Quality of commercial books as evidence

Before examining the quality of commercial books as evidence, we find it useful to make some explanations about commercial books.

COMMERCIAL BOOKS

Commercial books are books in which commercial transactions are recorded by merchants. It should be noted right away that although the regulations regarding commercial books are included in the TCC, the proof provisions are not included in the scope of the law. Proof regulations of commercial books are regulated in the Code of Civil Procedure.

The following regulations regarding commercial books are included in the Turkish Commercial Code;

(1) Every trader is obliged to keep commercial books and to present in his books, in a clearly visible manner, the economic and financial situation of his commercial transactions and commercial enterprise, debt and receivable relationships, and the results obtained within each accounting period, in accordance with this Law. The books are kept in a way that can give third-party experts an idea about the activities and financial situation of the enterprise upon examination within a reasonable period of time. The formation and development of business activities should be monitored from the books.

(2) The trader is obliged to keep a photocopy, carbon copy, microfiche, computer record or similar copy of any document sent regarding his business, in written, visual or electronic form.

(3) Opening approvals of the journal, general ledger and inventory book kept in physical environment and the books listed in the fourth paragraph are made by the notary during establishment and before they start to be used. The opening approvals of these books in the following activity periods are made by a notary public until the end of the month before the first month of the activity period in which the books will be used. The share ledger and the general assembly meeting and negotiation book can continue to be used in the following activity periods without opening approval, provided that there are sufficient pages. Closing approval of the journal is made by a notary public by the end of the sixth month of the following activity period, and closing approval of the board of directors' decision book is made by the notary until the end of the first month of the following activity period. In cases where the opening approval is made by a notary, the notary must search for the trade registry certification. "However, during the registration of joint stock and limited companies in the trade registry, the opening approvals of the books are made by the trade registry directorates." If commercial books are kept in electronic environment, notary or trade registry office approval is not required for the opening of these books and the closing of the journal book and the board of directors' decision book. How commercial books kept in physical or electronic environment will be kept, the time of recording in the books, the form and principles of approval renewal and opening and closing approvals are determined by the communiqué issued jointly by the Ministry of Customs and Trade and the Ministry of Finance.

(4) Books that are not related to the accounting of the business, such as share ledger, board of directors decision book and general assembly meeting and negotiation book, are also commercial books.

(5) Real and legal entities subject to this Law must comply with the provisions of the Tax Procedure Law No. 213 dated 4/1/1961 regarding bookkeeping and recording time, as well as the regulations made pursuant to the authority contained in Articles 175 and 257 of the same Law. The bookkeeping, inventory, preparation of financial statements, capitalization, provisions, accounts, valuation, storage and submission provisions of this Law do not constitute an obstacle to the implementation of the provisions of Law No. 213 and other tax laws regulating the same issues, to determine the tax base in accordance with the tax laws and to prepare financial statements accordingly.

These provisions regulate matters such as the obligation to keep commercial books, opening and closing approvals to be made by a notary, and the obligation to keep. As we mentioned above, regulations regarding proof are included in the Code of Civil Procedure.

WHAT IS THE PROPER KEEPING OF COMMERCIAL BOOKS?

Having the opening and closing approvals of the books aimed at keeping the commercial books in accordance with the procedure; The books are kept in a complete, accurate, timely and orderly manner. A book kept in this way constitutes evidence in favor of its owner if it meets the other conditions explained below.

STORAGE OF COMMERCIAL BOOKS AND DOCUMENTS

Article 64 of the TCC "The trader is obliged to keep a photocopy, carbon copy, microfiche, computer record or similar copy of any document sent regarding his business, in written, visual or electronic form." With the expressions, it imposes an obligation on merchants to keep commercial books. As a complement to Article 64 of the TCC, Article 82 of the TCC obliges commercial books to be kept for 10 years.

LOSS OF TRADE BOOKS

Books and documents that a trader is obliged to keep; If it is lost due to a disaster such as fire, flood or earthquake, or theft, and within the legal storage period, the merchant may request a document to be issued to him from the competent court of the place where his commercial enterprise is located, within 15 days from the date of learning of the loss. This case is filed without an adversary. The court may also request the collection of evidence it deems necessary.

IN WHICH CASES CAN COMMERCIAL BOOKS BE USED AS EVIDENCE?

In order for commercial books to be used to prove a contractual relationship or a receivable, the case must:

1-Both parties must be merchants

2-The dispute must be a commercial case arising from the commercial enterprise of the two parties.

The explanations we have made here are HMK 222/5. It should not be confused with the article. The relevant article states that "Even if one of the parties is not a trader, the other party who is a trader will accept the records in the commercial books; however, if the other party refrains from presenting its books, the party requesting the presentation is deemed to have proven its claim." It says. However, this article relates to situations where commercial books are used as evidence against the owner. A further explanation on this subject will be made below. The explanations we have made under this heading are related to the mutual examination of commercial books. Commercial cases You can review our article for detailed information.

EVIDENTIAL VALUE OF BUSINESS BOOKS

There is no statement in the law as to whether the commercial book is conclusive evidence or not. However, the Supreme Court considered commercial books as conclusive evidence in many of its decisions. As a matter of fact, in a decision dated 13.6.2017 of the 15th Civil Chamber of the Supreme Court of Appeals, "Commercial books are conclusive evidence. Since it is regulated in the law that if they are considered evidence, the contrary must be proven with written or conclusive evidence, it is clearly understood that the Law regulates commercial books as conclusive evidence. Although commercial books are conclusive evidence, they can only be a means of proof within the framework of the conditions in Article 222 of the Code of Civil Procedure." The Supreme Court's opinion in this direction is a stable opinion and there are many examples.

As we stated above, commercial books can only be used in commercial cases where both parties are merchants and the dispute arises from the commercial enterprises of the two parties.

COMMERCIAL BOOKS AS EVIDENCE IN FAVOR OF THE OWNER

The fact that commercial books are evidence in favor of the owner is an exception to the procedural rule that a person cannot use a document he has prepared in his own favor.

HMK's 222/3. Article "In order for the commercial book records kept in accordance with the conditions specified in the second paragraph to be accepted as evidence in favor of the owner and his successors, the records in the commercial books of the other party kept in accordance with the same conditions must not contradict them, or the other party must not submit its commercial books, or the contrary of the book records must not be proven by deeds or other conclusive evidence. "If the commercial books of the other party kept in accordance with the conditions written in the second paragraph do not contain any records on the relevant issue, the commercial books cannot be used as evidence in favor of the owner." These conditions regulate the conditions under which the commercial book can be evidence in favor of the owner, with the following statements stating that the records in favor of and against the owner in the books kept in accordance with the conditions are indistinguishable from each other.

1) Commercial books must be kept completely and in accordance with the law, and opening and closing approvals must be made.

2)Commercial books must confirm each other

3) Failure of the other party to submit its commercial books

4) The book entries are not refuted by promissory notes or other conclusive evidence.

5) The records in the commercial books of the other party kept in accordance with the law do not conflict with these.

6)Both parties are merchants

7) The dispute must be a commercial case arising from the commercial enterprise of the two parties.

It can be listed as follows. If these conditions are present, the commercial book can be used as evidence in favor of the owner.

USE OF COMMERCIAL BOOK AS EVIDENCE AGAINST ITS OWNER

Since all kinds of commercial transactions of merchants are recorded in commercial books, they always have the potential to be evidence against the owner. This is a natural consequence of keeping commercial books. The fact that the commercial book is evidence against its owner is not subject to strict conditions such as being evidence in favor of the owner.

The most important difference is that in order to be evidence against the owner of the commercial book, both parties to the case must be merchants and there is no rule that the dispute should relate to the commercial companies of both parties. According to the provision of HMK 222/5, a non-merchant party may rely on the commercial ledger of the counterparty, who is a merchant, as evidence.

HMK 222/4 Commercial book records that do not have opening or closing approvals and whose records do not confirm each other are evidence against the owner. It is shaped like.

Apart from this, if we need to list some situations where the commercial book is evidence against its owner, this order is as follows;

1- Lack of opening and closing approvals of commercial books, and the records they contain do not verify each other:- HMK art. As regulated in 222/4, commercial books that do not have opening and closing approvals and that do not verify each other in terms of the records they contain, become evidence against the owner.

2- Relying on the Own Books of the Merchant Party of the Dispute: HMK 222/3 "In order for the commercial book records kept in accordance with the conditions specified in the second paragraph to be accepted as evidence in favor of the owner and his successors, the records in the commercial books of the other party kept in accordance with the same conditions must not contradict them or contain no record on the relevant issue, or the contrary of the book records must not be proven by deeds or other conclusive evidence. "The records in favor and against the owner in the books kept in accordance with these conditions cannot be separated from each other." Thus, he clearly stated that the books that are evidence in favor of the owner can also constitute evidence against him.

3- One of the parties can refer to other evidence along with the commercial books of the other party

4- One of the parties accepts only the content of the other party's commercial books

5-Even if one of the parties is not a trader, the trader may rely on the commercial books of the other party. In this case, it may be evidence against the owner of the commercial book.