Under Art. 222/1 of the Code of Civil Procedure (HMK), in commercial cases the court may order the production of the parties’ commercial books of its own motion or at the request of one of the parties; adverse consequences may arise for a party that does not submit its books within the time given.
Under HMK Art. 222/2 and 3, for the books to serve as evidence in favor of their owner, both parties must be merchants and the books must be kept properly and certified; if the books contradict each other, the dispute is resolved by other evidence.
Under HMK Art. 222/4, books whose certifications are missing or whose entries do not corroborate each other constitute evidence against their owner and, under the principle of the indivisibility of entries, are assessed as a whole.
Under HMK Art. 222/5, a non-merchant party may also rely exclusively on the merchant’s books; if the books are not produced despite a warning stating the consequences, the party requesting production is deemed to have proven its claim.
Commercial books, the core record-keeping mechanism of commercial life, are not merely financial data sets in civil proceedings; they are one of the strongest forms of "conclusive evidence" that determine the outcome of a dispute. The Code of Civil Procedure (HMK), in its Article 222, governs the conditions under which these records go beyond being "silent witnesses" and turn into a legal instrument that determines the result of the case. With this article, the legislator encourages the honest merchant to keep its records properly, while imposing heavy risks in terms of proof on the party that hides its books from the court or keeps irregular records. On the one hand, HMK Art. 222 establishes commercial trust by defining commercial books as "conclusive evidence"; on the other, it contains mechanisms that allow the burden of proof to shift. This article serves as a critical "balancing element" for securing justice not only in disputes between merchants but also in actions brought by non-merchants against a merchant.
What is a commercial book? Why is it important?
Commercial books serve as the financial memory of a business and enable the merchant to track, in chronological order, all changes in its assets, its debt and receivable relationships and the results of its operations. These documents are not merely technical record-keeping tools; they are also fundamental elements that, by transparently reflecting the economic position of the business, provide the merchant with data for strategic decision-making and establish a relationship of trust with third parties and the state.
The bookkeeping obligation introduced by the Turkish Commercial Code (TTK) requires that records be kept in accordance with the rule of good faith, completely, on time and with an auditable system, and that the opening and closing certifications be carried out properly. While the meticulous fulfillment of this obligation is a precondition for the books to be accepted as "evidence in favor" in commercial disputes, records kept irregularly, incompletely or without certification leave the merchant defenseless in the process of proof and cause the books to constitute evidence against it. Commercial books therefore play a central role both in tracking the merchant’s commercial success and as a safeguard of its legal security.
HMK ARTICLE 222 - (1) In commercial cases, the court may order the production of the parties’ commercial books of its own motion or at the request of one of the parties.
(2) For commercial books to be accepted as evidence in commercial cases, they must have been kept completely and properly in accordance with the law, their opening and closing certifications must have been obtained, and the book entries must corroborate each other.
(3) For entries in commercial books kept in accordance with the conditions set out in the second paragraph to be accepted as evidence in favor of their owner and its successors, the entries in the other party’s commercial books kept in accordance with the same conditions must not contradict them, or the other party must not have produced its commercial books, or the contrary of the book entries must not have been proven by written instruments or other conclusive evidence. (Sentence added: 22/7/2020-7251/23 Art.) If the other party’s commercial books kept in accordance with the conditions in the second paragraph contain no entry at all on the relevant matter, the commercial books cannot be used as evidence in favor of their owner. The entries in favor of and against the owner in books kept in accordance with these conditions cannot be separated from each other.24
(4) Commercial book entries that lack opening or closing certifications and whose records do not corroborate each other constitute evidence against their owner.
(5) Even if one of the parties is not a merchant, it may state that it will accept the entries in the commercial books of the other party, who is a merchant; however, if the opposing party avoids producing its books, the party requesting production is deemed to have proven its claim.
• Production of Commercial Books and Ex Officio Intervention by the Court (HMK Art. 222/1)
The court may order the production of commercial books at the request of one of the parties. Under HMK Art. 222/1, submitting commercial books to the court is not solely at the parties’ initiative. Where the court considers it necessary to resolve the dispute, it may order the production of the parties’ commercial books of its own motion (ex officio). At this stage, the books have the character of documents (records) within the scope of HMK Art. 220 and form the cornerstone of the proceedings.
"Where one of the parties has produced its commercial books to the court but the opposing party avoids producing its commercial books, the court may order production of the books ex officio under TTK Art. 85 and HMK Art. 222/1. It has been accepted that the party avoiding production is to be given a time limit pursuant to Article 220 of the HMK and that, if no excuse is shown, the other party’s statement may be accepted." Court of Cassation (Yargıtay), 6th Civil Chamber (Docket No. 2021/421, Decision No. 2021/2017)
"In cases heard by a court acting as a commercial court, pursuant to Article 222 of the HMK the court will, of its own motion, take into account the evidentiary character of commercial books even in the absence of a request by a party. Pursuant to Article 27 of the Code of Civil Procedure, the right to be heard, on which the European Court of Human Rights also places great emphasis, also includes within its scope the assessment of the plaintiff’s right to explain and prove together with those connected with its own rights, and it is a carefully protected right and principle of procedure." Constitutional Court, Individual Application, App. No. 2016/588, 19/9/2018
"On the other hand, pursuant to Article 222 of the HMK, in commercial cases the court may order the production of the parties’ commercial books of its own motion or at the request of one of the parties. Considering that the case is a commercial case and the stage the proceedings have reached, it has become necessary to examine the defendant’s commercial books and documents as well in order to resolve the dispute." Trabzon Regional Court of Appeal, 4th Civil Chamber, Docket No. 2022/25, Decision No. 2022/204, 14.02.2022
If a party avoids submitting the books within the time limit set by the court or has not kept its books properly, an oath may even be tendered to it. The merchant’s remaining passive during this process may lead the court to accept the opposing party’s claims as true.
• Conditions for Books to Be Conclusive Evidence in Favor of Their Owner (HMK Art. 222/2-3)
For the records a merchant keeps itself to constitute evidence in its own favor, the conditions in HMK Art. 222/2 and 3 must be met cumulatively (together):
• Both parties to the dispute must be merchants.
• The dispute must relate to the commercial enterprises of both parties.
• The books must be kept in accordance with the law, and the opening and closing certifications must be complete.
The explanations given here should not be confused with paragraph (5) of HMK Art. 222. That paragraph states: “Even if one of the parties is not a merchant, it may state that it will accept the entries in the commercial books of the other party, who is a merchant; however, if the opposing party avoids producing its books, the party requesting production is deemed to have proven its claim.” However, this provision concerns situations in which commercial books are used as evidence against their owner. In other words, the conditions we listed above are the conditions required where the commercial books are examined against each other. Since the non-merchant party cannot have properly kept commercial books either, it will in no way be able to meet the condition of the books being evidence in favor of their owner. We will also return to this point later when discussing that paragraph.
For the records a merchant keeps itself to be accepted by the court as "favorable evidence" (a means of proof in its own favor), the entries in the other party’s commercial books kept in accordance with the same conditions must not contradict them, or the other party must not have produced its commercial books, or the contrary of the book entries must not have been proven by written instruments or other conclusive evidence.
So what happens if the merchant’s books are properly kept but the opposing party does not submit its books?
The Opposing Party Not Producing Its Books: If a party relies on its properly kept books and the opposing party, without a just cause, avoids submitting its own books, the claims of the party submitting its books are deemed proven. In practice, this situation also leads to differing results.
No Entry in the Opposing Party’s Books: If the opposing party’s properly kept books contain no entry at all concerning the transaction in dispute, this prevents the books from constituting evidence in favor of their owner.
Entries Contradicting Each Other: If the properly kept books of both parties say the opposite of each other, the books refute each other and the dispute is resolved by other evidence.
"In commercial cases... it is possible to prove the contractual relationship or the amount of the receivable by commercial books. Commercial books are among the forms of conclusive evidence. Since the law provides that, where they have evidentiary character, the contrary must be proven by written or conclusive evidence, it is clearly understood that the law regulates commercial books as conclusive evidence." Assembly of Civil Chambers of the Court of Cassation (HGK), Docket No. 2023/793, Decision No. 2024/149
"When it is accepted that, under the rule of immediate entry into force, the production of commercial books must be assessed under Article 222, in the present case the court ordered ex officio, pursuant to Article 222/1 of the HMK, that the defendant submit its commercial books, and the defendant did not submit its books despite the warning. In this situation, given that the plaintiff’s commercial books were kept properly and corroborated each other, the court should have accepted the action by holding that they had evidentiary value in favor of the plaintiff and against the defendant, which had not produced its books despite the warning." COURT OF CASSATION, 11th CIVIL CHAMBER, Docket No. 2020/3246, Decision No. 2022/1017, 11.2.2022
"Where the defendant did not produce books kept in accordance with the law, it was found that the plaintiff’s examined book entries had the character of conclusive evidence and that there was no procedural irregularity in the decision to accept the action." Sakarya Regional Court of Appeal, 7th Civil Chamber, Docket No. 2021/52, Decision No. 2021/1682
"For commercial books to be accepted as evidence in commercial cases, they are required to comply with the provision in paragraph 2 of Article 222 of the Code of Civil Procedure No. 6100, namely “being kept completely and properly in accordance with the law, having their opening and closing certifications obtained, and the book entries corroborating each other.”" Konya Regional Court of Appeal, 6th Civil Chamber, Docket No. 2023/1375, Decision No. 2024/537, 04.03.2024
"For commercial books to constitute evidence in favor of their owner, all the conditions in HMK Art. 222 must be met fully and cumulatively. Unless all the conditions specified in the article are met, the books cannot form the basis of a judgment. Even if the parties have kept their books in accordance with the law, if the two parties’ entries contradict each other, the commercial books will not acquire evidentiary character." Court of Cassation, 11th Civil Chamber, Docket No. 2016/4864, Decision No. 2017/3395, 05.06.2017
If there is a discrepancy between the parties’ books, judgment cannot be rendered by looking at only one party’s books. If the book entries conflict, facts such as the delivery of goods must be proven by other conclusive evidence such as a "delivery receipt" or a "delivery note".
"For commercial books to be accepted as evidence in favor of their owner, the entries in the opposing party’s commercial books must not contradict them. Where there is a discrepancy between the parties’ commercial books, the plaintiff must prove by conclusive evidence that the goods or services in the invoice were delivered. In the event of a discrepancy between the books, failure to prove delivery requires the dismissal of the action." Denizli Regional Court of Appeal, 4th Civil Chamber, Docket No. 2025/1308, Decision No. 2025/1544
• Irregular Books as Evidence Against Their Owner (HMK Art. 222/4)
Where the certifications of the books are missing or the entries do not corroborate each other, these books cannot be evidence in favor of their owner. However, if these irregular books contain an entry in favor of the opposing party (against their owner), such entries are deemed valid evidence (an admission). This in turn stems from the principle of the "indivisibility of entries". The opposing party cannot accept the parts of the book that are in its favor while
rejecting those against it; the book is assessed as a whole.
"Commercial book entries that lack opening or closing certifications and whose records do not corroborate each other constitute evidence against their owner... In view of the absence of closing certifications on the plaintiff’s own books, it must be accepted that the plaintiff failed to discharge the burden of proof." Court of Cassation, HGK, Docket No. 2013/2292, Decision No. 2015/1341
"As explained above, commercial book entries that lack opening or closing certifications and whose records do not corroborate each other constitute evidence against their owner. On the other hand, the plaintiff did not rely on the opposing party’s commercial books and records as evidence either. Moreover, the annotated summons for the defendant to produce its commercial books and records was duly served by the court, but the defendant did not produce its commercial books and documents. In this situation, since the plaintiff did not rely on the defendant’s commercial books and records and, in view of the absence of closing certifications on its own commercial books and records, failed to discharge the burden of proof, the decision to dismiss the action, which could not be proven, is in accordance with procedure and the law, and the local court’s decision must therefore be upheld." Court of Cassation, Assembly of Civil Chambers, Docket No. 2013/2292, Decision No. 2015/1341, 13.05.2015
“If commercial books are not consistent, they will constitute evidence against their owner whether or not they are kept regularly. However, even if one of the books is regular, if both books contain entries against their owner, then, as regards being deemed evidence against, it is primarily the books of the party bearing the burden of proving its claim that should be deemed evidence against it. That is to say, the party bearing the burden of proof should not benefit from the entries in the opposing party’s commercial books that are against that party in a way that would eliminate the adverse entries in its own book. As a consequence of this, it must be accepted that the party bearing the burden of proof cannot benefit from the non-matching part of the adverse entries. Because the burden of proof concerns the matters in dispute, and since there can be no burden of proof for a matter that the opposing party has not asserted, reaching this conclusion is also a basic consequence of the rules of procedure.” Court of Cassation, 6th Civil Chamber, Docket No. 2021/3826, Decision No. 2022/1731
4. Reliance on Books by Non-Merchants and Avoidance of Production (HMK Art. 222/5)
Paragraph 5 of HMK Art. 222 is a very important balancing mechanism in the law of evidence. Under this provision, a party may cite the opposing party’s commercial books as evidence even if it has no commercial books of its own (that is, even if it is not a merchant).
We touched on this topic earlier under heading 2. On the basis of the provision of HMK Art. 222/5, the non-merchant party may rely on the commercial books of the merchant party. With this paragraph, we have seen that HMK Article 222 does not concern merchants alone.
Conversely, what are the consequences of the merchant not producing its commercial books?
This is of vital importance, particularly in disputes between consumers or non-merchant individuals and a merchant. When the non-merchant party relies on the opposing party’s books and the merchant party does not produce those books, the court sends the merchant a warning.
The court’s "bring your books" order must contain the warning (annotation) "if you do not bring them, you will be deemed to have accepted the other party’s claims". Without this warning, the sanction cannot be applied.
When the books are produced, they must be examined by a qualified court-appointed expert within the framework of the TTK and the Tax Procedure Law, and in particular it must be clarified whether the "closing certifications" were made on time.
If the merchant party does not produce the books despite the warning, the non-merchant party is then deemed to have proven its claims. Even if the merchant has kept its commercial books properly and the books contain matters in its favor, adverse consequences may arise for it if it does not produce them despite the warning.
By reading sample decisions of the Court of Cassation, we can understand how the non-merchant party should rely on the books and how the matter stands in practice.
"The attorney of the defendant company, who took part in the proceedings, stated that it did not consent to the examination of its commercial books and did not produce the commercial books to the court. In this situation, whereas the court should have, taking Article 222/5 of the HMK into account, warned the defendant companies ‘to submit their commercial books, failing which the plaintiff’s claims would be deemed well-founded’, had a further expert examination carried out on the books if the commercial books were submitted and decided according to its outcome, and, if the commercial books were not produced, accepted the action in full by holding that invoice No. 71301 dated 30.06.2011 was recorded in the defendants’ commercial books, it was not correct to render judgment as written on the basis of an incomplete examination." Court of Cassation, 3rd Civil Chamber, Docket No. 2017/2311, Decision No. 2017/15085, 01.11.2017
"Article 222/5 of HMK No. 6100 contains the provision “Even if one of the parties is not a merchant, it may state that it will accept the entries in the commercial books of the other party, who is a merchant; however, if the opposing party avoids producing its books, the party requesting production is deemed to have proven its claim”. For the provision in Article 222/5 of the HMK to be applied to the present case, the party relying on the opposing party’s commercial books must rely exclusively on the opposing party’s commercial book entries, without relying on any other evidence." Court of Cassation, 3rd Civil Chamber, Docket No. 2020/4802, Decision No. 2020/6865, 23.11.2020
"Pursuant to Article 222/5 of HMK No. 6100, when an action is brought, even if one of the parties to the action is not a merchant, it may state that it will accept the entries in the commercial books of the other party, who is a merchant; however, if the opposing party avoids producing its books, the party requesting production is deemed to have proven its claim. This provision applies where one of the parties confines its evidence to the commercial books of the opposing party, who is a merchant. If the party has not confined its evidence to the opposing party’s commercial books and has also relied on other evidence in addition to the opposing party’s commercial books, it is not HMK Art. 222/5 but Article 220 of the HMK that applies." Court of Cassation, 19th Civil Chamber, Docket No. 2012/9592, Decision No. 2012/15940, 05.11.2012
"As also stated in the judgments of the 15th Civil Chamber of the Court of Cassation with Docket No. 2014/1505, Decision No. 2015/679 and Docket No. 2016/3164, Decision No. 2017/938, and of the 23rd Civil Chamber of the Court of Cassation with Docket No. 2015/6424, Decision No. 2016/3931, under Article 222/5 of HMK No. 6100, even if one of the parties is not a merchant, it may state that it will accept the entries in the commercial books of the other party, who is a merchant; however, if the opposing party avoids producing its books, the party requesting production is deemed to have proven its claim. The article clearly states that, in the event of avoidance of production, the plaintiff will be deemed to have proven its claim. In the case under review as well, the plaintiff clearly stated, both in the statement of claim and in its reply to the statement of defense, that it relied on Article 222/5 of the HMK and that the entries in the opposing party’s commercial books would be accepted." Istanbul Regional Court of Appeal, 15th Civil Chamber, Docket No. 2020/605, Decision No. 2021/122, 20.01.2021
Article 222 of the HMK is the "golden rule" of commercial cases. For a merchant, the greatest risk is keeping its books irregularly or failing to comply with the court’s order to produce them. The common emphasis of the decisions of the Court of Cassation and the Regional Courts of Appeal is that, for books to be evidence in favor of their owner, a flawless system of record-keeping and certification is required, whereas for them to be evidence against their owner, the mere existence of that entry is sufficient. Success in commercial cases depends not only on being in the right, but on crowning that rightfulness with commercial books that have been kept properly and submitted to the court in full.
A Court of Cassation decision that serves as a lesson and covers all these topics:
“a-) Production of commercial books:
Pursuant to Article 222/1 of the HMK, in commercial cases the court may order the production of the parties’ commercial books of its own motion or at the request of one of the parties. With this article, the legislator has adopted the principle that, in actions arising from transactions of merchants relating to their commercial enterprises, the judge may examine the commercial books ex officio even if the commercial books have not been expressly relied upon among the parties’ evidence. The same principle has been confirmed, in parallel with the provisions of Article 222 of the HMK, by Article 85 of the TTK, which states: "In disputes relating to property law, in particular those relating to inheritance, community of property and the liquidation of companies, the court may order the delivery of the commercial books and the examination of their entire contents."
Article 83/2 of the TTK refers to the HMK regarding the production of commercial books but does not regulate the sanction for avoiding production of the books. Likewise, Article 222/3 of the HMK regulates the procedure for the parties’ production of their commercial books to the court but does not set out the sanction for non-production. For this reason, it is accepted in legal doctrine that Articles 219 and 220 of the HMK on the obligation to produce documents apply in this situation. (Hakan Pekcanıtez, Medeni Usul Hukuku, 15th ed., Vol. 2, p. 1826)
On the other hand, since the legislator has expressly provided that commercial books may be examined by the court ex officio pursuant to Article 222/1 of the HMK and Article 85/2 of the TTK, it cannot be thought that the legislator did not provide for any sanction concerning the party that does not produce its books, because if the parties do not produce the books despite an order for their production ex officio, it will not be possible to carry out the court’s interim decision. For this reason, the principle that the legislator does not engage in futility must be borne in mind.
b-) Commercial books as evidence:
In a commercial dispute, merchants may rely as evidence both on their own books and on the opposing party’s commercial books. For commercial books to be accepted as evidence in commercial cases, they must have been kept in accordance with the law, their opening and closing certifications must have been made and the book entries must corroborate each other.
aa-) Commercial books as evidence in favor of their owner:
For commercial books to be evidence in commercial cases, the owner of the books must have had the opening and closing certifications of the books made on time, the books must have been kept properly, the book entries must corroborate each other, and the entries must not contradict the book entries of the other party kept under the same conditions, in other words kept properly, or the latter must contain no entry at all. Where, despite the opposing party having kept its books properly, the commercial books of both parties contain entries contradicting each other, the party bearing the burden of proof will have to prove its claim by other evidence.
Where one of the parties has produced its commercial books to the court but the opposing party avoids producing its commercial books, since the court may order production of the books ex officio under TTK Art. 85 and HMK Art. 222/1, it has been accepted that, pursuant to Article 220 of the HMK, the party avoiding production is to be asked to submit its evidence and documents concerning its non-production of the commercial books and, if it cannot find the books, is to be tendered an oath that it does not know where they are, and that, if the party ordered to produce the books does not produce them within the time given to it and does not show an acceptable excuse for not producing them, or denies that the document is in its possession and does not accept or take the oath tendered, the court may, depending on the circumstances, decide by accepting the other party’s statement as to the content of the document.
bb-) Commercial books as evidence against their owner:
Pursuant to Article 222/4 of the TTK, commercial book entries that lack opening and closing certifications and whose records do not corroborate each other constitute evidence against their owner. The party using the commercial books as evidence against their owner may assert and prove the contrary of the entries in the books. However, the opposing party must prove the contrary of the entries in its own commercial books that constitute evidence against it only by conclusive evidence. Likewise, where all of a party’s commercial books are kept in accordance with the law and procedure but, as regards the entries they contain, they corroborate the opposing party’s claims, these entries also constitute evidence against their owner. For example, in a sales contract, the fact that the invoice for the sale is recorded in the buyer’s books constitutes evidence against the owner of the books with respect to the claim that the goods subject to the invoice and the invoice were delivered to the buyer. The owner of the books must prove the contrary by other conclusive evidence.
c-) Reliance on commercial books as exclusive evidence:
While the first four paragraphs of Article 222 of the HMK regulate the conditions for the production of commercial books and for their serving as evidence in disputes between merchants, paragraph 5 of Article 222 regulates the obligation to produce the books where, even if one of the parties is not a merchant, the books of the merchant party are relied upon exclusively as evidence, and provides that, in the event of avoidance of production, the party requesting production will be deemed to have proven its claim.
For this article to apply, at the stage of specifying evidence, the party, whether or not it has merchant status, must rely exclusively on the books of the opposing merchant party by waiving other evidence. If the party adducing evidence has relied on other evidence besides the commercial books, it cannot benefit from Article 222/5 of the HMK. In order to benefit from this article, it must be expressly declared that the entry in the commercial books of the opposing merchant party will be accepted. During the trial stage, pursuant to Article 196 of the HMK, it is not possible, without the express consent of the opposing party, to waive other evidence and rely exclusively on the opposing party’s commercial books as evidence. However, with the express consent of the opposing party, the party wishing to prove its claim may rely exclusively on the opposing party’s commercial books as evidence.
Arguing that, where production of commercial books is avoided, the party wishing to prove its claim is obliged to rely as evidence exclusively on the opposing party’s commercial books only under Article 222/5 of the HMK would, besides creating difficulty of proof in commercial disputes, render ineffective the provisions of Article 219 of the HMK on the obligation to produce a document in one’s possession that is in favor of the opposing party and of Article 220 of the HMK regulating the consequences attached to non-production of a document. It would leave the application of statutory provisions to the will of the parties. Moreover, this would also constitute a breach of the "obligation to act honestly and tell the truth", which is regulated in Article 29 of the HMK and is one of the principles governing proceedings. It would make it possible to avoid submitting entries in favor of the opposing party.
Whereas Article 220 of the HMK grants the judge discretion, by tendering an oath on whether avoidance of production of the document is based on just causes, to accept the other party’s claim as to the content of the document depending on the outcome of the oath, and provides that the claim and the defense may be proven by other evidence, under Article 222/5 of the HMK the party wishing to prove its claim must, at the stage of the exchange of pleadings and the specification of evidence, have relied exclusively (solely) on the other party’s commercial books as evidence and must not have relied on any other evidence. A party that says it has other evidence cannot benefit from Article 222/5 of the HMK.
In this context, Articles 220 and 222 of the HMK are different provisions, and since Article 220 of the HMK also allows reliance on other evidence, the judge has discretion by assessing the other evidence together with the fact that the books were not produced. By contrast, where the opposing party’s commercial books are relied upon exclusively as evidence, if the books are not produced, the party that relied on the books as evidence will be deemed to have conclusively proven its claim." Court of Cassation, 6th Civil Chamber, Docket No. 2021/2158, Decision No. 2022/2285, 20.04.2022
Att. Ömer Çebi
Ömer Korak
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.
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