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Assessment of the Legal Nature of Money Sent Online Without Explanation in Light of Court of Cassation (Yargıtay) Decisions
Assessment of the Legal Nature of Money Sent Online Without Explanation in Light of Court of Cassation (Yargıtay) Decisions
Statutory Framework and the Court of Cassation’s Perspective
Money sent through internet banking is essentially a money transfer (havale). The money transfer is regulated in Articles 555 et seq. of the Turkish Code of Obligations No. 6098. An examination of the relevant provisions shows that a money transfer is a means of payment. Indeed, Article 556 of the Turkish Code of Obligations, titled “Relationship between the Transferor and the Transferee”, provides: “If the transfer is made in order to perform a debt owed by the transferor to the transferee, that debt is extinguished only when the paying party performs the debt.” The law presumes that a money transfer is made for the purpose of paying a debt.
The case law of the Court of Cassation is indeed to the same effect. In its judgment of the 3rd Civil Chamber, Docket No. 2022/8402 E., Decision No. 2023/1199 K., the Court of Cassation found that a money transfer is essentially a means of payment, stating: “The money transfer regulated in Articles 555 et seq. of Law No. 6098 is, in terms of its legal nature, a means of payment. In other words, there is a statutory presumption that a money transfer is made for the purpose of paying an existing debt. The person making the transfer who asserts the contrary of this statutory presumption (that the transfer was made for a purpose other than the payment of a debt) bears the burden of proving that assertion.”
In the operative part of the said Court of Cassation decision, the following conclusion was reached: “…although the plaintiff alleged that EUR 25,000.00 was sent to the defendant’s account as a loan, the transfer receipts contain no statement that the money was sent as a loan; under the legal rules set out above, a money transfer is a means of paying a debt and there is a statutory presumption that it is made for the purpose of paying an existing debt; although the defendant accepts that the monies in dispute were sent to the defendant, the defendant stated that they were sent not as a loan but at the plaintiff’s request, in order to contribute to the plaintiff’s commercial business and to refund the monies previously sent by the defendant to the plaintiff; and the plaintiff was unable to prove by legal evidence that the money was sent as a loan…”
Likewise, in the judgment of the 3rd Civil Chamber, Docket No. 2012/10411 E., Decision No. 2012/16491 K., the fact that a money transfer is a means of payment is explained in detail. The point that a money transfer is a means of payment, and that the party asserting the contrary must prove it, is expressed in the decision as follows: “The money transfer regulated in Article 457 and the following articles of the Code of Obligations is, in terms of its legal nature (just like the cheque, which is one of its special forms), a means of payment. In other words, there is a statutory presumption that a money transfer is made for the purpose of paying an existing debt. The transferor (muhil) who asserts the opposite of this statutory presumption (that the transfer was made for a purpose other than the payment of a debt) bears the burden of proving that assertion. (For extensive information on the concept of the money transfer, see: Prof. Dr. Arif B. Kocaman, Türk Borçlar Hukukunda Havale, Banka ve Ticaret Hukuku Araştırma Enstitüsü Yayını, Ankara 2001; as an example of the practice of the Court of Cassation on this subject: decision of the 11th Civil Chamber dated 28.9.1992, No. 1991/1956-1992/9316). In the concrete case, in the face of the said statutory presumption, the plaintiff, who is in the position of the transferor, bears the burden of proving that the money transfer in dispute made to the defendants was aimed at a purpose other than the payment of a debt. In other words, even on an assessment based on the concept of the money transfer, the burden of proof in the concrete case lies with the plaintiff.”
In the judgment of the 13th Civil Chamber of the Court of Cassation, Docket No. 2016/13492 E., Decision No. 2019/1206 K., this issue was decided as follows: “In the concrete case, the document relied upon by the plaintiff is not sufficient, on its own, to prove that a loan was granted. For, as a rule, a money transfer is a means of payment. In other words, there is a statutory presumption that a money transfer is made for the purpose of paying an existing debt. The person who asserts the contrary of this statutory presumption (that the transfer was made for a purpose other than the payment of a debt) bears the burden of proving that assertion. Accordingly, it is necessary for the plaintiff to state in the transfer document that the money was sent as a loan. Otherwise, the transfer sent must be accepted, as a presumption, as having been sent for the purpose of paying a debt. The plaintiff must prove that he or she is a creditor by reason of the money transfer, which is a debt payment document. There is no statement in the payment documents on which the plaintiff relies as evidence in the case that the money was sent as a “loan”. The burden of proof lies with the plaintiff; rendering a judgment partially upholding the action in written form, without addressing this point, by erring as to the burden of proof and thereby reversing the burden of proof, is contrary to procedure and the law and necessitates the quashing of the decision.”
When the decisions are examined, it is clearly seen that a money transfer is accepted as a means of payment. In accordance with the general principle of law that “the person who asserts bears the burden of proof”, a person who claims that money sent by money transfer was not a debt payment is obliged to prove that assertion with the evidence set out in the Code of Civil Procedure (HMK). Otherwise, money sent in the form of a money transfer will be deemed a debt payment.
Conclusion
As can be seen, considering Articles 555 et seq. of the Turkish Code of Obligations No. 6098 and the precedent case law of the Court of Cassation, it is clear that a money transfer is regarded as a means of paying a debt. Since sending money via internet banking is also a money transfer, it is essentially treated as a means of paying a debt. This point has also been emphasised in the decisions rendered by the different chambers of the Court of Cassation to which we have referred above. Given that a money transfer is accepted as a means of payment, it is clear that the person who claims that money sent through internet banking was sent as a loan bears the burden of proving that claim. If the claim cannot be proved, the money transfer will be deemed to have been made for the purpose of paying a debt. Therefore, in order to avoid facing difficulties of proof at the litigation stage, it is of the utmost importance, to avoid any loss of rights, that the nature of monies sent over the internet other than for debt payment be stated in the description field, as in “sent as a loan”, “is a debt” or “sent as a gift”.
