Unit 6: Introduction to Civil Law

Introduction

In this chapter the concept of civil law is going to be examined. The meaning of civil law, the subbranches of civil law and the main provisions of the Civil Code shall be discussed. Starting with the concept of person, first law of persons shall be dealt with in detail. Secondly, the basic unit of the society which isthe family shall be our concern. Formation of thefamily, marriage, matrimonial property systems and divorce are the main topics to cover. Lastly, another important branch of civil law, namely the law of obligations shall be explained in detail. The sources of obligation, especially contracts as a source of obligation, are going to be examined.

Concept of Civil Law

Actually the concept of “civil law” has mainly two different meanings. One of them is broader and the other one is a narrower meaning, and in this chapter we shall deal with the narrower meaning. According to its first meaning “civil law” is one of the predominant systems of law in the world, together with the Anglo-Saxon law or in other words common law. In that context, civil law is also named as the continental law. In general, the Anglo-Saxon law draws abstract rules from specific cases; on the other hand, civil law uses abstract rules that are already laid down by the law-maker. In civil law, codification is important. Civil law has its roots mainly in Roman law. Besides the differences in codification, the methodology is also quite different between these two law systems. Turkey is also a civil law, in other words continental law country and the main sources of law are the written sources, that is to say codification is very important in Turkish law. In its second meaning of the term, “civil law” refers to a branch of private law. Civil law mainly governs the relationship between individuals. Civil law covers all aspects of the life of an individual from birth till death. Even after death, all the issues are regulated by civil law.

There are five main subbranches of civil law.These are:

1. Law of persons: This is a branch of civil law that generally deals with persons and the modalities attached to persons. In this part we shall mainly deal with the meaning of “person”, the types of persons and the capacity of persons.
2. Family law: Family is the basic unit in the society; therefore, not only with the Civil Code but also in the Constitution, great emphasis is granted to the family and to the protection of the family. Therefore Turkish Constitution also brings some provisions that regulate the family in a general way. According to these provisions, the State has a duty to protect the family. Article 10 of the Constitution regulates the equality principle. But even this principle was not found sufficient enough to emphasize the equality of man and woman within the family. For that reason, on 07.05.2004 a new paragraph is added to this provision: “Women and men have equal rights. State has a duty to provide this equality in reality”. It should be stated that the main regulation regarding the family issues is the second book of the Turkish Civil Code.
3. Law of succession:
4. Law of property
5. Law of obligations: Law of obligations is the branch of civil law particularly concerned with the relations that create obligations. These relations are actually very important for everyone and even in our daily lives every day we enter into these kinds of relations, mostly without recognizing the legal meaning and significance. The main source of law of obligations is the Code of Obligations. The Code of Obligations is composed of two parts. The first part is called “General Provisions” and the second part is called “Specific Types of Contracts”. General provisions part is concerned with the formation, the effects and the discharge of obligations, obligations with special modalities, the assignment of claims and the assumption of obligations. Specific types of contracts part containprovisions affecting various types of contracts, such as sale, loan, rental, service, surety, etc.

It can be derived that an obligation has three elements:

1. Creditor: Creditor is the party who is entitled to request the consideration. In a donation contract, the parties are named as the donor and the donee. Donee is the creditor. Whereas in a sales contract he parties are named as the seller and the buyer and both of them are creditors, since sales contract is a contract in which both of the parties are under a burden of a consideration. The “seller” is under the liability of delivering the sold goods to buyer, the “buyer” is liable to pay agreed price to seller, in return.
2. Debtor: Debtor is the party who is bound to perform a certain act given as consideration. In a donation contract, the donor is the debtor, whereas in a sales contract both the seller and buyer are debtors.
3. Consideration: Consideration is an act, which the debtor is obliged to perform as the content of her obligation. It may be an act of giving something, like in sales contract, giving the good and giving the payment in return. It may be an act of doing something, like in employment contract-employees cleaning the building, or it may be an act of refraining from doing something, like in an agreement of restraint of trade.

Formation of a Contract: Offer and Acceptance: A contract is a legal transaction concluded by a mutual exchange of assents of two or more persons. Therefore, for the formation of a contract there is a need of two mutually declared intentions. From these intentions the first one declared is named as an “offer” and the second one declared is named as an “acceptance”. According to the first article of the Code of Obligations, the conclusion of a contract requires a mutual expression of intent by the parties.

Offer; An offer is a declaration of intention by one party, known as the offeror, whereby he expresses his willingness to enter into a contract. There are some requirements for a valid offer:

1. First of all, an offer must be definite and certain. It must with no doubt include all the essential terms of the contract. In article 2 it is stated that, where the parties have agreed on all the essential terms, it is presumed that the contract shall be binding notwithstanding any reservation or secondary terms. Therefore, in order to conclude a contract, the offer should very clearly include all the essential terms of the aimed contract.
2. Secondly, the offer must be communicated to the offeree. But it should be mentioned that it is not necessarily be communicated to a particular person. It can also be communicated to the general public as well. The display of goods with a price quotation in a shop window is considered to be an offer. In that case the offer is made to the public.
3. Lastly, the offer must be seriously made. In other words, an offer must be made with real intention of the offeror. The offeror should have the aim to be bound with the offer. The offeror should have the intention to create a legal relation. When a declaration of intention has these three requisites, it is considered ad an offer. But if a person declares an intention without having the purpose of being bound with it, or if the declaration does not include all the requisites, it is named as an “invitation to an offer”. For example, if Mr. X enters into a stationary and asks for a blue pen. Since this declaration does not include all the essential element of the sales contract it shall be considered as an invitation to an offer. An offer, until it is terminated, gives the offeree a continuing power to create a contract by declaring an acceptance. The important question here is when an offer is terminated or in other words how long shall the offeror be bound with his/her offer. First of all, it should be mentioned that the offeror may set a time limit for his offer. A person who offers to enter into a contract with another person and sets a time limit for acceptance is bound by his offer until the limit expires. He/she is no longer bound if no acceptance has reached him on expiry, of the time limit. If an acceptance is sent after the expiry of the time limit, it shall no longer be considered as an acceptance, but a “new offer”. The offeror does not have to set a time limit, if no time limit is set, then the Code of Obligations makes a distinction between the parties who are present and who are absent. Where an offer is made in the offeree’s presence and no time limit for acceptance is set, it is no longer binding on the offeror unless the offeree accepts it immediately. Offers declared by telephone, computer and such communication devices, on the condition that the parties may understand and respond simultaneously, are considered to be made in the offeree’s presence. For example during simultaneous chat on the computer, the parties are present, but if the offeror writes an e-mail, it shall not be considered as the presence of the offeree, since it is not at the same time. Where an offer is made in the offeree’s absence, and no time limit for acceptance is set, it remains binding on the offeror until such time as he/she might expect a reply sent dully and promptly to reach him/her. The offeror may assume that his/her offer has been promptly received. As a rule, it is not possible for the offeror to withdraw his offer. If the offer is declared in the presence of the offeree, it is certain that the offeror shall not be able to withdraw his/her offer. But if the parties are absent, according to the Code of Obligations there is a possibility to withdraw the offer. An offer is deemed not to have been made, if its withdrawal reaches the offeree before or at the same time as the offer itself or, where it arrives subsequently, if it is communicated to the offeree before he/she becomes aware of the offer. The offer is terminated, if the offeree rejects the offer. In Turkish legal system, “keeping silent (silence)” means as a rule a rejection. Unless the nature of the transaction or the circumstances or the law regulates the contrary, it shall be regarded as a rejection. Therefore as a rule, if the offeree keeps silent it shall mean a rejection and the offer shall be terminated. Death or loss of capacity of the offeror as a rule does not terminate the offer, unless the consideration is a personal consideration. A personal consideration is a consideration, which is performed by using the physical power, mental talent or experience of the debtor.

Acceptance; An acceptance is a declaration of intention to agree to the terms of the offer. Offeree is the party who declares the acceptance. An acceptance must exactly comply with the requirements of the offer. In other words it should be the mirror image of the offer. A declaration of intention that requests a change or addition to the terms of the offer shall be regarded as an acceptance, but a “counter-offer”. A counter-offer is considered to be a new offer. The offeree as a rule is bound by his/her acceptance; however, the rules concerning the withdrawal of an offer also apply to the withdrawal of the acceptance. It is important to know the exact time when a contract is concluded. As a rule, provided that all of its elements are complete, a contract starts to take effect at the moment it is concluded. The benefit and risks, as a rule, start from this date. The interest rates are also effective from this date. The time a contract is concluded and this contract starts to take effect is the same if the parties are present. But if the parties are absent, a contract starts to take before on the condition that it is concluded. According to article 11 of the Code of Obligations, a contract concluded in the parties’ absence takes effect from the time the acceptance is sent by the offeree to the offeror. This contract is concluded at the moment the acceptance reaches to the offeror.

Form of a Contract:

Form is the appearance of the intention declared through a certain medium. In Turkish law the principle is “freedom of form”. This freedom is clearly expressed in article 12; the validity of a contract is not subject to compliance with any particular form unless a particular form is prescribed by law. According to the principle of freedom of form, the parties are free choose any type of form they want in concluding their contract. In that sense in terms of its appearance there are three types of form:

1. Oral form: This is the easiest type of form and especially in the contracts that are Daily concluded, parties mostly choose this form.
2. Written form: This type of form consists of two elements: the text part and the signature part. The text can be written by any kind of device. But the signature should be either handwritten or it should be signed by way of secured electronic signature. All persons on whom the contract imposes obligations should sign the contract. As stated above signature must be appended by hand by the parties to the contract. Secured electronic signature has the same effect as the signature written by hand. A signature reproduced by mechanical means is recognized as sufficient only where such reproduction is customarily permitted, and in particular in the case of signature on large number of issued securities.
3. Official form: The official persons who may give an official form are notaries, land registrars and peace court judges, though the latter does not serve this purpose any more, unless it is a necessity. The notaries may give the official form in two different ways. In the first one, the parties conclude a written contract, and then take it to the notary and they sign the contract in front of the notary. By that way, the signatures of the parties are authenticated by the notary. In the second way, the parties go to the notary and explain what they want to conclude, the contract is drawn up by the notary himself/ herself. Here the notary acts ex-officio. The land registrar only acts exofficio, but the contracts that can be concluded by the land registrar are limited only to the contracts on the real rights of immovable property. As mentioned before, the rule in Turkish legal system is the freedom of form. But for some types of contracts the lawmaker has prescribed a particular form. At this point this form is regarded as a “form required for validity (form of validity)”. In that case, the contract shall be valid only if this particular form is followed by the parties and the contract is concluded by using this form. For example, marriage is a family law contract and it should be concluded in oral form. Assignment of claims contract should be concluded in written form. Contract for sales of an immovable property should be concluded in official form only by the land registrar. Therefore, if there is a form of validity prescribed by law, the parties have to follow this form, if not their, contract shall be null and void. Apart from the form of validity brought by the law, the parties may also according to their choice prescribe a form by themselves as well. According to article 17, where the parties agree to make a contract subject to form requirements not prescribed by law but by them, it is presumed that the parties do not wish to assume obligations until such time as those requirements are satisfied. Lastly, “form as means of proof” should be mentioned. This form is prescribed by the Civil Procedural Code in order to prove an enacted contract. According to the Civil Procedural Code, legal transactions to establish, transfer, convert, renew, satisfy or release a right must be proved by a written document, namely a “deed”, if at the time of transaction, the value involved exceeds 2590 TL. Unless the transaction exceeding the stated value is made in a written form, in case of dispute it may not proved. But this does not affect the validity of the transaction.

Contractual Freedom:

The main principle of the law of obligations is the free discretion of the parties in a legal relation. Free discretion means the freedom to act according to her wishes of a person. One of the most important results of free discretion is “contractual freedom”. This freedom finds its roots in article 26 of the Code of Obligations which states that the terms of a contract may be freely determined within the limits of law.

Contractual freedom may be summarized as five different types of sub-freedoms:

1. Freedom to enter into a contract
2. Freedom to choose the other party of acontract
3. Freedom of form
4. Freedom to withdraw a contract
5. Freedom to choose the type and subjectmatter of a contract.

However, this principle, namely contractual freedom, does not have an absolute meaning. There are some restrictions to this freedom prescribe in the article 27 of the Code of Obligations. According to it, a contract is void if its terms are impossible, unlawful or immoral. However, where the defect pertains only to certain terms of the contract, those terms alone are void unless there is a cause to assume that the contract would not have been concluded without them.

Torts: Every person has freedom of activity within the limits of law. Law restricts this freedom by the rights of the other persons. When a person acts beyond the restrictions of law, the acts become wrongful and such wrongful acts are named as “torts”. Torts are actually civil wrongs and most of the torts also give rise to criminal liability as well.

Unjust Enrichment: A person who has enriched himself without just cause at the expense of another is obliged to make restitution