Turkish Civil Code and the Turkish Code of Obligations
1. Origins of modern Turkish private law
Since the middle of the 19th century, Turkish private law has been shaped by a number of reception processes, each of which adopted laws originating from Europe and has been focused on the modernization of the legal system.
The first major reception took place during the Ottoman Empire. Originally, Islamic law was applied in the Empire, and its compliance was supervised by religious courts. The non-Islamic religious communities were in matters of status, family law and the law of succession subject to the rules and the jurisdiction of their own denominations, but they were otherwise governed by the sharīca (sharia). The foreigners resident in the Ottoman Empire were granted privileges such as consular jurisdiction according to various international treaties (les capitulations). All in all, therefore, the legal system was characterized by its plurality.
In the second half of the 19th century, this plurality was further underlined by the supplementation of the religious legal order by a secular one. The concept of codification as a guarantee of a rational and fair legal system had gained a foothold in the Ottoman Empire, so that pressure for political reform grew internally. A corresponding pressure emanated from various European countries, which hoped for more effective protection of their rights gained by international treaties through the introduction of secular law and courts. The new laws were almost exclusively prepared under French influence, which can be traced back to the significance of the ideas and ideals of the French Revolution for the reform movement in the Ottoman Empire. Thus, the commercial and maritime codes of 1850 and 1863, respectively, were translations of Books 1 to 3 of the Code de commerce. The content of the Civil Procedure Rules of 1879 was largely borrowed from the French Code de procédure civile. Although, in the context of these reforms, the adoption of the Code civil was also considered, the reactionary forces prevailed so that, instead, from 1869 to 1876, parts of the sharia were promulgated in 16 books under the name of Mecelle-i ahkamı adliye. This collection contained provisions on obligations, property rights and procedural laws drawn from Islamic jurisprudence.
The second big reception took place between 1926 and 1929 and provided the basis for the radical social and structural turn from the Ottoman Empire into a western-orientated parliamentary republic, whose main characteristics were secularism, the rule of law, and legal unity. It was the express goal of the young Turkish Republic, founded in 1923, to catch up with the European legal systems and to purge Turkish law of all religious elements. Since at the time, expert knowledge and experience required to draft the new laws were not available, it was decided to ‘transplant’ laws from abroad in their entirety. The Swiss Civil Code (ZGB) (1926), the first two sections of the Swiss Code of Obligations (OR) (1926), the Code of Civil Procedure of the Canton Neuchâtel, the Swiss Bankruptcy and Enforcement Law (1929), the Italian Criminal Code (1926) and the German Code of Criminal Procedure (1929) were imported almost verbatim and passed as law by the Turkish parliament. A commercial code compiled from French, Belgian, Italian and German sources as well as a maritime code largely based on the German model came into force in 1926 and 1929 respectively (both were substantially revised and incorporated into the new commercial code of 1956).
Several elements contributed to the fact that such a radical change was indeed successful; in particular, the slow but inexorable progress towards secular law already in the Ottoman Empire had paved the way for the reforms. That aside, the strict one-party system in the young Turkish Republic which lasted until 1946 prevented all forms of reactionary resistance and attempted to familiarize the Turkish people with the new ideals through a comprehensive reform of the educational system. But the success of the university reform of 1933, in particular, was greatly assisted by its temporal coincidence with the dismissal and persecution of many scholars in national-socialist Germany. This presented a rare opportunity for Turkey, enabling the universities to employ qualified academics from abroad for the process of their modernization. These German academics played a leading role particularly in providing retraining for the legal elite, in reforming the Turkish higher education system, and in educating the first generation of young Turkish jurists. The architect of the Turkish Commercial Code of 1956, Professor Ernst E Hirsch, must be mentioned in particular.
The country’s clear European orientation, which began in the 19th century was given a solid political framework by the signing of the Association Agreement with the then European Community in 1963, whereby the adjustment of Turkish law with European law has been promoted steadily, albeit with interruptions. This process has gained impetus in recent years with the introduction of the Customs Union between Turkey and the European Union (EU) on 1 January 1996 and the granting of official candidate status for accession by the European Council in Helsinki in 1999. The measures for the implementation of European legislation were set out, most recently, in the ‘Turkish National Programme for the Adoption of the Acquis Communautaire’ (2003, 2008). In the context of these developments, substantial parts of business law were revised or re-issued. The major codes were also subject to important amendments (Civil Code/2002; Enforcement and Bankruptcy Code/ 2003; Code of Civil Procedure/2004; Code of Criminal Procedure/2005; Criminal Code/2005; Commercial Code/entry into force 1 July 2012; Code of Obligations/entry into force 1 July 2012).
2. Reasons for the reception of the Swiss Civil Code and the Swiss Code of Obligations
In the official motives provided by the Ministry of Justice the choice of the Swiss Civil Code (ZGB) and Swiss Code of Obligations (OR) was explained by pointing out that they were the ‘most recent, most accomplished and most popular codes’. Legal writers, however, have also traced their adoption to other reasons. One of the most important ones was that the then Justice Minister and many other jurists had studied in Francophone Switzerland and were thus well-versed in Swiss law. Apart from that, the texts were available in an official French version, which facilitated their reception in view of the fact that many Turkish jurists, as a result of the reception of French laws since the middle of the 19th century, were acquainted with the French legal language.
But, of course, apart from the German Bürgerliches Gesetzbuch (BGB), the Swiss Civil Code (ZGB) and Swiss Code of Obligations (OR) were indeed the most recent ones in Europe. The French Code civil and the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB) were, for this reason alone, left unconsidered. The Italian Codice civile was also, given its pronounced Catholic influences in the field of family law, not in the running. Thus, the Swiss Civil Code and Code of Obligations and the BGB were the only codes that were considered. The fact that the pendulum eventually swung in favour of Swiss law was due to several important features of its codes. The Civil Code and Code of Obligations, taken together, only had two-third of the length of the BGB (1,528 vis-à-vis 2,385 paragraphs). In addition, they appeared to be drafted in a much more intelligible form; and the use of many general clauses gave them a flexibility facilitating their reception.
Naturally, there were also political motivations for the choice of Swiss private law, in that Switzerland was one of the few countries in Europe that had not participated in World War I and had, therefore, not been at war with Turkey. The young Republic, though attempting to transform itself into a European country, was very concerned with underlining its independence and, in particular, avoiding any impression that it received its laws by way of imposition from outside.
With hindsight it is now clear that some institutions, which were incorporated into Turkish law with the new codes, have never actually been used. This is particularly true concerning matrimonial property agreements and family foundations and, in the field of property law, servitudes and debentures.
On the other hand, the application and enforcement of some rules and institutions caused considerable problems. The introduction of the mandatory civil marriage must be mentioned in the first place. Customarily, the religious Imam marriage continued to be used, even though this was punishable according to the Turkish Criminal Code of 1926, entailing a prison sentence of up to six months. A member of the clergy carrying out such a ceremony without the required production of the marriage certificate was and still is punishable as are the parties who fail to execute a civil marriage beforehand (Art 230 Turkish Criminal Code 2005).
Another problem concerned children born out of wedlock. It was only to protect the interests of the child, that the Turkish legislature has, to date, created nine different special acts (the last in 1991) in order to give parents who live in religious or polygamous unions the opportunity to register their children as born in wedlock. However, the second (or subsequent) marriages have never been legalized. These special acts have had particular importance in view of the fact that Turkish private law (like its Swiss equivalent) forbade the paternal acknowledgment of a child born as a result of adultery. This was only changed in 1991, when the Turkish Constitutional Court declared the existing legal position unconstitutional and void.
The acquisition of real property has also caused problems for years in that the civil code requires an entry into the property register. At the time of the civil code’s introduction in Turkey, there was no property register. Although some types of real property were recorded in various registries, property rights were unclear for much of the real property across the country. Thus, for decades, Turkish courts had to deal with the problems related to unregistered property transactions and to develop special rules for them. In particular, the rule in the civil code relating to extraordinary acquisitive prescription was far more often used than in Switzerland.
In the area of the code of obligations, on the other hand, no particular problems of application arose. Even the introduction of contractual and statutory interest met with no resistance in practice.
4. Development of the civil code in Turkey and the new Turkish Civil Code of 2002
The development of the Turkish Civil Code can roughly be divided into three phases. The first phase lasted until the end of the 1970s. It was characterized by an effort to understand the law, correctly to interpret it and effectively to apply it in practice. Even though, during this period, the Ministry of Justice established a commission in order to revise the civil code (1951), its main brief was to make recommendations to the modernization of the legal language used within the code. In the translation of the 1920s, the prevailing legalese of the Ottoman Empire had been utilized, with its Arab and Persian vocabulary. This language, already little known to the Turkish population at that time, had become entirely obsolete a quarter of a century later. However, the draft Turkish Civil Code, published by the commission in 1971, never entered into force. Some peripheral changes were made, during this period, by special acts. Here, the Associations Act of 1972 and the Condominium Ownership Act of 1965 are particularly noteworthy. Both enjoyed priority over the civil code. A direct intervention into the civil code was undertaken in 1967 regarding its section on foundations. This change intended to promote the establishment of foundations.
The second phase, which began in the 1980s, was characterized far more by the efforts to adjust a code that had partly become outdated to modern times. In 1981, a commission was, once again, charged with the revision of the civil code. In preparing the draft, published in 1984, the commission was guided by the following principles: a) all provisions of the civil code were examined as to their continued relevance and as to their language; b) in this assessment, the draft of 1971 was taken into account to the greatest extent possible; c) all amendments that had, in the meantime, been made to the Swiss civil code were evaluated, and those which corresponded to Turkish requirements were endorsed; d) the case law of Turkish and Swiss courts was analysed; and e) in the course of the linguistic reformulation of the articles contained in the code, orientation was sought in the Swiss ‘mother-law’, as long as there was no reason to depart therefrom.
Nevertheless, just like its predecessor, this draft was never fully brought into force. But parts of both drafts were used in 1988 and 1990 in order to accomplish two large revisions of the Turkish Civil Code. The main aims of these revisions were to strengthen the protection of personality rights, to introduce the possibility to enter a sex change in the civil status register, to facilitate divorce and allow for divorce by mutual consent, to simplify adoption procedures, to reduce compulsory portions in the law of succession, to create more detailed provisions as to rights over a building, and to establish the right to create a mortgage in a foreign currency.
None the less, especially as far as equality between spouses and between children born in and out of wedlock is concerned, Turkish law remained far behind the developments in European legal systems. Since the Turkish legislature did nothing to remedy this situation, many of these provisions ended up before the constitutional court. For example, the provisions—originating from the Swiss Civil Code—according to which a wife was not allowed, without express or implied permission of her husband, to carry out professional activities, or the discrimination of children born out of wedlock, as far as their right of succession to their father’s estate was concerned, were declared unconstitutional.
Increasing criticism both from legal practice and legal scholarship induced the legislature in 1994 yet again to establish a commission of academics, judges, representatives of professional associations, non-governmental organizations and various ministries, with the task of reforming the civil code and bringing it in line with new social developments. The commission relied partly on the drafts of 1971 and 1984 but also on the developments in Switzerland and, as far as this was regarded as necessary, those in Germany, France, and Italy. In addition, the UN Conventions on the Rights of the Child and on the Elimination of All Forms of Discrimination against Women, both of them ratified by Turkey, were taken into account. The eventual draft produced by the commission was circulated in 1999 and, on 22 November 2001, was adopted by parliament. It came into force on 1 January 2002 and ushered in the third (and, to date, final) phase of development.
The new Turkish Civil Code contains 1,030 articles (in comparison to the previous 937 articles) and is drafted in contemporary language. It still corresponds to the system and structure of the Swiss Civil Code (ZGB). Large parts of the newly introduced provisions are mere translations of the reforms that had been undertaken, in the meantime, in Switzerland. Equality between spouses, the introduction of an ordinary matrimonial property system of participation in acquisitions, and the introduction of absolute equality between children born within and out of wedlock, are the most important issues. Differences from the Swiss model relate to special features of Turkish society. Generally, however, there are very few of such differences. More than eighty years after the reception of the Swiss Civil Code, one can still see a strong correspondence between the two texts and the legal practice that has developed on that basis.
5. Development of the Code of Obligations in Turkey
The Code of Obligations until recently corresponded largely to the text that entered into force in 1926 and constituted a translation of the first two parts of the Swiss Code of Obligations. Very few changes had been made to the law (eg electronic signatures were equated with handwritten ones; the scope of the regular five-year prescription period was extended; and the provisions on contracts of carriage were repealed in view of the fact that these contracts are already covered by the Turkish Commercial Code).
It was only in 1998 that a commission was established with the task of elaborating a new code of obligations. This commission published its draft in 2005, and a revised version was submitted to parliament in 2008. The Turkish Parliament accepted this draft on 11 January 2011 and decided that it shall enter into force as of 1 July 2012. But as a matter of fact, the new Turkish Code of Obligations falls considerably short of expectations. It is particularly striking that the commission has failed to take account of international and European developments. Neither has the commission made use of texts such as the Principles of European Contract Law (PECL), the UNIDROIT Principles of International Commercial Contracts (PICC) and the CISG (sale of goods, international (uniform law)); nor has the commission deemed it necessary to debate the merits of incorporating the 1995 consumer protection act, revised in 2003 (primarily to implement the relevant EU directives). The modernization of the law of obligations of the Bürgerliches Gesetzbuch (BGB) and the recodification of Dutch law (Burgerlijk Wetboek (BW)) were also completely ignored. Even though the new code contains improvements such as the introduction of provisions to control unfair contract terms, a general rule on hardship, and protective rules in tenancy law and personal suretyship law, it generally remains—just as the 2002 Civil Code—a translation of the Swiss Code of Obligations (OR). To a great extent the enacted changes have been inspired by the law reforms in Switzerland.
Georges Sauser-Hall, ‘La réception des droit européens en Turquie’ in Recueil de Travaux, publié a l’occasion de l’assemblée de la société Suisse des juristes a Genève, du 4 au 6 Septembre 1938 (1938) 325; Erich Pritsch, ‘Das schweizerische Zivilgesetzbuch in der Türkei’ (1957) 59 Zeitschrift für vergleichende Rechtswissenschaften 123; Ernst E Hirsch, Rezeption als sozialer Prozess, erläutert am Beispiel der Türkei (1981); Fritz Neumark, Zuflucht am Bosporus: Deutsche Gelehrte, Politiker und Künstler in der Emigration 1933–1953 (1995); Gülnihal Bozkurt, Batı Hukukunun Türkiye’de Benimsenmesi; Osmanlı Devletinden Türkiye Cumhuriyetine Resepsiyon Süreci 1839–1939 (1996); Heinrich Scholler and Silvia Tellenbach (eds), Westliches Recht in der Republik Türkei 70 Jahre nach der Gründung (1996); Norman J Singer, ‘The Reception of the Swiss Civil Code in Modern Turkey’ in Festschrift Peter Gauch (2004) 263; Yeşim M Atamer, ‘Rezeption und Weiterentwicklung des Schweizerischen Zivilgesetzbuches in der Türkei’ (2008) 72 RabelsZ 723.