the national legal system is based on, to be enacted as one main statute that
is called ‘code’.
HISTORICAL BACKGROUND
In Continental Europe, most of the recent legal rules applicable to civil relationships in
different states have their origins in the Roman Law beside legal rules that are customary in
origin.
Roman Law, the most advanced and dominant one of the primitive law systems in pre-
Middle Age affected the conduction of legal relationships in the societies living under Roman
sovereignty because of the Roman invasion in Europe. After the destruction of Roman
Empire, some Roman legal rules remained to be applied to civil relations together with the
local customary legal rules that are in force in different parts of Europe in feudal system.
While the changes in the political structure were leading Europe away from feudalism,
in favour of monarchy; the notion of law was also altered into a political understanding,
leaving the historical and traditional one. According to this opinion the law cannot be derived
from history and public beliefs, but was simply the orders of the monarch; in other words, it
was without any boundary the will of who has political power in his hands. So a rule is to be
accepted as a legal rule, only if the monarch has enacted it. At the same time some schools of
law were emphasizing the importance of Roman Law to Europe and studying on it
systematically.
After the French Revolution, rising trends of nationalism and liberalism caused some
new opinions on law. There came some certain universal principles like protection of
personality and protection of property to be indicated in ‘constitutions’ that no lawmaker can
break by his enactments. On the other hand, the idea of nationalism forced governments to
unify the various legal rules (whether Roman or not) governing relationships in the society in
different territories of a country. Basically, the idea lying beneath the slogan “one Nation, one
Country, one King!” required “one Law”, to come into practice.
Lawyers detecting such rules and reconsidering them in the light of universal
principles of law have codified them to be enacted as the orders of the political sovereign.
Some famous examples resulted from the codification movement are ‘Algemeines Landrecht
für die Preussichen Staaten” (The General Law of Country for the Prussian States) in Prussia,
‘Code Napoleon’ (also known as ‘Code Civil’) in France, ‘allgemeines Bürgerliches
Gesetzbuch’ (General Book of Civil Law) in Austria, ‘Bürgerliches Gesetzbuch’ (Book of
Civil Law) in Germany and ‘Schwezerisches Zivilgesetzbuch’ (Swiss Civil Law Book) in
Switzerland.
In England, the history of law is not similar to the history of Continental European
Law. Since the Roman invasion could not be successful on the island of Britain, the
development of British political system had not been disordered by its Roman rival. So, the
Crown (as the central political power) had used to be usually accepted as the unbounded
superior of feudal authorities until ‘Magna Carta’ (the Great Charter). After the abolishment
of local courts which were administering local customary laws; the centralized ‘Royal courts’
(set up by the Crown and assumed jurisdiction over all country) started to administer the law
on behalf of the Crown holding the judicial power. Centralized practice of law led to the
unification of legal rules (some were ‘once’ local) in time without a need for codification. So,
the legal rules have become ‘common law’ to the whole country. Common law was being
derived from the traditions of public. To avoid the disturbingly unfair results of the
application of strict traditional rules in some cases, some judges (namely Court of Chancery)
were determining the law themselves in a specific context relying on the principles of law and
fairness (equity principles). Such decisions constituted ‘equity law’. Both laws are called
‘Case Law’ which means legal principles that came from the previous judgments, to be
applied in similar cases. This legal system of Case Law spread over the world through the
time of colonization i.e. United States of America, Australia.
Note: Today the term ‘common law’ is being used in a different way from its historical
meaning. This term indicates to the laws of the countries under the influence of Anglo-Saxon
Law System in contrast with the codified national laws that are parts of the Continental Law
System (misleadingly called ‘civil law system’) which has originated from Roman Law.
In relation with the changes in the political structure, increasing power of the two wings of the
parliament (House of Lords and House of Commons) caused the statutes to become another
prior source of law in Britain, constituted statutory law. House of Lords has also a historical
role remaining in the body of administration of law as the ultimate court of appeal.
Historical Background of Law in Turkey

The law of Ottoman Empire was generally a law system based on non-codified Islamic
rules. This structure of law started to change after the proclamation of the Edict of
Reorganization (Tanzimat Fermanı) in 1839. Depending on the principles of the Edict of
Reorganization some law reforms based on western law was introduced to the legal system.
However, the traditional Islamic rules and legal institutions remained.
After destruction of the Ottoman Empire, a law reform planned by the young Republic
of Turkey to have the standards of western legal systems. But, in spite of the strong political
will, the attempts to create a modern and original civil code became unsuccessful. Under these
circumstances the Ministry of Justice decided to receipt some statutes of the European states.
Reception of law: Adopting and enacting the legal rules that are or were in force in a foreign
state. Reception is usually based on the translations of foreign statutes with small changes,
which are necessary for that law to meet the requirements and common public beliefs caused
by the specific characteristics of the society.
Here is a general list of the codes and other acts adopted by the Republic of Turkey (Some of
them have been modified or completely changed in time): Civil Code and Code of
Obligations from Switzerland; Code of Execution and Bankruptcy from Switzerland; Code of
Civil Procedure from Switzerland; Commercial Code (partly) from Switzerland and Germany;
Criminal Code from Italy; some important acts of administrative law from France.
THEORY OF LAW
There are various ideas about the nature of law. These different opinions have been
expressed by some schools of thought:
‘Historical Law School’ describes the law as a result of historical traditions and
common public beliefs. According to this opinion, law has nothing to do with the intelligence
and power of the political sovereign.
‘Political Law School’ asserts that the law is just orders of the ruling political superior,
backed by sanctions practiced by political and judicial mechanisms under his command.
‘Natural Law School’ considers the law in two different contexts. Law in its first
meaning is the body of actual legal rules -imposed by the state- that are in force in a given
time and in a given society (positive law). The second meaning of law is an imagined
(utopian) law system, so far called ‘natural law’, providing everyone with perfect justice and
legal certainty. The school in question asserts that the law in the first meaning must always
accord with the demands of the latter, or at least strive to do so. Source of the ‘natural law’ is
subject of an argument. If one bases ‘natural law’ on theocracy, it is the orders of the God
opposing to the idea of secularism, which accepted human intelligence as the source of
‘natural law’. In either way, it is a fact that the concept of natural law is very flexible and it is
really hard to determine what the demands of the natural law are.
Note: One may not agree on the ideas of natural law school. But today there is an important
inheritance from this school in ‘legal language’: A lawyer complaining about some actual
legal rules in force, is called the one who is not comfortable with ‘de lege lata’ (unsatisfactory
law in force today). If the lawyer in question makes some suggestions for a future regulation,
such suggestions are called opinions for ‘de lege ferenda’ (desired perfect law of future).
Detecting the Relevant Applicable Law
The first step of applying the law to a legal problem or a conflict before the court is
finding the relevant legal rule to apply. Such a rule must be: 1. the legal rule that is in force to
apply for solving the problem; 2. the legal rule that can be applied in the territory of the court
which the conflict is before; 3. the legal rule that provides the appropriate remedy for the case.
1. Applicable Law by Time

A legal rule must be in force to apply. Status enacted by the parliament must be
published in the Official Gazette for enforcement. The date of entry into force is usually
stated by a specific article of the statute in question. If there is no such article, the enactment
comes into force by ending of the 45th day after its publication.
Statutes remain in force until they are repealed.
Note: But exceptionally some acts (for example acts of budget) might state a period of
enforcement themselves. At the end of the stated period of time, they automatically become
ineffective.
There are two ways to partly or completely ‘abolish’ an act: An article of a new
enactment might explicitly state that one or more (previous) statutes are partly or totally
repealed. This sort of repeal is called ‘express repeal’.
In spite of the lack of such a statement, if a contradiction between the new enactment
and a previous statute cause an impossibility of application for the latter, provisions of the
previous statute in contradiction with the new ones are considered revoked. This consideration
is called ‘implied repeal’.
Note: Legal rules in a repealed act can stay applicable to remaining legal relationships that
have started at the time of the previous legislation, unless such application does harm social
ethics or public interests protected by the provisions of the new enactment. This exception for
the rules that are not in force anymore, aims to provide the parties of the lasting relationship
with legal certainty. Specific regulations might also be made to provide remedies for
problems caused by changes in the legislation.
The problem of retroactivity of laws: Retroactivity of law is the ability of a piece of

legislation to apply as legal consequences of the events happened before the enactment of the
given piece of legislation. In Turkish Law, the principle of non-retroactivity of laws is
accepted generally because retroactivity is considered a dangerous aspect of law especially in
the contexts of legal certainty and human rights. Under some exceptional circumstances
retroactivity can be accepted. Some procedural rules may be retroactive, if the rules under
consideration govern the legal procedure better. Retroactivity of criminal laws is accepted,
only if the changes in question are in favour of offenders.
2. Applicable Law by Territory

Principally every enacted law can be in force only within the borders of the territory
where the law-maker is sovereign. This is so logical that rules enacted relying on a political
power are to be exercised where that political power is effective and not beyond. This
principle of law is called ‘territoriality of law’. But there are some exceptions.
Some legal rules of a national law are to be applied by foreign courts to some legal
problems of people who have that nationality, wherever they go in the world. Such rules
(indicated by the international private law rules of the foreign state which’s courts are to
decide about the conflict) are considered applicable in some specific cases in that state
because of the citizenships or domiciles of the parties of a relationship. The rules in question
are usually the ones about personality, family relationships and inheritance.
Some other foreign legal rules are to apply to the conflicts about a contractual
relationship because of the wills of the parties of that contract. Principally parties of a contract
may choose a foreign law to govern their contractual relationship, no matter what their
nationalities are or where they contracted with each other.
There is another exception regarding criminal responsibility of citizens in criminal
law. Courts of a state are entitled to exercise their jurisdiction within their territory over acts
committed by their citizens outside their territory. Besides, all states have jurisdiction over
offences against international law and order, like genocide.
3. Applicable Law by Meaning

To find the relevant legal rule for a case to apply and correct legal solution of the case,
one must search for the right meaning and aim of the rule in relation to a given set of facts
that have been proved in the case. The mental activity to find this meaning out is called
‘interpretation’.
Interpretation: may simply be described as ‘a search for the real intention of the legislator
lying behind the wording of the statute (the ratio legis)’. It is a tool to apply the ‘right’ legal
rule in the ‘right’ way.
Legislation Reference (Parliament’s

resolution): If the interpreter is the
legislator himself. In this system of
interpretation, the legislator himself must
be consulted to learn his real intention.
Result of such interpretation is binding to
the courts like legislation because it is
issued by the legislator. It is impractical
because of the large bodies of modern
legislatures. Besides, this system of
.interpretation is against the principle of
‘separation of powers’, as it gives the
legislator the power of applying law to
particular circumstances like a judge. So,
this kind of interpretation is an undesired
one today.
Interpretation Interpretations by doctrine: Legal

(Depending on rules can also be interpreted by legal
the ‘interpreter’) authors in their writings. Such
interpretations of legal rules can be an
important reference to the legal
practise; however, they are not
binding to the courts.
Judicial Interpretation: Interpretation

of legal rules by judges that are to
decide about the legal conflicts before
courts. Such interpretations are of
special importance as judicial
precedents. But they are not binding
with the exception mentioned above
(decisions of the General Assembly
of the chambers of the Supreme
Court).
Grammatical Interpretation: The method of

interpretation, which concentrates upon the
wording of the statute and construes it narrowly.
This method of interpretation examines the real Literal
intention of the legislator upon the supposition that Approach
he has given the perfect expression to his will. As
this supposition is not always true, grammatical
method of interpretation may lead the interpreter to
wrong results.
Logical Interpretation: In this method of

interpretation, the interpreter may construe an
obvious grammatical or verbal mistake in the
Interpretation statute to give it a clear meaning. Moreover, he
(Depending on may use some rules of logic, like ‘argumentum a
Contextual
the ‘method of contrario’ and ‘argumentum a fortiori’ (a type of
analogy), to find an implicit meaning in the Approach
interpretation’)
statute. One must pay attention that all results of
the logical interpretation must always comply
with the general system and aim of the whole
enactment.
Historical Interpretation: The interpreter
examines the meaning of the wording of statutes
and tries to find the intention of the legislator in
the light of settings, papers and circumstances of
their promulgation in history. He must examine
drafts, bills and parliamentary debates on the
statute in question.
Teleological Interpretation: In this method of

interpretation, the interpreter may seek out a Objective
meaning broader than the real intention of the Approach
legislator at the time of promulgation, in contrast
with the historical interpretation. This kind of
interpretation gives the interpreter an opportunity
to assign a present purpose and function to the
legislation, which the legislator did not really
intend in the history. So, a piece of legislation
might have an ability to meet the present legal
problems caused by the changes in technology,
economy, social structure and politics. But it is
important that a teleological interpreter is always
bounded with the wording of the statute interpreted
and cannot go beyond it.
The literal rule: When the wording is

clear and unambiguous, it must be
understood in its literal and
grammatical meaning. Even if this
understanding leads to a wrong result,
there is no room for an interpretation
changing the literal meaning of the
wording of statute. Literal
Interpretation The golden rule: When the ordinary Approach
(IN ANGLO-SAXON LAW) meaning of expressions of a statute
(Depending on the taken as a whole results in some
‘method of inconsistency, absurdity, inconvenience
interpretation’) or repugnance, the interpreter may
depart from this meaning as far as it is
necessary to correct it but not further.
Principles of interpretation: These are

the principles of law and logic: 1. Penal
Statutes should be interpreted in favour
of the offenders. 2. Expressio unius est Contextual
exclusion alterius (the expression of Approach
something, excludes anything else) 3.
Ejusdem Generis (of the same genus) 4.
Ut res magis valeat quam pereat (let the
things stand rather than fall) etc.
The mischief rule: The interpreter

compares the current statutes and the
rules of common law that are in force
before the enactment of the statute in
question and tries to find the intention of
the legislator by answering these
questions: 1.What was the common law
before the act? 2.What was the mischief,
for which the common law could not Objective
provide an appropriate remedy? 3.What Approach
remedy the Parliament wanted to cure the
disease of the common law? 4. What (Not
was the reason of the remedy? An common in
interpreter, who found the answers, must Anglo-Saxon
interpret the statute so as to remedy this Law)
mischief.
Historical interpretation: Apart form
the mischief rule, the interpreter
examines the documentation in respect of
the history of a statute. Not common in
traditional British law. But now it is
generally accepted in relation to EU
legislation.
Court practice: The golden rule

Where the meaning of words in a statute, if strictly applied, would lead to an
absurdity, the golden rule is that the courts are entitled to assume that Parliament
did not intend such absurdity, and they will construe the Act to give it the
meaning which Parliament intended.
So, for example, the Offences Against the Person Act 1861 provided that
‘whosoever being married shall marry another person during the life of the former
husband or wife’ is guilty of bigamy.
Interpreted literally, this definition is absurd on two counts.
First, the phrase ‘shall marry another person’ is meaningless in the context, as
the essence of bigamy is that a married person cannot marry again while his first
marriage subsists.
Secondly, the reference to a ‘former’ husband or wife is quite inappropriate.
The word ‘former’ suggests that the original marriage no longer exists, but if that
were the case the person marrying again would not be guilty of bigamy.
Despite the slipshod draftsmanship of the Act, however, the intention was clear,
and the courts have interpreted the relevant section as meaning that a person
who purports to marry another while his or wife or husband is still alive is guilty of
bigamy.
Explanatory Interpretation:
If the meaning achieved as
result of the interpretation is
same with the wording of
the statute.
Interpretation Broad Interpretation: If the

(Depending on meaning achieved as result
the ‘result of of the interpretation is
interpretation’) broader than the wording of
the statute.
Strict Interpretation: If the

result of the interpretation
narrows the literal and
grammatical meaning of
the wording of statute.
. LAW OF PERSONS
Law of Persons: The branch of private law, governing the legal personal status and protection
of personality.
Capacity to have rights (Capacity for rights)

CAPACITY Capability of an entity to own the legal rights.
Capacity to legal acts (Capacity to act)

Capability of an entity to exercise/claim legal
rights and make legal transactions that can have
binding legal results.
Note: The term ‘capacity’ usually refers to the second one (‘capacity to act’) in Turkish Law.
Capacity to have rights and ‘Person’ in Legal Sense

Legal Person: Any entity that has general capacity to have legal rights is accepted as a
‘person’ in legal sense. Human being is not necessary. They are called ‘legal persons’.
Legal Persons
_ Natural Persons _ Juristic Persons (Artificial Persons)

Human Beings (1) Some associations of natural
Today, every human being is and/or juristic persons have a
considered a legal person, which means common purpose or interest;
each of them has capacity for rights (2) some funds or properties allocated
generally and equally. to a specific activity or purpose,
accepted as legal persons by law.
Limitations on the capacity for rights of

Limitation on the capacity of
natural persons:
juristic persons:
(1) Rights that can be owned by
Ultra vires: Capacities of juristic
persons only at a specific age.
persons are limited by specific
(2) Forbidden transactions of minors
objectives of establishment. A
and persons under guardianship
juristic person is not entitled to
(donation, making guarantee,
make transactions or to have legal
establishing foundation).
rights irrelevant to its objectives.
(3) Limitations depending on gender.
(legal rights that can be owned by only
Note: The principle ‘ultra vires’ is
males or only females)
beginning to be argued in the
(4) Convicts.
modern doctrine and there are some
(5) Aliens.
opposing opinions in favour of or
against this principle.
Associations Foundations: Funds or properties

allocated to achieve specific (and usually
social) purposes and specifically
registered as foundation.
Business Associations: Classified by Societies: Groups of natural and/or juristic

the commercial code. All business persons united to make common effort to
associations are considered achieve specific social purposes or pursue
‘merchants’. common (non-profit) interests satisfying
shared personal needs or larger needs of the
community.
Personal Companies Capital Companies

- General Partnerships - Corporations
- Limited Partnerships - Limited Liability
Companies
Notes on Juristic Persons:
1. Distinct personality of Juristic Persons: Juristic persons are foundations or ‘incorporated

associations’ that have corporate personalities distinct from those of its founders, members or
shareholders.
2. Unincorporated associations: Every association cannot be accepted as a legal person. An

association must be endowed with independent legal personality by law, to be accepted as
‘person’ in legal sense. If not, it is only a group of individuals in the eye of law, whether
organized or not. The latter is called ‘unincorporated association’. In Turkish Law, ‘ordinary
partnerships’ are unincorporated associations that have no independent personality and
partners would individually have joint tortious and contractual liabilities.
3. Political parties, trade unions and employers’ associations: These are special types of
associations and in Turkish Law they are also juristic persons. But statuses of such persons
are regulated specifically by different statutes in Constitutional Law and Labour Law.
4. The doctrine ‘Ultra Vires’: The principle limiting capacity of a juristic person. The powers
delegated to a juristic person by its founder or founders are stated in its ‘memorandum’ or
determined by the objects of the juristic person in question. Legal acts in excess of these
powers will be ineffective to bind it. In Turkish legal doctrine, there are various opinions on
the nature of ‘ultra vires’. According to some authors it is a limitation of capacity for rights; to
others opposing the first opinion, it refers to a limitation on capacity to act.
5. Public Corporations: Public corporations -like municipalities- are also juristic persons
exercising public power, and they are supervised and/or controlled by the government. But,
unlike private corporations, their statuses are subject to public law, not private law.
Capacity to Act
Capacity to act is a term that has double meaning. It means, on one hand, capacity to enter
into a legally binding agreement or make a valid legal transaction (capacity to contract), on
the other hand, capacity to be liable in tort (capacity for tortious liability).
Degrees of Capacity to Act
FULL LIMITED LIMITED FULL

CAPACITY CAPACITY INCAPACITY INCAPACITY
minors under
custody or
Majority + interdicted incompetents
competence persons (adults (minors or
persons to whom
(mental ability to under adults without
a statutory
Who are them? make reasoned guardianship or the mental
advisor is
decisions) + not custody) + ability to make
appointed
under competence reasoned
guardianship (mental ability to decisions)
make reasoned
decisions)
Not liable
(Except in
Liability in tort Fully liable Fully liable Fully liable
necessary cases
due to equity)
Act through legal
representatives or
on their
permissions or
with their
ratifications
Act through
act on (Exceptions:
legal
permission or  Fully
Contractual Act by themselves representatives
with ratification Beneficial
liability / Full liability (parents or
by statutory transactions
guardians
advisor  Enjoyment of
[curators])
rights closely
and directly
attached to
personality
 Prohibited
transactions)
Full Capacity:
1. Majority: legal majority (at the age of 18/age of majority) ------ Art. 11 of Civil Code
majority by court decision (‘emancipation’)---------- Art. 12 of Civil Code
[at the age of 15 +
approval of the parent(s)]
majority through marriage ----------------------------- Art. 11/II of Civil Code
2. Competence (sound of mind): Mental ability/capacity that is necessary to act reasonably;

ability to make reasoned decisions to handle the legal affairs.
Incompetents (reasons of unsoundness of mind):
(a) Infants
(b) Persons (minors or majors) who suffer mental deficiency or infirmity
3. Not being ward (interdicted and under guardianship):

Legal grounds for full interdiction (Art. 405-8 of Civil Code): (for persons at the age of
majority or emancipated minors) (For limited interdiction see Art. 429 of Civil Code)
1. Mental infirmity (illness)
2. Mental deficiency (insufficiency)
3. Extravagance
4. Addiction
5. Insufficient self-care
6. Insufficient care for property
7. Imprisonment more than one year
8. Voluntary interdiction (individual’s own will for interdiction because of old age, or
disability, or consistent illness or inexperience, results in insufficiency in taking care of
personal business)
Legal Protection of Personality
Personality: Life, capacity, right of physical and mental integrity, health, freedom,
name/surname, social reputation, self-respect and privacy.
Protection of personality against tort: Personality of an individual is also protected against the
unlawful actions of others (Art. 24 of Civil Code). Such a person has right of action against
the tortfeasor. Art. 25 of Civil Code provides special remedies available to one who suffers
from a tort against his personality. Claims available to be made in a case of tort against
personality are:
Note: Injunctions are orders of court (especially to a defendant) that might be either
mandatory (commanding something to be done) or prohibitory (forbidding something to be
done)
Ouia timet injunction: An injunction may be sought by the plaintiff, not only where a wrong
has already been committed, but also where there is a clear likelihood that it will be
committed unless restrained by a prohibitory injunction. Such injunctions are called ‘quia
timet injunctions’
Example: Person (A) learns that author (B) working for a famous journal is about to
publish an untruth that will possibly harm his social reputation. (A) should take an action and
claim a quia timet injunction prohibiting (B) from publishing the untruth.
Mandatory injunction: Court order addressed to the defendant to end his current action that
has been considered a tort against personality.
Declaration of Illegality: Judicial declaration expressing that an action has been considered
unlawful by the court. Such declarations are usually published or notified to specific
individuals to wipe out the remaining harmful effects of the tort in question.
Damages: Decision for compensation awarded by the court to recover the damage suffered by
the plaintiff. Damages could be compensatory for ‘material damage’ (like physical injury) or
aggravated (material damages + moral damages) for ‘moral damage’ (emotional injury,
psychological suffering).
Note: Legal reasons annihilating right of action against actions harming personality (Art. 24/II
of Civil Code):
1. Superior public interest
2. Superior interest of individual
3. Consent of the person suffered

4. Legal authorisation
Protection of personality against legal transactions: No person shall sacrifice his freedom or
make a contract illegally or immorally restricting his/her freedom. No person shall sacrifice
his/her capacity or make promises illegally or immorally restricts his/her rights of personality.
Legal acts violating these legal rules are considered void. (Art. 23 of Civil Code and Art. 19
and 20 of Code of Obligations). Protection of personality against legal acts are also called
‘protection of personality against oneself’.
II. FAMILY LAW

Engagement: The first step of couples towards marriage. Mutual promises of a male and
female to marry each other in future. The promises can be made orally or written.
Consequence of engagement: The fiancées become obliged to marry in future. But
engagement is not an enforceable contract. Therefore, no fiancée has right of action to claim
an injunction commending the other fiancée to marry.
Discharge of engagement: Either party of the engagement may any time discharge it.
Consequences of discharge of the engagement:
(1) Each (former) fiancée shall return the gifts (except the common ones) given by the other
fiancée or his/her parents (or persons who acted like parents in the absence of them).
(2) Unjustified discharge of engagement or actions of a fiancée justified discharge of the
engagement by the other one might result in compensation for recovering expenses and/or
financial damage towards marriage and/or emotional suffering.
Marriage:
I. Legal conditions for a valid marriage:
(1) Capacity to marry:
a) Age: Mentally competent persons (persons who are of sound of mind) at the age of at least
17 have the right to marry (legal age of marriage). Under exceptional circumstances
necessitating marriage, courts may grant permission to minors at the age of 16 to marry
(exceptional age of marriage).
b) Approval (Consent) of the parent(s): Competent minors under custody or competent minors
or interdicted persons under guardianship need approvals of their parents or curators (as
permission before marriage).
(2) Absence of the ‘legal barriers to marry’:

a) Already existing marriage: Married persons shall not
marry with another one during their marriages.
b) Prohibited degrees of relationships (Consanguinity):

Close relatives (ascendants, descendants, sisters and
brothers, aunts/uncles and nephews) cannot marry each Barriers with
other. Former wives and husbands cannot marry each permanent effect
other’s ascendants and descendants. result void
marriage
c) Adoption: A person adopted another one cannot marry his
adopted child. Besides, they cannot marry with each others’
descendants and (former) wives or husbands.
d) Permanent Mental Illness: Persons suffering permanent

mental disorder cannot marry, unless it is understood that
illness in question is not hereditary.
e) Unsoundness of mind: Permanent mental incapability

Barriers with
f) Waiting period for females: Women whose marriage has temporary effect
ended due to divorce, annulment or death of the husband principally cannot
cannot marry again before the expiration of 300 days after affect an existing
the ending of the marriage. marriage (but
might cause the
g) Contagious Diseases: Some contagious diseases stated by marriage to
laws constitute barrier to marry till they are cured. become
‘voidable’)
(3) Celebration of Marriage (Ceremony): For a valid marriage the male and female must
indicate their mutual intentions to marry orally and at the same time before an official
(normally metropolitan or district mayors) who is authorized to conduct marriage ceremonies.
Otherwise the marriage (!) is considered ‘null’. Absence of the other phases of the ceremony
(witnesses, or the official’s final declaration for marriage) does not affect the existence or
validity of the marriage.
II. Legal Obligations of Married Persons Generally:

- Faithfulness to each other - helpfulness to each other - care of each other and children
- financial support to marriage
III. Dissolution of Marriage:

(1) Null marriages: (a) if the married ones are of the same genders or (b) any of them did not
indicate his/her intention to marry orally and (c) before an authorized official, the marriage
never exists. There is no need of a judicial decree annulling the marriage (!).
(2) Annulment of void and voidable marriages: Both void and voidable marriages need a
judicial decree of annulment to be finished, unless the married couple divorce. Therefore,
void and voidable marriages are treated like valid marriages and have the same legal
consequences with theirs, till ended by a court.
(a) Void Marriages:
Reasons of void marriages: -- Bigamy (the bigamous marriage is considered void)
-- Marriage between close relatives (prohibited intermarriage)
-- Marriage between an adopted and the one who has adopted
him/her or between a descendent or former wife/husband of
one of them and the other.
-- Marriage of a person suffering permanent hereditary mental
illness
-- Unsoundness of mind at the time of marriage ceremony
Action for annulment of a ‘void’ marriage can be taken by every individual, who has an
interest in invalidity of the marriage and the public prosecutor concerning the public interest.
There is no limitation of time to take action to end a void marriage. But there are specific
legal provisions limiting the right of action to annul such a marriage under certain legal
circumstances (See Art. 147 of Civil Code).
(b) Voidable Marriages:

Reasons of voidable marriages: -- Temporary mental disorder at the time of the marriage
ceremony, caused incapability of giving a valid consent
-- mistake, misrepresentation, non-disclosure (concealment)
or duress induced to marry
-- absence of the required permission of the parent(s) or the
curator (guardian).
Note: Unlike the ordinary legal transactions, effects of a vitiated consent by mistake,
misrepresentation, nondisclosure or duress, on validity of the marriage are limited by law.
(1) Mistake must be about identity or essential characteristics of the wife/husband, or nature
of the ceremony; (2) Deceit (Fraud: misrepresentation and/or non-disclosure) must be about
honour or sexual integrity of the wife/husband, or an illness suffered by the wife/husband that
is considerably dangerous to the person married and/or their common (future) descendants;
(3) Duress must be a threat to honour or sexual integrity, or life, or health of the married one
or one of his/her close relatives or beloved friends (threats to property cannot cause
voidability of marriage),
to adversely affect validity of the marriage.
Action for annulment of a ‘voidable’ marriage can be taken (1) by the wife or husband, whose
temporary incapability was under consideration, or consent has been vitiated by mistake,
misrepresentation, nondisclosure or duress, against the other one; or (2) by the parent(s) or the
curator (guardian), whose required permission has not been acquired before the marriage,
against the wife and husband.
There are certain limitations on the rights of action:
(1) Right consuming periods of time: Action can be taken by the wife or husband within six
months from the date the truths understood or duress ended, or five years from the celebration
of marriage.
(2) Pregnancy: Action can be taken by the parent(s) or the curator till the wife gets pregnant.
(3) Age or end of interdiction: Action can be taken by the parent(s) or the curator till 18 th
birthday of the ‘minor’ (!) in question or end of the interdiction of the major under
guardianship.
Divorce: Legal grounds for divorce:
Note: Some incidents constitute ‘sole grounds’ for divorce, which means no ‘intolerability of
the marriage’ is required beside any of them, to end the marriage. Others are the facts, which
may cause the marriage to be ended only if the intolerability (of the marriage) sprang from
them, has been proved.
a) Adultery: Adultery is a sole ground for divorce. The petitioner, who proves the alleged
adultery before the court will be able to divorce, without a need to satisfy the court of the
intolerability of his/her marriage (in contrast with English Law).
b) Attempt against life: Wife or husband may take an action to divorce, against the other,
who intentionally tried to murder her. It is a sole ground for divorce; therefore, there is no
need to prove the intolerability.
c) Ill treatment or abusive conduct: Ill treatment means violence or pressure harms physical
or psychological health of the wife or husband. Abusive conduct means behaviour harms
honour and self-respect of the wife or husband. But ill treatment or abusive conduct must be
considerably severe to constitute a ‘sole ground’ for divorce.
d) Crime or dishonourable life-style: Committing to crime or having a degrading way of
life, by wife or husband, that affects personality and/or social reputation of the other one
constitutes a ground for divorce. But, as it is not a sole ground, the petitioner must also prove
intolerability of the marriage, caused by the crime commitment or the degrading way of life.
e) Desertion: Cohabitation (living together as a family) is one of the most important legal
obligations of spouses. Wife or husband may sue the other one, who left him or her with an
intention to avoid performing the legal obligations caused by the marriage, for divorce.
Desertion is a sole ground for divorce; but for success, certain legal conditions must be
fulfilled: (1) Desertion must have lasted at least for six months. (2) Wife or husband, who
wants to take action relying on this ground, shall apply the court for issue of a judicial
notification, warning the other one, that he or she shall be back to the family life in order to
prevent the other’s right of action. (Such an application will be acceptable, only if at least four
months passed after the desertion) (3) At least two months must have been passed after the
notification.
f) Mental infirmity: A mental illness constitutes a ground for divorce, only if it cannot be
cured and causes the marriage to be intolerable to the other spouse. So, it is not a sole ground
for divorce.
g) Irretrievable breakdown of the marriage: Collapse of the matrimonial relationship
between the wife and husband. Since it is the ‘general ground’ for divorce, various incidents
(that cannot be presumed theoretically) might cause this ground to exist. It is not a sole
ground. Therefore, the wife or husband, wants to divorce relying on this ground, must prove
the intolerability of the marriage.
h) Agreement between the wife and husband: The spouses may agree to divorce and on the
legal results of the desired divorce, only if at least one year has passed after the celebration of
the marriage (they must have been married with each other for at least one year). To divorce,
such an agreement shall be submitted to the court by both spouses for acceptance, or shall be
made during the judicial proceeding before the court.
i) Continuous Separation: (1) There must have been an unsuccessful action taken to divorce.
(2) At least three years must have been passed after denial by the court. (3) The family life
could not have been recreated through this period. (4) One of the spouses must take an action
to divorce relying on this ground.

Basic Concepts of Law-I

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Basic Concepts of Private Law

Instructor: Doruk UTKU 1

Rules giving a pattern of human behaviour

Moral Rules and Customary Rules Legal rules

Religious Rules Legal Rules

1. It is a body of legal rules

Sanction: An unpleasant consequence of violation of a legal rule or breach of a contract,

governing relationships between legal

governing relationships within the international

Note: According to the modern opinions,

Mandatory (imperative) rules: applied

Non-mandatory rules: applied unless

Non-mandatory legal rules are in two types:

- Legislation: Written (enacted) law. There is a hierarchy in legislation:

The Subsidiary Sources

Notes on the Sources of Law:

Anglo-Saxon Law System

(Unwritten) Case Law: (Written) Statutory Law:

Court decisions Court decisions

Common Law Equity Law

Continental Law System

[Prior Source] Statutory Law Customary Law and Judicial Precedents

Codes Other Acts

Historical Background of Law in Turkey

Detecting the Relevant Applicable Law

1. Applicable Law by Time

The problem of retroactivity of laws: Retroactivity of law is the ability of a piece of

2. Applicable Law by Territory

3. Applicable Law by Meaning

Legislation Reference (Parliament’s

Interpretation Interpretations by doctrine: Legal

Judicial Interpretation: Interpretation

Grammatical Interpretation: The method of

Logical Interpretation: In this method of

Teleological Interpretation: In this method of

The literal rule: When the wording is

Principles of interpretation: These are

The mischief rule: The interpreter

Court practice: The golden rule

Interpretation Broad Interpretation: If the

Strict Interpretation: If the

Capacity to have rights (Capacity for rights)

Capacity to legal acts (Capacity to act)

Capacity to have rights and ‘Person’ in Legal Sense

_ Natural Persons _ Juristic Persons (Artificial Persons)

Limitations on the capacity for rights of

Associations Foundations: Funds or properties

Business Associations: Classified by Societies: Groups of natural and/or juristic

Personal Companies Capital Companies

Notes on Juristic Persons:

1. Distinct personality of Juristic Persons: Juristic persons are foundations or ‘incorporated

2. Unincorporated associations: Every association cannot be accepted as a legal person. An

Degrees of Capacity to Act

FULL LIMITED LIMITED FULL

2. Competence (sound of mind): Mental ability/capacity that is necessary to act reasonably;

3. Not being ward (interdicted and under guardianship):

Legal Protection of Personality

3. Consent of the person suffered

II. FAMILY LAW

(2) Absence of the ‘legal barriers to marry’:

b) Prohibited degrees of relationships (Consanguinity):

d) Permanent Mental Illness: Persons suffering permanent

e) Unsoundness of mind: Permanent mental incapability