In commercial and social life, debt relations are frequently established between individuals. However, sometimes the debtor may refrain from paying the due debt. In this case, the creditor has to resort to legal remedies to collect its receivable. In cases such as objection to enforcement proceedings without a judgement or the absence of a strong document proving the existence of the receivable, the creditor must file a “debt claim” in court. An action for debt is an action for performance, which aims to collect an unpaid receivable arising from a debt relationship by a court decision. The most critical issue in these cases is the “burden of proof”.
Legal Framework: Right to Claim and Rules of Proof
The right to claim is basically regulated under the Turkish Code of Obligations numbered 6098. The procedure of the claim is governed by the Code of Civil Procedure No. 6100 (CCP). Article 190 of the CCP sets out the general rule of burden of proof: “Unless there is a special provision in the law, the burden of proof belongs to the party who draws a right in his favour from the legal conclusion attached to the alleged fact.” According to this principle, the plaintiff (the creditor), who claims the existence of his/her receivable, is obliged to prove this claim. If the defendant (debtor) claims that he/she has paid the debt or that the debt never arose, he/she has to prove this defence.
Burden of Proof and Evidence
In receivables cases, proof may be provided by various evidences. However, the CCP stipulates that legal transactions over a certain amount must be proved by deed (written document). This rule is called “obligation of proof by deed”. For receivables above this monetary limit, which is updated every year, witnesses cannot be heard; the existence of the receivable must be proved by written evidence.
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Written Evidence (Conclusive Evidence):
- Promissory Note/Contract: A promissory note, contract or protocol signed between the parties.
- Invoice: A commercial document showing the delivery and price of goods or services.
- Bank Receipt: Bank records showing that a loan has been made or payment has been made.
- Warning Notice: A notarised or registered notice sent for the payment of the debt.
- Commercial Books: In disputes between merchants, duly kept commercial books.
- Written Evidence: A document (e.g., an e-mail, a letter) from the other party that shows that the alleged legal transaction is possible, even if it does not fully prove the alleged legal transaction.
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Discretionary Evidence:
- Witness Statement: Witnesses may be heard for receivables below the limit of the obligation of proof by deed or if there is the beginning of written evidence.
- Expert Examination: An expert may be consulted to clarify calculations or technical issues.
- Oath: The party who has no other evidence may, as a last resort, offer an oath to the other party.
Claims Litigation Process
- Preparation of the Statement of Claim: The plaintiff prepares a petition explaining the amount of the claim, the basis, the maturity and default status of the debt. All evidence proving the claim shall be attached to the petition.
- Competent and Authorised Court: Depending on the value of the case and the capacity of the parties, the competent court may be the Civil Court of First Instance, the Commercial Court of First Instance or the Consumer Court. The competent court is usually the court of the defendant’s domicile.
- Trial: After the lawsuit is filed, the stages of exchange of petitions, preliminary examination, investigation and oral proceedings are followed. The court evaluates the evidence presented by the parties and makes a decision on the existence and amount of the claim.
- Execution of the Judgement: If the court decides to accept the lawsuit, the plaintiff may initiate “enforcement proceedings with judgement” against the debtor based on this court decision (judgement) and collect the receivable through attachment.
A debt claim is an important legal remedy for the collection of unpaid receivables. Success in these lawsuits largely depends on proving the existence of the receivable with evidence in accordance with the law. In accordance with the principle of “Müddei obliged to prove his claim” (the claimant must prove his claim), the plaintiff claiming to be a creditor must support this claim, especially with written evidence. Since there is an obligation of proof by deed for receivables over a certain amount, it is of great importance to put the transactions in writing when establishing a debt relationship in order to prevent possible disputes in the future. Due to the complexity of the debt claim process and the technical details of the rules of proof, it is essential to get legal support from a lawyer in order to manage the case correctly and avoid loss of rights.