Obligation to prove by promise in civil proceedings and exceptions

In cases where the dispute amount is above a certain value, the party with the burden of proof can, as a rule, prove its claim only with conclusive evidence. Definitive evidence is regulated in various articles of the HMK. Accordingly, conclusive evidence in the sense of procedural law consists of confession, promissory note and oath evidence. Before our explanations about the obligation to prove with a promissory note, we feel the need to explain the concept of promissory note.

WHAT IS A NOTE?

As we stated above, the promissory note is conclusive evidence within the meaning of HMK. Definitive evidence refers to the types of evidence whose provisions and consequences are regulated by law. In the presence of definitive evidence, the judge has no discretion and cannot judge the existence of the legal transaction shown in the definitive evidence. In this respect, the obligation to prove with a deed stated in Article 200 of the Code of Civil Procedure actually refers to the obligation to prove with conclusive evidence. However, it should not be forgotten that conclusive evidence does not only consist of deeds.

Promissory note in legal sense; It refers to a written document created by a person against himself. The promissory note must contain the signature, seal or a hand-made sign of the person who created the promissory note. Otherwise, the document does not qualify as a promissory note. Here, it is necessary to mention electronic data signed with a secure electronic signature. HMK article 205/2. According to the article; Electronic data created with a secure electronic signature in accordance with the procedure has the force of a promissory note. According to the relevant article, these data will also be accepted as promissory notes.

There are two types of bills: ordinary and official. We will give detailed explanations about these two types under separate headings below.

1- WHAT IS A COMMON STOCK?

Ordinary promissory note refers to the type of promissory note issued without the participation of an authority or official. In this respect, promissory notes drawn up between the parties are considered ordinary promissory notes. These types of bills can sometimes be issued to fulfill the validity requirement and sometimes to be used as a means of proof. If the contract to be drawn up between the parties is subject to the condition of written form, it must be drawn up as prescribed by law. Otherwise, the contract will be deemed invalid and no claim can be made based on this invalid contract. Regardless of the purpose for which it is drawn up, the document must contain the signature of the drawer. Again, seal, hand sign or secure electronic signature are also accepted as valid signatures. In addition, Article 14/2 of the Turkish Code of Obligations. According to the article; Unless otherwise provided by law, a signed letter, a telegram with originals signed by those who are in debt, a fax or similar means of communication, provided that they are confirmed, or texts that can be sent and stored with a secure electronic signature, are also considered as written form. The documents listed in the relevant provision are also considered ordinary promissory notes and constitute conclusive evidence.

For the ordinary promissory note to be accepted as conclusive evidence, it is not sufficient for it to be signed only. In addition, the person who signed the bill should not deny the signature and writing. Because, according to Article 205 of the Code of Civil Procedure, titled Proof of ordinary promissory notes; Ordinary bills that are confessed before the court or accepted by the court to be from the person who denies them are considered conclusive evidence unless the contrary is proven.

Not denying the signature under the document means acceptance of the signature. So, what if the person against whom the document is claimed as evidence wants to claim that the signature does not belong to him? This question is stated in Article 208 of the Code of Civil Procedure: "If one of the parties wishes to deny a writing or signature on a document claimed to have been prepared by them, they must claim forgery; otherwise, the document will be used as evidence against them." It was answered as follows. Below, the allegation of forgery and the case of forgery will be examined separately.

CLAIM OF FORGERY IN ORDINARY NOTES - CASE

As we stated above, the person who claims that the signature or writing on the promissory note does not belong to him must claim forgery. Otherwise, the deed will be used as evidence against him. HMK article 208/3. According to the article; "A person who alleges the forgery of a document can claim this as a preliminary issue in the same court or can file a separate lawsuit on this issue."

The consequences of denial of writing or signature are regulated in Article 209 of the Code of Civil Procedure. Accordingly;

• When the writing or signature on an ordinary promissory note is denied, that promissory note cannot be taken as basis for any transaction until a decision is made on this issue.
• When the writing or signature on official bills is denied, and if the forgery of the writing or signature on the bill is proven only by a court decision, this bill cannot be taken as basis for any transaction.
• The interim injunction given based on the bill is not affected by the allegation of forgery about that bill, and when necessary, the owner of the bill may request new measures to protect his rights.

The explanations we have made in this and the following headings should not be confused with the signature objection institution in the EIB. These statements are made only within the scope of HMK.

What is a Fraud Case?

As we stated above, the party alleging forgery can only assert this claim in an open lawsuit. However, without waiting for a lawsuit to be filed, he may request that the document be determined to be fake in a lawsuit he will file. This case is a negative determination case.

If the party alleging forgery has bad faith in this claim, it will be sentenced to compensation. According to Article 213 of the Code of Civil Procedure:

If the party who is found to be wrong at the end of the allegation of forgery is in bad faith, it is sentenced to pay the hearing fee for each hearing postponed for this reason and, in case of demand, to compensate the damages suffered by the other party for this reason.

How to Perform Fraud Investigation?

How the fraud investigation will be carried out is also regulated in the law. According to Article 211 of the Code of Civil Procedure, in the event that a document is alleged to be forged, a decision is made first by examining it in the following order, taking into account the statements of the other party:

a) If the judge cannot reach a conclusion after approving the party who denies the writing or signature, he evaluates the documents and other evidence he obtained by having that person write and sign in his presence. If the judge is in a position to decide on the forgery issue without the need for another examination, he makes a decision about the forgery of the document by clearly stating the reason. If the party summoned to the court for interrogation is not present on the specified day, he is deemed to have confessed the writing or signature on the document that he has denied; This issue will also be warned in the invitation issued to him.

b) If, despite the examination carried out in accordance with the provision of paragraph (a), the judge does not have a definitive opinion about fraud, he decides on an expert examination. Before the expert examination, the writings and signatures of that party, if available, suitable for comparison, are brought from the relevant places. The expert conducts an examination based on these letters and signatures and the letters and signatures obtained in that court. If the expert deems it necessary for the examination, he may request the court to re-write or sign the party in his presence.

Cancellation of Fake Promissory Note

In order for a bill to be annulled, the verdict of forgery must be final. After the decision is finalized, it is written at the bottom of the bill that it is fake and the bill is cancelled.

After the decision given by the civil court that the document is not forged is finalized, the allegation of forgery about the document in question will not be heard in the criminal court.

The fact that the criminal court decided not to punish or acquit the person who issued the document does not prevent the civil court from examining the forgery of the document.

2- WHAT IS OFFICIAL DEED?

Official deed refers to the deed drawn up with the participation of an official body or official. Although these bills are generally encountered in bills issued in accordance with formal requirements, bills drawn up with the participation of an official body or official for proof purposes are also considered official bills. In practice, it is often seen that this method is used to increase the power of proof.

Although official deeds are generally understood as notary deeds, official deeds are not limited to notary deeds. By law, another authority, authority or person may be given the authority to issue official deeds, as in Article 26 of the Land Registry Law. According to a decision of the 3rd High Court of Appeals, "The meter inspection report, which is an official document issued by the Measurements and Settings Branch Directorate of the Provincial Directorate of Science, Industry and Technology, constitutes conclusive evidence, and the contrary must be proven by another record and document with the same force."

As a matter of fact, in accordance with Article 204 of the Civil Code:

"Notary deeds in the form of writs and regulations are considered conclusive evidence unless their falsity is proven.

Deeds certified by notaries based on the declaration of the relevant parties and documents duly prepared by other authorized officers within the scope of their duties are considered conclusive evidence until the contrary is proven."

The justification of the article includes the following statements:

"Since official documents are regulated in this article, documents that are considered to have the force of a promissory note made by writs or arranged in a notary public, although not specified in the article, must also be accepted within the scope of this article. For example: Official documents such as settlements made before the court, preparation of an official will and determination of the estate also have the force of an official deed."

FORGEMENT OF THE OFFICIAL SECURITIES AND FORGERY CASE

Although an allegation of forgery can be made in the official promissory note, the addressee of the forgery claim will be the official body that issued the promissory note. People may claim that they did not sign the document, did not read it, or that the document was changed later. But every false claim needs proof.

The content, date and signature may be objected to in terms of the notary deed in its format. Such bills constitute conclusive evidence until proven otherwise. This provision in the Notary Law also reveals the main difference between ordinary bills and official bills. However, we stated above that the allegations of forgery made against ordinary bills should be examined first and the trial should continue after this examination.

Official bills issued in the form of confirmation also constitute conclusive evidence until proven otherwise. However, here the drawer of the bill can only object to the signature and date. Content objections cannot be made.

There can be no claim of forgery in terms of official documents. Fraud can only be proven by filing a new lawsuit. In the lawsuit to be filed, the person or body that issued the bill must also be named as the defendant. Law 208/4. In the article, this situation is stated as follows: "This claim of the party who denies the writing or signature on an official document can only be examined and decided in a separate lawsuit filed by the person who made the relevant document official as a party. The judge presiding over the main case, if necessary, gives a definite period of two weeks to the party who denies the signature or writing in this regard, to file a lawsuit." Edited with expressions.

The following expressions are used in the justification of Article 208 of the HMK:

"In the fourth paragraph, it is clearly regulated how to claim the denial of the writing or signature on official documents. When it comes to the allegation of forgery in official documents, how to put forward and examine this claim may cause hesitation in practice. In order to completely eliminate the hesitations on this issue, the party who denies the writing or signature on the official document can only make this claim in a separate lawsuit filed by the person who made the relevant document official. Because, as a rule, it is not possible to forge an official document without the involvement of the person who made the document official (except for the issuance of a fake document by imitating the official document after the official document has been prepared), directing the allegation of forgery only to the other party or only to the person who prepared the document, or filing separate lawsuits against them at different times is faced with a situation that may lead to contradictory decisions and is incompatible with the nature of the official document. Moreover, considering the reliability of the official documents, filing a lawsuit only against the other party or only against the person who prepared the document may result in the prolongation of the proceedings. It is important that such a claim of forgery be resolved as soon as possible by directing the document to the person who prepared it. Because, apart from the parties to the current case, the person who prepared the document is shown as a party and a new case is tried with different parties. The procedure is not possible in our trial law. For the reasons stated, it is regulated that the allegation of forgery in official deeds will be heard and decided in a separate lawsuit filed against the person who prepared the document and drew a favorable conclusion from the promissory note. If the party claiming forgery has not filed a separate lawsuit in this way, in order not to prolong the trial and to prevent this opportunity from being abused, the judge presiding over the main case has fifteen days ("two weeks") to file a lawsuit against the party who denies the writing or signature on this matter, if necessary. "A precise period of time is also regulated in the article."

A Supreme Court decision on the subject is as follows:

"Since the plaintiff party claims that the shares in his possession are real shares, contrary to the notary destruction report, and that the notary destruction report does not reflect the truth, this case is also based on an allegation of forgery within the meaning of Article 208/4 (HUMK 314) of the Civil Code No. 6100. On the other hand, Article 204 of the Civil Code No. 6100 and Notary Public Law No. 1512 are based." According to Article 82, it is regulated that transactions certified by the notary will be considered official transactions and will be valid until their falsity is proven. The claim of falsity of the content of such a document is a claim made against the notary who issued the document as well as the other party of the document, and if proven, it may lead to the legal liability of the notary in accordance with Article 162 of the Notary Law, and the defense of the notary may also affect the outcome of this case. In this case, the allegation of falsity of the document is not a party to the notary who issued the document. In accordance with Article 208/4 of Civil Code No. 6100, this claim of the party who denies the writing or signature on an official document can only be examined and decided in a separate lawsuit filed by the person who made the relevant document official. In this case, the court gives the plaintiff a notice to bring the originals of the relevant share certificate and file a separate lawsuit against the relevant notary, requesting to be merged with this lawsuit, and if the lawsuit is filed. "A decision must be made based on the results by examining whether the relevant shares are valid or not, together with all the evidence in the file, and taking into account that the ownership right cannot be lost." Y11 HD. 2018/6061 K.

When a document is alleged to be forged, the court takes the necessary precautions to preserve it by writing down the date on which the document was submitted to the court, sealing it.

When the writing or signature on official bills is denied, and if the forgery of the writing or signature on the bill is proven only by a court decision, this bill cannot be taken as basis for any transaction. As we mentioned above, if there is bad faith in the allegation of forgery, the person making the claim is sentenced to compensation. According to Article 213 of the Code of Civil Procedure:

"If the party who is found to be wrong as a result of the allegation of forgery is in bad faith, it is sentenced to pay the hearing fee for each hearing postponed for this reason and, in case of demand, to compensate the damages suffered by the other party.

When the signature or writing on the official document is denied, the above fee amount is applied twice.

If the parties give up their allegations of fraud before deciding to conduct an expert examination, the judge may reduce the compensation or not award compensation."

falsification of the promissory note - protrusion and deletion

If there are any errors or omissions after the bill is issued, these can be corrected. However, the corrections made must be approved. The best way to do this is to sign the changes made. According to Article 207 of the Code of Civil Procedure; If the protrusion, scraping or erasure on the bill is not separately approved, it will not be taken into consideration in case of denial. If such protrusion, scraping or erasure is deemed by the court to affect the validity and meaning of the document, the document may be deemed partially or completely invalid.

According to the decision of the 12th High Court of Appeals No. 2013/21807 K.; "If the existing protrusion or right and deletion under the text of the deed is not separately confirmed, it is null and void in case of denial. In order for changes made to the promissory note to be valid, they must be approved by the drawer by signature or initials. If an unrepaired protrusion, scraping or erasure is detected, an evaluation is made according to the condition of the bill before correction."

Another Supreme Court decision is as follows:

"In order for the changes made on the promissory note to be valid, they must be approved by the drawer by signature or initials. If an unrepaired protrusion, scraping or erasure is detected, an evaluation is made according to the condition of the document before the amendment. On the other hand, since the examination of the allegation of falsification requires special and technical knowledge to resolve it, in accordance with Article 266 of the Civil Code, it cannot be concluded that there is or has not been falsification without an expert examination by the judge. In line with the order of reversal, the court must decide whether the check subject to follow-up has been falsified on the date of drawing, and if so, the date of drawing of the check before the falsification has been determined by expert examination, and whether it has been submitted to the addressee bank in its current form before the falsification, and decide according to the result to be obtained. "Y12 HD. 2019/15736 K.

According to Article 81 of the Notary Law; In notary transactions, projections that do not bear the signature of the relevant person and the approval of the notary are not valid. Protrusions cannot be handwritten.

OBLIGATION OF PROOF BY DEED

At the beginning of our review topic, we stated that the promissory note is conclusive evidence within the meaning of the HMK. In this respect, the promissory note constitutes one of the important means of proof. If the dispute is proven through evidence, the judge will not be able to make an evaluation on this issue.

Although the obligation to prove with a deed is understood in law as proof with conclusive evidence, it is wrong to reduce conclusive evidence only to the deed. Because there is also definitive evidence other than the deed. The concept of prohibition of proof with witnesses is also used for the obligation to prove by deed.

According to Article 200 of the Code of Civil Procedure, for the year 2022, legal transactions carried out for the purpose of birth, reduction, transfer, modification, renewal, postponement, recognition and redemption of a right must be proven with a promissory note if the amount or value at the time of their execution exceeds six thousand six hundred forty Turkish Liras (6.640,00 TL). Even if the amount or value of these legal transactions falls below six thousand six hundred and forty Turkish Liras (6.640,00 TL) for a reason such as payment or relief from debt, it cannot be proven without a promissory note.

The amount written above is evaluated over the entire legal transaction. Legal transactions exceeding this amount cannot be proven with witnesses, even if they are subject to a partial lawsuit. For example, you cannot file a partial lawsuit for 4,000 TL of a receivable of 100,000 TL and this case cannot be proven with a witness. In a Supreme Court decision on the subject, the following provision was made:

"The case is about the claim for receivables. The case is a partial lawsuit due to its nature. The creditor is not obliged to file a lawsuit for the whole of his receivable, but can make a certain part of his receivable the subject of a lawsuit for the time being. However, in case the creditor files such a partial lawsuit, it is necessary to determine the exact amount of the receivable that can be claimed, as in the lawsuits filed for the entire receivable. In the case in question, the court determines the amount that the plaintiff can demand exactly and without any hesitation, even if it is a partial lawsuit, and from now on, the receivable is the subject of the lawsuit based on the demand. "While a judgment should be made regarding the part of the transaction, a written judgment without determining the full and precise amount of compensation that can be claimed is contrary to procedure and law and requires reversal." Y13 HD. K. 2019/12878

Here, it is necessary to focus on lease agreements. In cases arising from the lease agreement, the annual rent amount is taken into consideration. If the annual rental amount is more than 4,880 TL, the rental agreement cannot be proven by witnesses.

EXCEPTIONS TO THE OBLIGATION TO PROVE WITH A DEED

There are some exceptions to the main rule above. First of all, an exception to this rule is made in the second paragraph of Article 200 of the law. Accordingly, if there is the explicit consent of the other party, proof with witnesses will become possible. If you notice, explicit consent is mentioned here. Therefore, remaining silent in the face of witness evidence cannot be interpreted as acceptance. If a party wants to prove a legal transaction that needs to be proven with a document, with a witness, the judge must remind the other party that the legal transaction that needs to be proven with a witness must be proven with a document, and that the witness can be heard only if he/she consents.

Another exception is included in Article 202 of the HMK. According to the relevant article; In cases where proof is required, a witness can be heard if the beginning of evidence is found. Due to the importance of the subject, detailed explanations will be given below about what the beginning of evidence is.

In case of existence of an evidentiary contract, the rule of obligation to prove by deed will no longer apply. The Supreme Court of Appeals stated this situation in its decision numbered HGK 2020/485 K.:

"Another exception to the prohibition of proof with witnesses against the deed is the case of an evidence contract between the parties regarding proof with witnesses. According to the decision of the Grand General Assembly of the Supreme Court of Appeals dated 18.03.1959 and numbered 1958/18 E., 1959/21 K., since the ban on proof with witnesses is aimed at preventing false testimony and protecting the interests of the parties in the case, the principles regarding the prohibition of proving legal works with witnesses whose value exceeds a certain amount are included in the law with the idea of public order. Since it is not one of the stipulated provisions, witnesses may be heard with the express consent of the parties."

You can find our more detailed explanations regarding the evidence contract in our article titled Showing Evidence .

Definitive evidence is not required to prove legal acts and torts.

We have mentioned above the exceptional cases other than HMK 203. In Article 203 of the Code of Civil Procedure, the exceptions to the obligation to prove by deed are listed one by one and in limited numbers. These situations are:

• Transactions between descendants and descendants, siblings, spouses, father-in-law, mother-in-law, and bride and groom.
• Legal transactions that are customary not to be bound by a deed, depending on the nature of the business and the situation of the parties.
• Transactions carried out in cases where it is impossible or extraordinary difficulty to obtain a bill, such as fire, shipwreck, earthquake.
• Allegations of excessive use due to lack of will in legal proceedings.
• Allegations of collusion by third parties against legal transactions and bills.
• The situation where the owner of a bill has evidence or signs that strengthen the belief that it was lost in any way due to an unexpected event or a compelling reason, or in the hands of an officer or notary public who was duly delivered to it.

Since it is materially or morally difficult to bind the legal transaction to a deed in all of the above-mentioned cases, the legislator has granted the freedom of proof with witnesses for these legal transactions.

Legal transactions between close relatives can be proven by witnesses. However, the concept of close relatives only applies to persons written in the law. Legal transactions between persons other than these must be proven by a deed. For example, in a trial between uncle and nephew, the rule of evidence will be applied.

The issue of proof of legal transactions between spouses should be emphasized. It should not be forgotten that, according to this rule, legal transactions occurring during the marriage process can be proven by witnesses. The rule only covers legal transactions that occur during the marriage process. In addition, if there is a transaction between close relatives that is bound by a deed, the contrary cannot be proven with a witness. An example Supreme Court decision is as follows:

"The case is a request to receive jewelry due to the dowry bill made before the marriage. In the incident, the defendant wanted to hear a witness, but it is not possible to hear a witness in this case according to the provisions of HMK 189, 193, 200. The court stated that if the plaintiff consents to hearing a witness, then the witness can be heard in this case, otherwise the provisions of the law stating that written evidence must be submitted were not clearly reminded and this reminder was not recorded in the minutes. Since there is no clear consent of the plaintiff regarding proof, it is clear that it is not possible to prove the defendant's defenses with a witness." YHGK 2020/485 K.

Teamül means tradition. In order for witnesses to be heard based on the provision of Article 203-1/b of the HMK, the element of custom must be fulfilled and it must have become a custom in an environment not to bind any legal transaction to a deed, and this issue must have gained a stable quality over time by being followed by everyone, and also this custom must be believed in the public.

A precedent Supreme Court decision regarding custom is as follows:

"In the concrete case, the plaintiff claims that he handed over the lambs to the defendants to take care (shepherding) for a fee, and the defendants deny the contractual relationship. There is no written contract between the parties. Pursuant to the 288th and subsequent articles of Civil Code No. 1086 (Article 200 of Civil Code No. 6100), witnesses cannot be heard in terms of quantity in the incident, and the defendants did not consent to hearing witnesses. Based on the provision of Article 293/4 of the Code of Civil Procedure (Article 203/1-b of the Code of Civil Procedure numbered 6100), in order for witnesses to be heard, the element of custom must be fulfilled and it must have become a custom for any legal transaction to be recorded in a given environment, and this practice must have become stable over time, and this practice must be believed by the public. However, the court has not conducted an investigation on this matter.

The court should conduct the necessary research and examination as to whether there is a custom in the region that agreements regarding livestock care (shepherding) are not bound to a deed within the framework of the above-mentioned principles, and if it is understood that it has become a custom, the plaintiff's witnesses should be heard and a decision should be made according to the result to be obtained, but it is not considered right to make a decision as a result of incomplete examination and research. Y3HD 2013/2260 K.

In doctrine, the dominant view is that legal transactions between people living together will be proven by witnesses due to custom. We also agree with this opinion. However, the Supreme Court ruled otherwise in a recent decision. The relevant decision is as follows:

"Although it was decided to reject the case by accepting that the defendant paid the amount he collected from the bank to the plaintiff, based on the statement of the defendant's witness, on the grounds that it was customary between the parties not to bind the work to a promissory note, depending on the nature of the work, in accordance with HMK Article 203 / 1-b, as the parties were uncle and nephew and lived together;

Taking into consideration that there is no kinship between the parties, which is envisaged in Article 203/1-a of the Civil Code, and which is listed among the exceptions to the rule of proof of proof by deed, and that the cohabitation of the plaintiff and the defendant cannot be accepted within the scope of the exception stipulated in Article 203/1-b of the Civil Code, the defendant can only prove his defense of payment with written evidence. "The fact that the decision was made as a result of erroneous evaluation without taking into account these issues explained by the court is against the procedure and the law and requires reversal." Y3HD. 2021/2944 K.

Impairment of will in legal proceedings can be proven with a witness. Gabin, mistake (error), cheating and intimidation can be proven with a witness. As a matter of fact, in the decision numbered 2012/10436 of the Supreme Court of Appeals 1st HD, this situation is related to the request for title deed annulment and registration based on the legal grounds of mistake, fraud, fraud. The court decided to reject the case on the grounds that the claim must be proven with absolute written evidence. However, in legal transactions such as error, fraud and fraud, it is possible to prove the allegations of impairment of will and excessive use with witnesses and all kinds of evidence, even if there is no written document. Error is also mistaken in fraud. "There is deception. While fraud can be proven with all kinds of evidence, the exercise of the right of cancellation is not subject to any form." It is stated as follows.

Article 203/d of the Code of Civil Procedure stipulates that excessive third parties can prove their allegations of collusion with witnesses. This rule only covers collusion claims by third parties. If the parties will allege collusion against each other, then collusion can only be proven with a document. The rule will not change even in the case of a kinship relationship. An example Supreme Court decision regarding this situation is shared below:

"Even if the contract was made between close relatives mentioned in Article 293 of the same law, the allegation of collusion can only be proven with written evidence. In the concrete dispute, the defendant alleging collusion relied on witness statements and did not submit a written document proving his claim of collusion between the parties, nor did he put forward any evidence proving the invalidity of the promise of sale contract made officially. The court must accept the case." Y14 HD. 2011/433 K.

In terms of proving legal acts, there is no obligation to prove with a deed. For this reason, legal acts such as workers' overtime work, work done on public holidays, and the statute of limitations learning date can be proven by witnesses.

WHAT IS THE START OF EVIDENCE?

We stated above that the legal action can be proven with a witness if there is a beginning of evidence. Under this heading, we will try to explain what the beginning of evidence is.

HMK's 202/2. According to the article; "The beginning of the evidence is the document given or sent by the person or his representative against whom it is alleged, which indicates the legal transaction in question as probable, although it is not sufficient to completely prove the legal transaction in question.

The following expressions were used in the Supreme Court decisions regarding the beginning of the evidence:

"Although it is not considered sufficient to prove the entire dispute between the parties, it is from the hand of the other party that will indicate the occurrence of this (such as a promissory note or letter written by hand but not signed by the believer, a document written on a typewriter or computer but bearing the initials of the believer, fingerprinted or sealed promissory notes that have not been duly approved)"

An unsigned promissory note filled in the debtor's handwriting, a document bearing the initials of the other party even if written on a computer, evidence such as an e-mail, photograph, film, SMS, voice recording sent by the party alleged against him are also accepted as the beginning of evidence. Expired promissory notes and checks are accepted as evidence.

According to the decision of the 21st Civil Chamber of the Supreme Court of Appeals No. 2020/1951 K.; If the wage amount exceeds the limits specified in Article 288 of the Civil Code (Article 200 of the Civil Procedure Code), the actual wage that needs to be determined is; It is possible to prove it with documents such as money receipts, bank records, commercial book records, wage slips showing the monthly wage with the employee's signature, provided that they are prepared with legal validity.

Another Supreme Court decision established the following:

"There is no evidence that the plaintiff's earnings are more than what is reported to the institution, or there is no written document that is sufficient to prove the wage through witnesses, precedent research and similar evidence, the wage is determined by witness statements and precedent wage research in the labor receivables file on the subject, the institution is not a party to the said case, this case with a request for determination of earnings subject to insurance premium is related to public order, the wage determined through witness testimonies and precedent wage research will not be taken as basis in determining the earnings subject to premium, and the plaintiff party has written evidence or the beginning of written evidence." Although it was decided to reject the case, which could not be proven, based on the claim and the grounds that it could not be proven, the written document prepared by one of the defendants, regarding the salary information of the plaintiff, containing the company's stamp and the signature of the company manager, stated that "... working in our company with workplace registry number 24….. with SSK registry number 3……. net 4.150,00 TL per month." "It is understood that he is receiving a salary and there is no lien or deduction on his salary, and the establishment of a verdict as a result of faulty evaluation, without examining that the said document is the beginning of written evidence; and the establishment of a verdict with incomplete examination and without the necessary examination and research in terms of the plaintiff's work with other defendant employers, necessitated reversal." K. 2020/382 Y10 HD.

Bank receipts are accepted as the beginning of evidence. "If it is determined that the receipts for the money deposited into the defendant's bank account are linked to this relationship, they will constitute the beginning of evidence in accordance with Article 202 of the Code of Civil Procedure No. 6100 and cannot be ignored in resolving the dispute. It is undisputed from the witness statements heard that the real estate was transferred to the defendant for security purposes." Y1HD. 2018/14490 K.

An evidence that is accepted as the beginning of evidence is not sufficient on its own to resolve the dispute and a verdict cannot be made based on this evidence alone. However, if this evidence is supported by witness evidence, it can now be evidence against the organizer.

Work contracts should also be mentioned here. As it is known, there is no form requirement in work contracts. However, contracts with a value exceeding the limit specified in the Code of Civil Procedure must be proven with definitive evidence. In such cases, if there is a beginning of evidence, the establishment of the work contract can be proven with witness evidence. It is possible to use documents, e-mail correspondence, SMS and WhatsApp correspondence as the beginning of evidence in terms of proving the contractual relationship. Such a condition is not required to prove the fact of delivery. An example Supreme Court decision is as follows:

"The case is about the annulment of the objection to the enforcement proceedings initiated for the purpose of collecting the work fee arising from the work contract and the request for compensation for denial of execution. In the concrete case, the plaintiff initiated enforcement proceedings on the grounds that the work price was not paid and filed a lawsuit upon objection, and there was no written contract between the parties and the contractual relationship could not be proven with other conclusive evidence. While it is not possible to prove the contractual relationship with a witness according to the amount of the receivable, it is not possible to prove the contractual relationship with the witness, with the plaintiff's express consent and as a beginning of evidence. Since there is no document, the existence of a contractual relationship cannot be proven based on witness statements. The plaintiff must prove his claim with a promissory note or oath evidence, in accordance with the provision of Article 200 of Civil Code No. 6100, depending on the amount of the claim. However, the plaintiff has not been able to prove the contractual relationship with legal evidence. In addition, it has been seen that the plaintiff does not rely on oath evidence separately and clearly, and it will not be possible to remind him of his right to offer an oath. "While it should have been decided to reject the case in its entirety, its partial acceptance was erroneous and the decision had to be overturned." Y15 HD. 2020/128 K.

The following decision states that Facebook correspondence will be accepted as the beginning of evidence:

"The case is about the request for the cancellation of the objection to the follow-up initiated for the collection of the unpaid balance of the immovable property, which was sold with an external sales contract and the title deed was subsequently transferred. In Article 199 of the HMK No. 6100, the concept of document is defined as "The facts in dispute are recorded in electronic form with data such as written or printed text, deed, drawing, plan, sketch, photograph, film, image or sound recording suitable for proof." data and similar information carriers are documents according to this Law." In this case, it must be accepted that the Facebook records relied upon as evidence by the plaintiff are documents within the meaning of Article 199 of the Civil Code No. 6100. Article 202 of the Civil Procedure Code states that "(1) In cases where there is an obligation to prove with a document, if the beginning of evidence is found, the witness can be heard. (2) Although the beginning of evidence is not sufficient to completely prove the legal transaction in question, it is the document given or sent by the person or his representative who makes the legal transaction in question possible and is claimed against him." Such documents have been accepted as the beginning of evidence. Since the defendant also relies on the messages sent by the plaintiff on the internet as evidence, an examination and research must be made in line with the legal principles and principles and a decision must be made according to the result, while establishing a verdict with an incomplete examination in writing is against the procedure and the law and requires reversal." Y13 HD. 2018/7889

Based on this, it should be noted that other social media correspondence, such as duly obtained WhatsApp messages, are accepted as the beginning of evidence. In such cases, there are two conditions for the evidence to be accepted as lawful. These conditions are that the person who wants to present evidence must be a party to the correspondence and that the correspondence must be recorded by him/her.

OBLIGATION TO PROVE WITH A DEED AGAINST THE DEED

According to Article 201 of the Code of Civil Procedure, titled "Prohibition of proof with witnesses against the deed"; Legal actions put forward against all kinds of claims related to the document, which would eliminate or reduce the validity and force of the document, cannot be proven by witnesses, even if the amount is less than two thousand five hundred Turkish Liras. The 2500 TL limit here is 6640 TL for 2022. This rule is also valid for legal actions taken against the promissory note. Promissory note evidence is not required to prove legal acts. Objections and defenses put forward against the deed must be proven with conclusive evidence. In such cases, it is not possible to hear witnesses. As we mentioned above, only the promissory note should not be understood as definitive evidence. The exceptions to the obligation to prove with a promissory note against the promissory note are as follows:

Transactions carried out in cases where it is impossible or extraordinary difficulty to obtain a bill, such as fire, shipwreck, earthquake.

Allegations of excessive use due to lack of will in legal proceedings.

Allegations of collusion by third parties against legal transactions and bills.

Presence of the beginning of evidence.

Allegations that the bill is lost or destroyed.

Tort claims against the promissory note.