The Debate over Electronic Data as Evidence (in the Context of the Rule of Proof in Writing)

With the advance and spread of technology, people today communicate mostly in digital form, using emails, WhatsApp messages, voice recordings, videos and photos to express their requests and convey them digitally. Over time, this has made the evidentiary status of electronic data a matter of debate and has brought with it a number of legal problems and questions. It should first be noted that Turkish law follows the system of “free evidence”. Accordingly, where the law does not require proof by a specific means of evidence, it is possible to rely on other evidence not regulated by law (HMK Art. 192). For example, data in electronic form that has been obtained lawfully also qualifies as evidence. The real question here is whether such evidence can be used in cases where the law requires proof by a specific means of evidence. In this article, we will examine electronic data that qualifies as prima facie evidence, in terms of its evidentiary status, in the light of decisions of the Court of Cassation.

1. What is Prima Facie Evidence? What are its basic elements? What do Document, Data and Electronic Data in the definition of prima facie evidence include?

In its most general sense, a written instrument is a written document that is signed or approved by a natural or legal person in order to constitute evidence of a fact and that constitutes evidence against the signatory.

Article 200 of our Code of Civil Procedure (HMK) regulates the requirement of proof by written instrument, while Article 201 provides that any assertion made against any kind of claim based on a written instrument, and capable of eliminating or reducing the effect and force of that instrument, can only be raised by means of another written instrument, and that proof by witnesses is not possible where a written instrument is involved.

In Article 202/2 of the Code of Civil Procedure, the legislator has set out the definition of prima facie evidence:

“Prima facie evidence is a document which, although not sufficient to fully prove the legal transaction alleged, makes that legal transaction appear probable and which has been given or sent by the person against whom it is invoked or by that person’s representative.”

Likewise, by stating in Article 202/1 of the HMK that “Where proof by written instrument is required, witnesses may be heard if there is prima facie evidence.” the law makes it clear that, although witnesses cannot be heard where proof by written instrument is mandatory, the exception to this is “prima facie evidence”.

Under this article, the basic element of prima facie evidence is that it is a document, given or sent by the person against whom it is invoked or by that person’s representative, that makes the legal transaction appear probable. A document, which is one of the basic elements of the definition of prima facie evidence, is defined in Article 199 of the HMK:

“Data such as written or printed texts, written instruments, drawings, plans, sketches, photographs, films, image or sound recordings, as well as data in electronic form and similar information carriers, that are capable of proving the facts in dispute are documents under this Law.”

Now that a document has been defined, it is appropriate to define data, which appears within the definition of a document. Data and Electronic Data are defined in paragraphs “ı” and “çç” of Article 4 of the Regulation on the Conduct of Administrative and Clerical Services of the Regional Courts of Appeal, the Ordinary Courts of First Instance and the Chief Public Prosecutor’s Offices.

“Data: any value that can be processed by a computer,

Electronic data: records generated, transmitted or stored by electronic, optical or similar means,”

Many records, such as emails, WhatsApp messages, voice recordings, video and photo images, faxes and the like, can be counted within the definition of electronic data. For something to be regarded as electronic data, it must be generated, transmitted and stored in electronic form. Accordingly, records generated outside the electronic environment are not electronic data.

2. What is the evidentiary status of a secure electronic signature?

The definition of a secure electronic signature is given in paragraph (b) of Article 3 of the Electronic Signature Law:

“Electronic signature: electronic data that is attached to other electronic data or logically linked to electronic data and is used for the purpose of authentication,”

Article 4 of the Electronic Signature Law defines a secure electronic signature. Accordingly, a secure electronic signature derives its reliability from the possibility of identification and from the fact that it cannot be repudiated:

“A secure electronic signature is an electronic signature which: a) is exclusively linked to the signatory, b) is created by means of a secure electronic signature creation device under the sole control of the signatory, c) enables the signatory to be identified on the basis of a qualified electronic certificate, d) enables detection of whether any subsequent change has been made to the signed electronic data.”

Because of the reliability of the secure electronic signature, Article 205/2 of the HMK provides that it has the force of a written instrument.

“Electronic data created in due form with a secure electronic signature has the force of a written instrument.”

Similarly, Article 5 of the Electronic Signature Law states that, with certain exceptions, a secure electronic signature has the same legal effect as a handwritten signature.

“A secure electronic signature has the same legal effect as a handwritten signature. Legal transactions that the law subjects to official form or to a special ceremony, and guarantee agreements other than bank letters of guarantee, cannot be executed with a secure electronic signature.”

In conclusion, electronic data signed with a secure electronic signature has the force of a written instrument. Data of this kind is deemed conclusive evidence unless proven otherwise. The judge examines ex officio whether the electronic signature is secure. Where no secure electronic signature is used, on the other hand, electronic data will have the status of prima facie evidence.

3. What is the legal nature of emails, electronic messages, voice recordings, photos and video recordings as prima facie evidence?

Under the former Code of Civil Procedure No. 1086 (HUMK), prima facie evidence had to be in writing. However, under HMK No. 6100, the writing requirement has been removed. Today, many communication-related transactions carried out by merchants or consumers take place electronically. It cannot be said that such transactions, carried out without a secure electronic signature, constitute conclusive evidence. However, it is settled by decisions to this effect issued by various civil chambers of the Court of Cassation that they will be regarded as prima facie evidence.

An electronic document is less reliable than a secure electronic signature. Where there is an objection concerning the existence of the electronic document in question, the court must first investigate whether the electronic correspondence/communication between the parties actually exists. If one party wishes to rely on an electronic document as prima facie evidence but the other party denies the existence or content of that document, what the court must do is determine, by resorting to other evidence, above all a court-appointed expert, whether the document was sent by the person against whom it is to be used or by that person’s attorney. However, if there is no objection to the existence of the email, the email is accepted as prima facie evidence and witnesses are thus heard. Here, in the event that a secure electronic signature is denied, Article 210 of the Electronic Signature Law guides the courts on what must be done:

“If data created with a secure electronic signature is denied and the judge cannot reach a conclusion after hearing the party denying the data, an examination by a court-appointed expert is ordered.”

Evidentiary status of emails:

“Under Articles 199 and 202 of the HMK, emails are documents in the nature of prima facie evidence. Therefore, contrary to the court’s finding, it is not mandatory that they be signed with an electronic signature. In this case, since the plaintiff also relied on witness evidence, the court should have heard the plaintiff’s witnesses named in relation to whether the service was provided and ruled in accordance with the resulting conclusion; dismissing the action on the basis of an incomplete examination and erroneous reasoning was not found to be correct.” (Court of Cassation, 23rd Civil Chamber, Docket No. 2016/507, Decision No. 2018/3649, 12.6.2018)

“In the present action, the plaintiff, by way of amendment of claim (ıslah), requested collection from the defendant of a total of 783,337.00 TL sent to the defendant on various dates, together with rediscount interest running from the payment dates; the defendant requested dismissal of the action. The court dismissed the action on the ground that the plaintiff could not prove by written evidence that the money had been sent to the defendant for the purchase of real property; the judgment was appealed by the plaintiff. To prove the claim, the plaintiff relied on an email allegedly sent by the defendant and on bank records. The email in question, which the defendant also admits, constitutes evidence under Article 199 of the HMK. Moreover, some of the transfers sent from the plaintiff’s personal account to the defendant’s account bear the descriptions “This is payment for Dalyan”, “Dalyan land plot”, this is payment for Dalyan field”. Accordingly, the content of the email and the transfer descriptions corroborate each other, and since the content of the email constitutes prima facie evidence, it is possible to hear witnesses, and the witness statements also support the plaintiff’s allegations. That being so, the court should have taken into account that the plaintiff proved the case with respect to the amounts sent from the plaintiff’s personal account with the descriptions “This is payment for Dalyan”, “Dalyan land plot”, “this is payment for Dalyan field”, calculated those amounts and ruled according to the result; rendering a decision as written on the basis of an erroneous assessment is contrary to procedure and law and requires reversal.” (Court of Cassation, 13th Civil Chamber, Docket No. 2017/10021, Decision No. 2018/3126, 15.3.2018)

Another point that should be noted here is the question of what happens where there is prima facie evidence but no witness evidence. In such cases, the court should ask the party against whom the prima facie evidence is submitted to make a statement as to whether the prima facie evidence actually exists and as to its content, and should request an explanation from that party.

“By the present action, the plaintiff, alleging that the plaintiff had sent money to the defendant as a loan by bank transfer on various dates and that the defendant had paid part of the debt but the remaining part had not been paid, requested that the objection to the enforcement proceedings initiated by the plaintiff to collect the receivable be set aside. Article 199 of the HMK states: ”Data such as written or printed texts, written instruments, drawings, plans, sketches, photographs, films, image or sound recordings, as well as data in electronic form and similar information carriers, that are capable of proving the facts in dispute are documents under this Law.” By this provision, emails and telephone messages have also been accepted as documents. Article 202 of the HMK likewise provides: (1) Where proof by written instrument is required, witnesses may be heard if there is prima facie evidence. (2) Prima facie evidence is a document which, although not sufficient to fully prove the legal transaction alleged, makes that legal transaction appear probable and which has been given or sent by the person against whom it is invoked or by that person’s representative.”, and by this provision such documents have been accepted as prima facie evidence. In the present dispute, although the plaintiff bears the burden of proving the case, the plaintiff submitted as evidence email exchanges allegedly sent by the defendant and containing a statement acknowledging the debt in dispute. In this Chamber’s reversal judgment dated 05.10.2017, Docket No. 2017/8060, Decision No. 2017/9191, it was stated that the plaintiff could not prove the claim by witness evidence, but no assessment was made of the email printouts submitted by the plaintiff. That being so, pursuant to Articles 169 et seq. of HMK No. 6100 (Articles 230 et seq. of the HUMK), the defendant should have been served with an annotated summons for interrogation (isticvap), asked whether the emails relied on by the plaintiff as evidence were sent by the defendant and where the debt relationship mentioned in the emails arose from, and made to give an explanation about the email printouts, and a decision should then have been rendered according to the resulting outcome; dismissing the action as written on the basis of an incomplete examination is contrary to procedure and law and is a ground for reversal.” (Court of Cassation, 13th Civil Chamber, Docket No. 2019/1502, Decision No. 2020/3135, 10.3.2020)

Posts made on social media must have been made personally by the account holder or by persons sharing the same environment in the context of the event in question. Otherwise, the post will be characterized as unlawful evidence within the scope of HMK Art. 189/2 and will not be taken into account by the court in proving the event.

“Furthermore, it may be considered that posts made on social media accounts can be used as evidence only by the account holder or by persons in the same sharing environment (Facebook/WhatsApp). In other words, where a fake profile is created and posts are made, or where posts made on personal profiles without the knowledge, consent and permission of the account holder are submitted as evidence, these must be regarded as unlawful evidence within the scope of Article 189/2 of HMK No. 6100.” (Court of Cassation, 3rd Civil Chamber, Docket No. 2016/14742, Decision No. 2017/2577, 7.3.2017)

If it turns out that the email was sent by someone else, it must then be examined whether that person was a representative. This is because, under HMK Art. 202/2, the document at issue in the case may also be sent by a representative. In a decision on this matter, the Court of Cassation held that, since the continuing needs of the family were not at issue and since one spouse had no authority to represent the other, the email correspondence could not be regarded as prima facie evidence on the ground that it had not been conducted by a representative.

“However, the emails accepted by the court as prima facie written evidence did not originate from the defendant ...; they were not sent by the defendant. When it is assessed whether the spouse of the defendant ... acted as the defendant’s representative, it is accepted under Article 188 of the Turkish Civil Code No. 4721 that each spouse represents the marital union "for the continuing needs" of the family for the duration of their life together, and that for the "other needs" of the family one spouse may represent the union "where authorized by the other spouse or by the judge for just cause, or where the interest of the union makes delay inadvisable and the consent of the other spouse cannot be obtained because of illness, absence elsewhere or similar reasons"; since the work at issue that the plaintiff claims to have performed does not relate to the "continuing needs of the family" and the other circumstances provided for by law have not occurred either, it is not possible to accept the emails allegedly sent by the spouse of the defendant ... as prima facie written evidence relating to the contract allegedly concluded with the defendant ..., or to establish by hearing witnesses that a contractual relationship was formed. Nor is it possible to base the judgment on the statements of the witnesses heard by the court.” (Court of Cassation, 15th Civil Chamber, Docket No. 2016/2342, Decision No. 2017/3987, 16.11.2017)

Evidentiary status of electronic messages:

In addition to SMS, applications such as WhatsApp, Facebook, Twitter and Instagram also fall within the scope of electronic messages. The Court of Cassation accepts correspondence and posts obtained through such means as prima facie evidence.

“...stated that the plaintiff, in a message sent to him online, had said that the remaining debt for the house was 5,000.00 TL and had asked him for this amount. The action concerns a request to set aside the objection to the enforcement proceedings initiated to collect the unpaid balance of the price of real property sold under an informal sale agreement and subsequently transferred by title deed; in his petition submitted to the competent court and filed on February 1, 2017, the defendant stated that the plaintiff had sent him a message via social media (Facebook) dated April 7, 2016 reading "Mr. ..., you have sold the flat. You paid 105 thousand lira, you still owe me 5 thousand lira. If you don’t pay, I will give the documents I have to a lawyer. My phone is 0532 ... ", and he submitted the contents of those messages to the file as an annex to his petition. It is understood from the file that neither the court of first instance nor the regional court of appeal considered these submitted messages, and that the case was handled and concluded on the basis of the other evidence. Article 199 of HMK No. 6100 regulates the concept of a document as follows: "Data such as written or printed texts, written instruments, drawings, plans, sketches, photographs, films, image or sound recordings, as well as data in electronic form and similar information carriers, that are capable of proving the facts in dispute are documents under this Law." In that case, it must be accepted that the Facebook records relied on as evidence by the plaintiff side are documents within the meaning of Article 199 of HMK No. 6100. Article 202 of the HMK also provides that, where proof by written instrument is required, witnesses may be heard if there is prima facie evidence. Prima facie evidence is a document which, although not sufficient to fully prove the legal transaction alleged, makes that legal transaction appear probable and which has been given or sent by the person against whom it is invoked or by that person’s representative.” and by this provision such documents have been accepted as prima facie evidence. Since the defendant also relied as evidence on the messages sent online by the plaintiff, the court should have carried out an examination and investigation in line with the principles and rules explained just above and ruled according to the result; establishing judgment as written on the basis of an incomplete examination is contrary to procedure and law and requires reversal.” (Court of Cassation, 13th Civil Chamber, Docket No. 2018/406, Decision No. 2018/7889, 12.7.2018)

As stated above, if there is a dispute between the parties as to whether the electronic data submitted to the file constitutes evidence and the judge cannot reach a conclusion, the judge may order an examination by a court-appointed expert to determine whether the electronic data qualifies as prima facie evidence.

“Although Article 199 of the HMK provides: ”Data such as written or printed texts, written instruments, drawings, plans, sketches, photographs, films, image or sound recordings, as well as data in electronic form and similar information carriers, that are capable of proving the facts in dispute are documents under this Law.”, it is seen that the court did not assess the WhatsApp correspondence submitted by the plaintiff and the allegation that a loan was taken from the plaintiff. That being so, the court should have assessed the correspondence submitted to the file by the plaintiff and, if necessary, obtained a report capable of review following an examination by a court-appointed expert in the subject of the dispute, investigated whether the records qualify as documents, and, taking into account Article 202 of the HMK, also assessed whether such documents are to be accepted as prima facie written evidence, and rendered a decision in accordance with the resulting conclusion; disregarding this aspect and establishing judgment as written on the basis of an incomplete examination is contrary to procedure and law and requires reversal.” (13th Civil Chamber, Docket No. 2016/18591, Decision No. 2019/7222, 13.6.2019)

Evidentiary status of voice recordings, photos and video recordings:

With recent technological developments, we can always carry cameras and recording devices with us and record and document every moment. We stated above that all the data we document in this way are documents and can therefore constitute evidence. Accordingly, a voice recording must also be accepted as prima facie evidence. Otherwise, there would be a breach of the law. This is because the law has imposed no such restriction. What matters here is the declaration of intent and whether it can be understood. That said, all evidence and all prima facie evidence must be obtained lawfully.

“During the criminal proceedings, the plaintiff submitted to the court an audio tape allegedly containing candid admissions made by the defendant, during a meal at which alcohol was served, concerning the instrument in dispute, and the tape was transcribed by a court-appointed expert. In this recording, the person alleged to be the defendant clearly refers to the document in dispute. The words used and the manner of expression are regional in character, and the sentences are inverted and ungrammatical. However, from an assessment as a whole of these conversations, which the expert converted into a 13-page text, it is understood that the speaker candidly explained that, in cooperation with others and by taking advice and instructions from them, he had obtained a paper signed for another purpose and submitted to public institutions and drawn up the instrument in dispute even though there was in fact no debtor-creditor relationship, and that similar instruments had even been created in the same way concerning many persons other than the defendant. Although the defendant argued in the criminal proceedings that the voice in this recording was not his, İbrahim Tuzcu, who was heard as a witness in the same proceedings and stated that he was a distant relative of the defendant, stated that he had personally recorded the tape in question during a meal at which alcohol was served and two other persons were present, after the plaintiff’s complaint about the matter had reached him, and the other two persons present also confirmed this fact in their statements taken at the preliminary investigation stage, which are also in the criminal file. As noted above, audio tapes do not by themselves have evidentiary value, because it is not technically possible to establish beyond doubt to whom the recorded words belong. However, when assessed together with the contents of the file as set out from the beginning, it is clear that, since the statements in the recording are fully consistent with the other evidence in the present case, the recording constitutes credible supporting evidence, and that it must be accepted that the words in the transcribed text belong to the defendant, that the defendant thus made an extrajudicial admission that the instrument in dispute was not based on a real debt, and that this admission is corroborated by the other facts and evidence described. That being so, while the court should have accepted the action, rendering judgment as written on the basis of an incomplete examination, solely on the ground that the criminal proceedings against the defendant ended in acquittal, and without making any other assessment, is contrary to procedure and law and is a ground for reversal.” (Court of Cassation, 13th Civil Chamber, Docket No. 1999/9505, Decision No. 2000/1439, 22.2.2000)

The Court of Cassation has clearly stated that videos and photographs constitute prima facie evidence. These means of evidence may also become reliable through examination by a court-appointed expert.

“That being so, the court should have assessed the camera recordings submitted to the file by the defendant and, if necessary, obtained a report capable of review following an examination by a court-appointed expert in the subject of the dispute, investigated whether the recordings qualify as documents, and, taking into account Article 202 of the HMK, also assessed whether such documents are to be accepted as prima facie written evidence, and rendered a decision in accordance with the resulting conclusion; disregarding this aspect and establishing judgment as written on the basis of an incomplete examination is contrary to procedure and law and requires reversal.” (Court of Cassation, 13th Civil Chamber, Docket No. 2016/26490, Decision No. 2019/2911, 5.3.2019)

“(…) although it was stated that the cash withdrawals from ATMs may have been made by C. I., to whom the defendant (counter-plaintiff) H.B. claims to have given the bank card, or by persons working for C. I., but that this could possibly be established through an examination to be carried out if the camera recordings monitoring the ATMs (provided that a camera system had been installed) were requested from the relevant banks", it is understood that the court did not carry out any investigation on these matters. As is known, Article 199 of HMK No. 6100 provides that "data such as written or printed texts, written instruments, drawings, plans, sketches, photographs, films, image or sound recordings, as well as data in electronic form and similar information carriers, that are capable of proving the facts in dispute qualify as documents under this law", and the first paragraph of Article 202 of the same law emphasizes that "where proof by written instrument is required, witnesses may be heard if there is prima facie evidence, and the second paragraph that prima facie evidence is a document which, although not sufficient to fully prove the legal transaction alleged, makes that legal transaction appear probable and which has been given or sent by the person against whom it is invoked or by that person’s representative". That being so, the court should have corresponded with the banks that issued the bank cards with which the defendant (counter-plaintiff) claims to have paid the loan debt, asked whether there is a camera system where the ATMs are located and, if a camera system exists, obtained these recordings and had them examined by a court-appointed expert, determined whether money was withdrawn at various times from the ATM account of the defendant H. B. by the defendant C. I. or by persons working for C. I., as alleged, and ruled according to the result; reaching a conclusion on the basis of an incomplete examination was not found to be correct.” (Court of Cassation, 1st Civil Chamber, Docket No. 2012/13298, Decision No. 2012/13965, 28.11.2012)

When defining “prima facie evidence” above, it was mentioned that it is a document, and when defining a document, it was stated that it must be capable of proving the facts in dispute. What follows from this is that a document that is not capable of proof will not qualify as prima facie evidence, and therefore a document that is not capable of proof cannot be used to benefit from the exception permitting proof by witnesses against a written instrument.

“As a rule, a contract for work is not subject to a mandatory form requirement. Although there is no written form requirement for the conclusion of the contract, if the contractual relationship is denied by the defendant, the rules on proof by written evidence must be observed, taking into account the amount claimed as well. Under Article 200 of HMK No. 6100, legal transactions made for the purpose of creating, waiving, transferring, modifying, renewing, postponing, acknowledging or extinguishing a right must be proven by written instrument if their amount or value at the time they were made exceeds two thousand five hundred Turkish lira. Even if the amount or value of these legal transactions falls below two thousand five hundred Turkish lira for a reason such as payment or release from debt, they cannot be proven without a written instrument. Even in the absence of a written contract, the contractual relationship may also be proven by admission and oath, which are not written evidence but are conclusive evidence revealing the existence of the contract. If the contractual relationship has not been proven by all this evidence either, witnesses may be heard, after a reminder of the provision of Article 200 of the HMK, if the opposing party gives express consent. In the absence of express consent, the contractual relationship cannot be proven by witnesses. Under Article 202 of the HMK, which is the exception to this, witnesses may be heard where proof by written instrument is required if there is prima facie evidence. Prima facie evidence is a document which, although not sufficient to fully prove the legal transaction alleged, makes that legal transaction appear probable and which has been given or sent by the person against whom it is invoked or by that person’s representative. In the present case, the plaintiff initiated enforcement proceedings on the ground that the price of the work had not been paid and, upon objection, filed an action; there is no written contract between the parties, nor has the contractual relationship been proven by other conclusive evidence. Given the amount of the receivable, the contractual relationship cannot be proven by witnesses, and since there is neither the plaintiff’s express consent nor a document in the nature of prima facie evidence, the existence of the contractual relationship cannot be proven on the basis of witness statements. Given the amount in dispute, the plaintiff is required under Article 200 of HMK No. 6100 to prove the claim by written instrument or by oath. However, the plaintiff has not been able to prove the contractual relationship by legal evidence. Photographs alone cannot be accepted as evidence. Furthermore, it is also seen that the plaintiff did not separately and expressly rely on oath evidence in the statement of claim, so reminding the plaintiff of the right to tender the oath will not be in question either. While the action should have been dismissed in its entirety, partially accepting it was erroneous, and the decision had to be reversed.” (Court of Cassation, 15th Civil Chamber, Docket No. 2019/2718, Decision No. 2020/128, 20.1.2020)

Legal nature of faxes:

A fax is an electronic device that can instantly send and receive texts and images as facsimile copies over the telephone line. While the original document remains with the sender, the recipient receives a photocopy of the document sent. A photocopy of the document cannot be used where proof by conclusive evidence is required. However, it may be assessed as prima facie evidence. This is because documents sent by fax will qualify as prima facie evidence within the scope of HMK Art. 202/2. At the same time, it can easily be determined from which sender to which recipient the fax was sent. The fax must be capable of proving the facts in dispute. Faxes whose content cannot be clearly understood cannot be considered capable of proof.

“On the basis of the proceedings conducted and the evidence collected, the court dismissed the action on the grounds that the most important dispute to be resolved between the parties centered on whether the defendant had made a declaration of termination in accordance with the contract; that the term of the contract signed between the parties was 18 days; that, according to the contract, it could be terminated by written notice given up to 1 day before the expiry of the term, with effect from the end of the term; that, as the defendant submitted Türk Telekom records as evidence, claiming to have given notice of termination by fax and email, the court wrote an official letter to the relevant institution asking in whose name the telephone number was registered; that, in the institution’s written reply to the court, the telephone line belonged to...; that, considering that the said non-party person was the plaintiff’s employee on the date the fax was sent, the records submitted by the defendant were accepted as prima facie evidence, the defendant’s witnesses were heard and the statement of the defendant company’s representative was taken by interrogation; that, on an assessment of the file as a whole, it was concluded that the defendant had terminated the contract properly; and that the plaintiff had no fee receivable that could be claimed and no right to claim compensation; the judgment was appealed by the plaintiff’s attorney. The defendant argued that the real estate brokerage agreement between the parties was terminated by fax notice. The defendant is required to prove this claim by a written document. Since the content of the notice cannot be clearly understood from the fax document submitted to the court by the defendant, it was not correct to dismiss the action by relying on the defendant’s fax text, which was not confirmed by the other party, and the court’s decision had to be reversed.” (Court of Cassation, 19th Civil Chamber, Docket No. 2015/5399, Decision No. 2015/15539, 25.11.2015)

“Article 4 of the Turkish Code of Obligations No. 6098 contains the provision "If an offer made to a person who is present without a time limit for acceptance is not accepted immediately, the offeror is released from being bound by the offer. An offer made during direct communication by means capable of providing communication, such as telephone or computer, is deemed to have been made between persons present.", and paragraph 1 of Article 14, entitled the moment of effect of a contract concluded between persons not present, provides: In contracts required to be made in written form, the signatures of those assuming obligations are mandatory; and paragraph 2 provides: Unless otherwise provided by law, a signed letter, a telegram whose originals have been signed by those assuming obligations, and texts that can be sent and stored by fax or similar means of communication, provided that they have been confirmed, or with a secure electronic signature, also substitute for written form. ". Paragraph 14/2 of the Law sets out the elements for the formation of the contract. Article 199 of the Code of Civil Procedure No. 6100 contains the provision "Data such as written or printed texts, written instruments, drawings, plans, sketches, photographs, films, image or sound recordings, as well as data in electronic form and similar information carriers, that are capable of proving the facts in dispute are documents under this Law."

It appears from an examination of the email correspondence submitted as an annex to the statement of claim that a notice was sent to the defendant’s email address on January 10, 2013 that 96 m2 of space had been reserved, and that the defendant was asked, once a decision had been made, to sign the attached contract and send it by fax. In the email sent from the defendant’s email address to the plaintiff on September 21, 2013, a discount on the price was requested; in the plaintiff’s reply email dated September 23, 2013, it was stated that no discount could be given but that payment could be made by check; and in the email dated September 27, 2013 sent by the defendant, it was stated that the defendant had decided not to participate in the fair. At the bottom of the contract there is a record that it was sent by fax, and it states that the fax was sent on January 31, 2013. However, it cannot be understood from the information in the file whether this fax was sent from the defendant’s fax. It is understood from the entire file that telephone conversations first took place between the parties regarding the Trade Fair Participation Agreement in dispute, that the Trade Fair Participation Agreement was then sent over the internet by e-mail (electronic mail) to the defendant’s email address, and that, thereupon, the contract attached to the message was signed and delivered to the plaintiff by fax.

Communication between the parties took place by telephone, email and fax. Since, in the way email communication works, there is no direct communication between the parties, a declaration of intent made by email is a declaration of intent made between persons not present. In communication by email, the offer (declaration of intent) is deemed to have entered the addressee’s sphere of control once the written text has been sent to the addressee’s email address and saved in the addressee’s mailbox. The declaration of acceptance of the offer may also be made by email or by a means of communication equivalent to it in speed, namely by telephone, fax or telex. On the other hand, in a lease agreement concluded through these means of communication, acceptance and the moment at which the contract is concluded must be assessed according to the characteristics of the means of communication used, within the framework of the relevant articles of the Code of Obligations governing the matter. In this context, the court should have examined the email addresses and fax numbers of the plaintiff and defendant companies and the mail and other correspondence sent to them, and ruled according to the result; rendering a decision as written is contrary to procedure and law. The judgment must therefore be reversed.” (Court of Cassation, 6th Civil Chamber, Docket No. 2015/9617, Decision No. 2016/4542, 9.6.2016)

In order to avoid any loss of rights, we believe it is always advisable to obtain legal support from a lawyer.

Att. Ömer Çebi

Trainee Att. Batuhan Özata

This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.