Fundamentals Of Turkısh Private Law Büyük Boy — Erhan Adal

FUNDAMENTALS OF TURKISH PRIVATE LAW Prof Dr Erhan ADAL PREFACE V ABBREVIATIONS XIII ABOUT THE AUTHOR XVII BOOK ONE THE CIVIL LAW 1 THE CONCEPT OF LAW 1 1 The positive law or applied law 2 2 The enacted law 2 3 Natural law or ideal law 3 4 Objective law subjective law 4 5 National law International law 4 6 Substantive law and procedural laws 4 2 DIFFERENT BRANCHES OF LAW 4 I IN GENERAL 4 II BRANCHES of PUBLIC LAW 5 1 Constitutional Law 5 2 The Administrative Law 6 3 The Criminal Law 6 4 The Judicial Law 6 a Constitutional Jurisdiction 6 b Administrative Jurisdiction 6 c Military Jurisdiction 7 d Judicial Jurisdiction 7 5 Public International Law 8 6 Fiscal Law 9 III BRANCHES OF PRIVATE LAW 9 1 The Civil Law 9 2 The Commercial Law 10 A General mode of transportation 11 B Water transportation solely 12 3 Private International Law Conflict of Laws 14 IV MIXED SUI GENERIS LAW BRANCHES 14 3 SOURCES OF TURKISH LAW 18 I IN GENERAL 18 1 Static codifications 19 2 Dynamic codifications 19 aa Codifications aiming at alteration of regime 19 bb Codifications aiming at alteration of Social and Economic Structure 20 cc Codifications aiming at International Integration 20 3 Methods used in codification 20 a Casuistic method 20 b Abstract method 20 c Abstract casuistic method 21 II LEGISLATION 21 1 Generally 21 2 Legislation in the Turkish Legal system 21 3 Main features of Legislation 21 4 Hierarchy of written laws or enacted law 22 a the Constitution 22 b Codes Statutes Acts of Parliament 22 c Statutory Governmental Decrees 23 d International Treaties 23 e Regulations 24 f Directives By laws 24 g Joint decision of United Chambers of the High Court of Appeals 24 III CUSTOMARY LAW 24 1 Antiquity 25 2 Continuity 25 3 Popular belief in the quality of a custom opinio necessitatis 25 4 State sanction 25 5 Agreement with Statutory Law 26 4 THE CONCEPT OF SYSTEM OF LAW 26 I INTRODUCTION 26 II THE CIVIL LAW SYSTEM 27 1 Historical Development 27 A Roman Law 27 B French Law 29 C German Law 32 III THE COMMON LAW SYSTEM 37 1 Sources of law 37 A Common Law 38 B Case Law 39 C Statute Law 45 D Equity 47 2 Functions of Equity 48 3 Contributions of Equity 48 5 THE TURKISH LEGAL SYSTEM 52 I INTRODUCTION 52 II THE RECEPTION OF WESTERN LAW IN TURKEY 54 1 Reception of Law 54 2 Modern reception 55 3 Sources adopted 55 4 General Problems of Reception 56 6 PRELIMINARY PROVISIONS AND SCOPE OF THE CIVIL CODE 59 I INTRODUCTION 59 II ARTICLE 1 OF THE CIVIL CODE 60 1 Distinctive features of the Code 61 2 Meaning and scope of Article 1 65 3 Sources of law set forth in article 1 66 III TYPICAL JUDGEMENTS ON ARTICLE 4 73 1 On the guardianship of persons of full age 74 2 Grounds of Divorce 75 3 Effect of divorce or judicial separation on the chidren of the marriage 76 4 Forfeiture of parental power 76 5 Responsibility of the head of the family 77 6 Compensation for breach of promise of marriage article 119 CC 77 7 Determination of damage 78 8 Reduction of penalty taken by the damaged party 78 IV TYPICAL JUDGMENTS ON ARTICLE 2 AND 3 GOOD FAITH 78 A In Civil Law areas 81 aa Family law 81 bb Law of Inheritance 81 cc Law of property 82 7 LAW OF PERSONS 85 I IN GENERAL 85 II PERSONS AS SUBJECTS OF RIGHTS 86 III CAPACITY TO ACT 87 1 Definition 87 2 Degree of capacity 87 a Full capacity 87 i minority 88 ii mental sickness 88 iii mental weakness 88 b Full incapacity 89 c Limited capacity 90 IV RELATIONSHIP KINDRED 91 1 Concept 91 2 Kinds of relationship 91 a Kindred by blood 91 aa Kindred by parentage 91 bb Kindred by collateral 92 b Kindred by marriage 92 3 Relationship by law legal relationship adoption foster child 93 8 FAMILY LAW 95 I CONCEPT 95 II ENGAGE