INTRODUCTON TO LAW

 The measures taken by the State to make

persons comply with legal norms
 rules of conduct which are supported by
sanctions applied by the State.
 The compulsory measures taken by the State
against those who have violated legal norms
 only legal norms are supported by the state ‘s
power of sanction.
 criminal (punishment)
 civil(e.g.,compensation)
 administrative ( e.g revocation of license)

◦ An injuction also be regarded as a sanction ( It is an

order of the court restraining a person from doing
something injurious to another’s interst or
commanding something to be done for the
protection of another’s interest. The injunction is a
legal remedy available in disputes between private
individuals as well as between the private individual
and public authoritiy).
 Common Example of Sanction: Punishment
◦ The law defines certain types of violations of the
social order as crimes and provides for the
punishment of the offenders by the State.
 Fine
 Imprisonment

(inflicted on a person for a crime (offense) comitted by

him/her,or for his/her failure to perform a duty
prescribed by law)
 Another type of sanction: Compensation
◦ If a person inflicts damage (whether material or
immaterial) upon another person, or his property,
he is legally liable and will have to rectify
his wrongful act by paying the injured
party an amount of money determined
by the Court.
 legal wrongs: criminal and civil wrongs.
 The law redresses injures committed against
persons and property in two ways:
◦ criminal prosecutions where the state punishes
those responsible for causing harm or loss to
another in a way forbidden by the law
◦ civil law actions,where the injured party brings a
private suit for damages.
 Criminal cases--- criminal court
 Civil cases---- civil court
 legislative organ decides the appropriate
sanction, whether wrongdoer should be
punished criminally or by making him/her
pay damages to the victim for the harm
caused by his/her strongful act.
 By same act a person commit both a criminal
and civil wrong
◦ Example: Car accident
 Another types of Sanction: Nullity

◦ First category: an act that is contary to a certain

statory provision is absolutely inopertative
(without effect) from the begining (kesin
hükümsüz;batıl).
◦ Second category ,acts are not automatically
inoperative from the beginning ;they are only
voidable acts (iptal edilebilir).
 NULLITY- First category:
◦ A legal act is absolutely null and void ab inito (from the begining)
◦ In such case,the parties have been unsuccesful in bringing about
the desired result because they have failed to follow some rule or
to fulfil some requirement imposed by law.
◦ For example , certain transactions must be made according to
specific procedures (formalities) laid down by law. If such a
transaction fails to comply with these formalities,it will be void
from the [Link] act is regarded as “dead” from the
beginning and cannot have legal effect.
◦ (Marriage-ceremonial contract- authorized person .
 Failure to obey this rule has the following legal consequences:
 the man and women will not be considered to be married,
 if they have children these will be considered illegitimate
(born out of wedlock).
 If one or them dies ,the surviving partner will not have the
legal right to inherit.)
 NULLITY- Second category- Voidability

◦ Parties’ choice (or to one of them) to decide whether or not they

wish to nullify effect of legal act ( or legal transaction)
◦ Example :if one of the parties to an agreement has been induced
by error or fraud or threat ,the aggrieved party may void such a
contract by a unilateral declaration. But, if she chooses not to
annul the act it will, remain valid and binding.
Application and sources of law

“ The law must be applied in all cases which come within the
letter or spirit of any of provisions.

Where there exists no applicable provision of law, the judge

shall decide according to customary law and, in default
thereof, according to the rules that he would lay down if he
himself had to act as legislator

In rendering his decisions, the judge benefits from legal

opinions and case law”
1- Provisions of Law
2- Customary Law(Where there is no
applicable provision)
3- According to the rules that he would lay
down if he himself had to
act as legislator
(no customary rule
applicable)
◦ Ascertaining the applicable rules

◦ Determining the relevant facts

◦ Application of relevant provisions of law

 All legal cases must be based on certain facts
 The duty of bringing forward evidence of facts for the
particular case belongs to
 IN CIVIL CASES,
 Plaintiff
 Generally speaking, the Court is bound by the evidence submitted by
the parties
 IN CRIMINAL CASES
 Prosecution
 Generally speaking, if the Court is not satisfied with the evidence
submitted, it may seek to obtain further evidence on its own
initiative.
 There are different forms of evidence. Example:
Testimony (statements made by the witness in court),
written materials, material objects offered as a proof
of existence of an alleged fact.
 The facts,
◦ Example: 1- In DIVORCE case, the first fact which
must be proven is that there is legal marriage
◦ 2-In eviction (tahliye) case, the plaintiff must prove
that he is the owner of the property in question
The Court reaches the legal conclusion by
applying the relevant provisions of law and
taking into consideration, arguments and
counter arguments made by the parties in the
light of the relevant facts and legal
[Link] methods employed by the court in
reaching their judgment are:
1- Syllogism
2- Argumentum a contrario
3- Analogy
1- Syllogism:
- Logical reasoning
- Act of thought by which from two given
promises we proceed to a third premise.
- Example:
- Majority is attained by reaching age of 18 years (legal
rule)
- A has completed his eighteenth year (fact)
- A has attained majority (judgment,decision)
-
2- Argumentum a contrario:
-an argument derived from the opposite of the
meaning of a legal rule.
Example:
-According to the Article 307 of Civil Code,
for adoption (evlat edinme), the adopter should
be at least 30 years old.--- General rule
-Persons under 30 cannot adopt a child (legal
rule derived through the method of argumentum
a contrario)
- Mrs. A is younger than 30 years (fact)
-Mrs. A cannot adopt a child(judgment)
3- Analogy :
- a gap in the law is filled through the
application of a rule used in similar cases.
Example: The law concerning surnames
mentions that no repugnant or ridiculous
words can be taken as a surname.
There is no rule for the first name- there is
gap
- The gap may be filled by applying the rule
concerning the surname to the first name by
analogy.
 The facts alleged should be proven.
 Usuallly, plaintiff has to prove the facts on
which the case is based but the defendant
may have a burden of proof if he/she raises
an “affirmative defense”
◦ Affirmative defense, when the defendant does not
deny the existence of the facts put forward by the
plaintiff but asserts new facts which refute them.
 Example:
◦ A alleges that B agreed to buy A’s book for 100 TL
and that failed to pay him the money
◦ B does not deny the fact that he took the book from
A, but alleges that A did not sell it but gave it as a
gift (affirmative defense) and therefore denies the
liability.

◦ If A proves his assertion B will be bound to pay 100

TL to A
◦ If B proves his claim, he will not have to pay to A.
WHO MUST PROVE FIRST?
 In criminal cases, all of the elements of crime
with which the defendant is charged with
must be proven by the Prosecutor.

 “Everyone charged with a penal offence has

the right to be presumed innocent until
proven quilty” (Constitution Art. 38/IV,
Universal Declaration of Human Rights Art.
11(1))
 The burden proof may shift from one party to
an other and claims and counter claims may
go back and forth between parties.
 Article 6 of Civil Code
◦ “In the absence of a special provision to the
contrary, each party is bound to prove the existence
of the facts on which he bases his right (claim)”
 Whoever commences the legal action has the
initial burden of proof but the burden of
proof may shift from one party to another in
the course of trial
◦ First, the plaintiff shall prove the facts on which his
case is based
◦ If the defendant, raises conter claim as a defence,
he shall prove the facts on which his defence is
based.
 Sometimes it may be not easy to determine
which party has the burden of proof
◦ Example:
 A alleges that he donated to B on condition that B pay
%5 interest on this amount to UNICEF each year
 B accepts the existence of donation, but claims that
there was no condition attached to it and therefore he
did not pay any money to UNICEF

 Both parties accept the existence of donation

 The contraversy is whether there is a condition or not
 Both parties accept the existence of donation
 The contraversy is whether there is a condition or not
 If the existence of condition is proven, then A will have to right
to rescind the contract
 Article 6 of Civil Code----fails to provide an answer
 In this type of situations, it is generally agreed that
determination of the party who must prove his allegations is left
to the discretion of judge
 As a general rule, the burden of proof falls on the party who bases
his claim on an exceptional or unusual fact.
 The judge shall decide which claim is based on exceptional or
unusual fact. (In our example, the question is- “Is this type of
donation usually free of any conditions?” If the answer is yes than A
shall prove, if the answer is no then B shall prove that there was no
condition attached to donation)
 In court practice and doctrine, Article 6 of Civil Code is
understood as “he who claims the existence of a fact which is
contrary to the normal course of events has the burden of
proof.”
 Definition: The assumption of the truth of a
fact without direct proof
 Effective procedural device for shifting the
burden of proof
 Natural presumptions established by logic or
common knowledge
 Statutory (Legal) Presumption
 Rebuttable Presumption
◦ Presumptions whose inaccuracy may be proven
 Irrebuttable (Conclusive)Presumption
◦ A fact that the law does
◦ not allow to be rebutted
 Presumptions whose inaccuracy may be
proven. Examples:
Presumption of Innocence

Presumption of Paternity

Presumption of Good Faith

Presumption of Ownership
 A person accused of a crime is innocent until proved
quilty
 “No one shall be held quilty until proved quilty in a court
of law”
 Fundamental Right
 The Convention for the Protection of Human Rights and
Fundamental Freedoms of the Council of Europe says (art.
6.-1): "Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law".
 The parties when dealing with each other acted
honestly and did not engage in any deceptive
acts
 Article 2 of Civil Code
◦ “Every person is bound to exercise his rights and fulfill
his obligations according to the principles of good faith”
 Article 3 of Civil Code
◦ “Bona fides is presumed whenever the existence of a
legal position is dependent on the observance of good
faith.
However, no person can plead bona fides in any case
where he has failed to exercise the degree of care
required by circumstances.”
 Civil Code Article 898
◦ “The person in possession of a movable property is
presumed to be its owner”