HUKUKA GİRİŞ - Deneme Sınavı - 7

The grounds for divorce are mainly two types: Specific grounds and general ground. According to the Civil Code, there are five specific grounds for divorce:

1)Adultery;
2)Plots against life, grave assaults and insults
3)Crime and dishonorable life
4)Desertion
5)Mental illness

The general ground for divorce is regulated in article 166 of the Civil Code and it is named as the
irretrievable breakdown of the marriage. When the marital life becomes unbearable and it no longer could be expected from the spouses to continue their marital life together, this action could be brought by one of the spouses.

According to Turkish Code of Obligations, there are three sources of obligations. These are:

1. Contracts
2. Torts
3. Unjust Enrichment

It should be mentioned that these sources are not limited in number. These are the sources that
very frequently create an obligation, but besides them, there are other sources as well. For example, an obligation may be created directly from the law itself.

In Turkish Law, engagement is a very simple process without any formal requirements.

Engagement is also regarded as a contract, but it is a family law contract. Therefore, it is not possible to enforce. This important point is specially emphasized in The Civil Code by saying that, engagement does not give rise to any actionable obligation to get married.

In article 122, it is stated that if the engagement is ended, the engaged parties, their parents and the ones who were acting as their parents may demand the return of gifts made to each other. The second result is the material and moral damages resulting from the breach of the engagement should be compensated.

For a person to have tortuous liability, the following requisites should be met:

1. Act: First of all, there must be an act. It may be a positive act (for example, to
stab another person) or an act of omission (for example, a night nurse sleeping and not giving the medicine and care to the patients). 

2. Unlawfulness: Unlawfulness is the avoidance of the compulsory legal rules that safeguard a person in her person and/ or property.

3. Fault (culpa): Fault is either a willful act or a negligent act. A person cannot have fault, as a rule, unless he/she has the ability to make fait judgments. A willful act is an act in which the person committing the act knows the results of the act and actually to achieve these results. A negligent act is an act, and the person committing it or could have known the results if she was careful enough, but actually does not want the result, however does not take care to prevent it. 

If there is a crimal, there is fault, but the criminal intent does not cover all the cases of fault; There are also faults that are not criminal.

4. Damage: It is the loss either given to a person or to his property or both. A person
claiming damages must prove the loss he/ she is suffering from. There are two main types of damages; material damage and immaterial (moral) damage.

5. Proximate causal relation: There must be a proximate causal relation between the unlawful act and the damages. In other words, the damage should be result of the unlawful act.

The spouses have an equal say within the family and equal rights and duties. Before the new Civil Code entered into force in 01.01.2002, there was the concept of the “head (chief) of the family” and this person was the husband.

They mutually undertake to strive to safeguard the interests of the marital union and to care jointly for the children and to educate them.

In choosing a career or education, spouses do not need to get the consent of the other spouse.

A woman acquires the surname of her husband with marriage. However, she can add her surname before that. This provision is the only provision that still creates inequality. But with the recent
court decisions woman’s right to continue carrying only her surnames started to be recognized.

There are four conditions for unjust enrichment
to exist:

1. There must be enrichment in the property of a person.
2. There must be a decrease in the value of property of another person.
3. The enrichment must be without a just cause
4. There must be a causal relation between the enrichment and the decrease in the value of property.

The acquired property of a spouse comprises:

1. The proceeds from his or her employment

2. Benefits received from social security, social welfare institutions and staff welfare schemes,

3. Compensation obtained for inability to work,

4. Income derived from his or her own individual property,

5. Property acquired to replace acquired property.

On the other hand, a spouse’s individual
property comprises:

1. Personal items used exclusively by that spouse,

2. Assets belonging to one spouse at the beginning of the matrimonial property regime or acquired later at no cost by inheritance or otherwise (for example, donation),

3. Immaterial (moral) compensation,

4. Acquisitions that replace individual property.

According to the Civil Code, there are five specific grounds for divorce.

1- Adultery: Voluntary sex with someone other than his/her spouse. This action should be brought within 6 months.

2- Plots against life, grave assaults/insults: A plot against life is attempt by one spouse to murder the other spouse. Grave assaults
are threats or attempts to do bodily harm to the other spouse, by force or violence. Grave insults are actions of humiliation by one spouse to the other spouse. The spouse may again bring an action for divorce in six months time he/she learns about this act and in five years this act is committed. If the spouse forgives the one who has committed such an act, then this spouse shall not have a right to bring an action for divorce.

3- Crime and dishonorable life: The conviction of a spouse for a humiliating crime or the dishonorable conducts of one of the spouses, like habitual drunkenness or habitual gambling, are grounds for divorce. But to bring an action for divorce, it should not be expected for the other spouse to continue living with this spouse any more.

4- Desertion: If one of the spouses leaves the marital domicile in order not to fulfill his/her marital duties or does not return to the marital domicile without a just ground and if this period at least six months, the remaining spouse may bring an action for
divorce. During this six month period, the remaining spouse should ask either the judge or the notary to draw a notice and invite his/her spouse back home and remind him/her about the results of his/her not returning. 

5- Mental illness: If one of the spouses becomes mentally ill and life becomes for this reason unbearable to the other spouse, the healthy spouse may bring an action for divorce, on the condition that this illness is proved to be incurable by a medical report.

An obligation has three elements:

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, the 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.

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.

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 contracts, 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.

Thus, in a sales contract, both the buyer and the seller are the creditors and also the debtors.

When a person acts beyond the restrictions of law, the acts become wrongful and such wrongful acts are named as “torts”. According to article 49 of the Code of Obligations, any person who unlawfully causes loss or damage to another, whether willfully or negligently, is obliged to provide compensation. This liability is named as tortuous liability.

According to article 77 of the Code of Obligations, a person who has enriched himself without just cause at the expense of another is obliged to make restitution. 

For example, if a person transfers an amount of money to an account of third person by mistake, instead of the counterpart of the contract he made with; third person is under a liability to pay it back. There are four conditions for unjust enrichment to exist:

1. There must be enrichment in the property of a person.

2. There must be a decrease in the value of property of another person.

3. The enrichment must be without a just cause

4. There must be a causal relation between the enrichment and the decrease in the value of property.

Civil law has its roots mainly in Roman law. Turkey is also a civil law, in other words continental law country. Anglo-Saxon law (not civil law) draws abstract rules from specific cases. Statement (III) is wrong. The correct answer is C.

The Civil Code was effective till 1 January 2002, and the Code of Obligations was effective till 1 July 2012. Then they have been replaced by the new Civil Code and the new Code of Obligations consecutively, but the new versions are also following the nearly the same modernisation pattern of the Swiss laws, therefore they are also no different from the existing Swiss originals mainly. The correct answer is A.

There are five main sub branches of civil law. These are; law of persons, family law, law of succession, law of property and law of obligations. Commercial law is not main sub branches of civil law. The correct answer is E.

Legal persons are mainly regulated in the Civil Code. Apart from these general natured provisions, two of the legal persons are also regulated, namely associations (societies) and foundations. So associations (societies) are regulated in the Civil Code. The correct answer is B.

In declaration of absence there are two different situations. In the first case, it is highly probable that a person is dead because he or she has disappeared in extremely life-threatening circumstances. In the second case, a person has been missing for a lengthy period of time without any sign of life. This is a situation in which a person has disappeared without any reason. In that case, “five years” should be waited since the last sign of life before the application to the court. The correct answer is D.

The persons of limited capacity are the persons who married and to whom a quasi guardian is appointed. The correct answer is A.

In Turkish law the normal marriage age is the completion of 17 years of age, with the consent of the parents, and the extraordinary marriage age is the completion of 16 years of age, with the court decision. The correct answer is C.

The acquired property of a spouse comprises; a) The proceeds from his or her employment,  b) benefits received from social security, social welfare institutions and staff welfare schemes, c) compensation obtained for inability to work, d) income derived from his or her own individual property and e) property acquired to replace acquired property. The correct answer is E.

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 a contract, 3. Freedom of form, 4. Freedom to withdraw a contract and 5. Freedom to choose the type and subjectmatter of a contract. The correct answer is B.