Trappings are considered personal property. The ornaments worn on the woman during the marriage are considered to be donated to the woman no matter by whom they were worn. It is determined by looking at the customs and customs of this region that the trappings worn by a man during marriage belong to.
T.C. Court of Cassation 2. Department of Law E. 2004/5985 K. 2004/6650 T. in his decision dated 24.5.2004; according to life experiments, the usual trappings are on the woman or stored in the house, kept. The abandonment of the trappings to the man’s dignity has been considered as a situation contrary to the usual flow of life. It has been accepted from nevi that the trappings in question can be easily stored, transported and taken away, and it has always been possible for the woman who designed to leave the house to take them away in advance to hide them.
The case for requesting the return of trappings can be filed together with the divorce case, or it can also be filed as a separate case after the divorce has been filed. The following are the generally accepted opinions on who bears the burden of proof in the case of the return of trappings;
6 Of the Turkish Civil Code.each of the parties is obliged to prove the existence of the facts on which it bases its right, unless there is a contrary provision in the law in accordance with the provision of the article. As is accepted both in the doctrine and in the case law of the Supreme Court, the burden of proof falls on anyone who claims or defends a situation that is contrary to the usual course of life. On the other hand, a person who wants to extract rights for his own benefit from an event that he claims must prove the event that he claims.
According to the decisions of the Supreme Court, as a rule, it is accepted that the woman who leaves the house takes her trappings with her, the woman who leaves the house is obliged to prove that the trappings stay at home.However, in some cases this presumption may also be considered otherwise. In particular, it should be accepted that the woman who did not leave the house by designing a divorce and separated from her husband by an event that developed suddenly did not take her jewelry with her.
The Supreme Court’s Decision on the issue is as follows;
GENERAL ASSEMBLY OF THE SUPREME COURT OF LAW, BASIS: 2010/6-46, DECISION: 2010/75
The plaintiff’s deputy stated in the petition for the lawsuit that the parties got married on 04.07.2006, the jewelry worn during the wedding was stored in the bank vault, his client was abandoned in Izmir, where he went on a trip, his client who had taken refuge in his family could not get his jewelry, if not exactly, 5.000.00 YTL to reserve the rights to the surplus. he asked for the collection of 12.175.00 YTL.ye he must have taken it off. The defendant’s attorney defended the rejection of the case by stating that the plaintiff gave the trappings subject to the lawsuit to his mother on his way to his honeymoon.
6 Of the Turkish Civil Code.each of the parties is obliged to prove the existence of the facts on which it bases its right, unless there is a contrary provision in the law in accordance with the provision of the article. As is accepted both in the doctrine and in the case law of the Supreme Court, the burden of proof falls on anyone who claims or defends a situation that is contrary to the usual course of life. On the other hand, a person who wants to extract rights for his own benefit from an event that he claims must prove the event that he claims.
The plaintiff woman claimed that the trappings subject to the lawsuit remained with the defendant, while the defendant husband argued that they were taken away by her. According to life experiments, the usual thing is that this kind of item is on the woman or stored at home, kept. In other words, it is incompatible with the usual situation that they are abandoned to the dignity and protection of the defendant.
On the other hand, jewelry is one of the kinds of items that can be easily stored, transported, and taken away. Therefore, it is possible for the woman who is planning to leave the house to take them away in advance, as it is always possible to hide them, to take them with her when she leaves the house. As a result, it is necessary to accept that the trappings of normal conditions are on the woman.
The plaintiff is under the burden of proving the existence of the trappings subject to the lawsuit, that they were forcibly taken from him when he left the house and prevented from being taken away, that he stayed at home.
In a concrete case, the plaintiff requests the return of the trappings of the subject of the lawsuit that were worn and gifted to him due to marriage. However, in the case, the plaintiff could not prove with the statement of the witnesses that the trappings subject to the case were prevented from being taken away and forcibly taken away from her as of the date the woman left the house, and that she had not had the opportunity to take them before. As described above, the plaintiff has the obligation to prove it. The court, on the other hand, changed its obligation to prove and offered an oath to the plaintiff in the session dated 21.05.2008 regarding whether the trappings were in the defendant or not, and the plaintiff also rejected the offered oath. Evidence is legal evidence the burden of proof on the plaintiff, dated 04.12.2007 by means of any on the list because it is based on sworn evidence to the plaintiff, jewelry has been taken away from the were prevented from transporting where the defendant of the defendant’s oath on the left side the right to offer a decision should be made according to the assessment results reminded wrong when the outcome of the review in writing, and missing the establishment of the corruption that had the provision provision is not correct.
At the end of the retrial, the court resisted the previous decision by being overturned on grounds and the file was returned to its place.
THE APPELLANT: The defendant’s deputy
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
The lawsuit is filed under Articles 220, 222 and 226 of the TMK.the recovery of personal goods based on the articles by identification is related to the collection of the price if it is not.
Court witness statements, the safe deposit box in the bank before the execution of a preliminary injunction imposed by the court on an unusually early in the morning and opened the safe to be opened by the surveyor by the plaintiff since the chassis is a valuable thing, the defendant is also taken to be decided upon the adoption of supplemental feed during execution based on the case was appealed by the defendant’s attorney a provision.
It has been decided by the Special Department that the provision will be overturned on the same grounds as above.
The plaintiff declared that they did not want to offer an oath after the violation, and the court resisted the previous decision.
The dispute between the local court and the Private Department is being collected at the point where the burden of proof is on the Dec of trappings.
220 of TMK.according to the article, the goods obtained through unrequited earnings are covered by personal goods. TMK’s 222nd. article 226 regulates the form of proof of personal property.the article defines the procedure for the return of these goods.
6 Of the Turkish Civil Code.each of the parties is obliged to prove the existence of the facts on which it bases its right, unless there is a contrary provision in the law in accordance with the provision of the article. As is accepted both in the doctrine and in the case law of the Supreme Court, the burden of proof falls on anyone who claims or defends a situation that is contrary to the usual course of life. On the other hand, a person who wants to extract rights for his own benefit from an event that he claims must prove the event that he claims.
The plaintiff woman claimed that the trappings that were the subject of the lawsuit remained with the defendant, while the defendant husband argued that they were taken away by her. According to life experiments, the usual thing is that this kind of item is on the woman or stored at home, kept. In other words, the abandonment of these by the defendant to his dignity and protection is incompatible with the usual situation. On the other hand, jewelry is one of the kinds of items that can be easily stored, transported, and taken away. Therefore, it is always possible for the woman who is planning to leave the house to take them away in advance, to hide them, as well as to take them with her when she leaves the house. As a result, in normal conditions, it is necessary to accept that the trappings are on the woman. In this case, the woman must prove the existence of trappings, that they were forcibly taken away when she left the house and prevented from being taken away, that she stayed at home. The determination of the Private Department in relation to these aspects is correct and appropriate in principle.
However, although these principles are true, during the application of abstract norms to events, it is necessary to observe the nature of the concrete event, to follow a path of practice that respects rights and justice.
In a concrete case, all file scope as understood from the statement of a witness in a divorce case, the plaintiff and the defendant while residing in Denizli, go to visit Izmir, Izmir their discussion while sitting in a cafe in Denizli leaving there back to the plaintiff as a result of the defendant’s, the plaintiff and it is understood that the female remained in Izmir.
As of the way the incident occurred, the plaintiff woman did not leave the house by designing a divorce. With this thought, it is impossible to accept that the plaintiff woman who did not leave the house took the trappings with her. On the other hand, the plaintiff’s witness, who was listened to by the instruction of Y.C. in his statement, he said that the defendant declared that he would return all his trappings if the plaintiff did not demand material and moral compensation from him during the divorce process, and in this case, the defendant tacitly acknowledged that the trappings were in his presence in the presence of a witness.
From the very beginning of the trial, the plaintiff insisted that the trappings subject to litigation were stored in the defendant’s safe and requested that an injunction be placed on the defendant’s account during the trial. On 15.06.2007, an injunction was written by the court to the bank where the defendant’s account was located, the bank requested that the injunction be placed on the defendant’s account in the letter dated 03.07.2007, as well as the defendant’s rental safe, and information about whether the injunction should be placed on that account was also available. Upon the plaintiff’s request to make a discovery in the safe, two passports, a CD and an insurance policy were found in the defendant’s safe during the examination at the scene, and when the minutes of opening and closing the safe were examined, it was seen that the safe was last opened by the defendant at 08:45 on November 04, 2007.
Paying attention to this date and time, it turns out that it was the day after the court issued an injunction on the defendant’s account. In addition, it is obvious that the items that were placed in the safe as of the time the safe was opened were not items of a nature that would require them to be placed in the safe very early in the day.
As a result, since it is Dec that the plaintiff did not leave the house in a quarrelsome way and with the thought of leaving, that he and his wife went to Izmir and started living apart as a result of an argument between them while they were sitting in a cafe in Izmir, the defendant man cannot benefit from the presumption in favor of himself. In this case, since the burden of proof will change, the burden of proving that he no longer has the gold falls on the defendant man. On the day after the injunction placed on the defendant’s account, it was determined that the defendant’s safe was opened at an unusual time and that there were documents in the safe that did not need to be stored in the bank vault under normal circumstances. In this way, although evidence has been obtained by the local court that will significantly prove that the trappings subject to the case remain in the defendant, an oath has been formally offered to the plaintiff about the amount of the trappings and whether they remain in the defendant in order to strengthen the judge’s opinion.
Considering the entire scope of the file, the development of events and the complementary oath executed by the plaintiff, there is no imprecision in the decision to accept the case, concluding that the plaintiff has proven his case.
However, since the appeals of the defendant’s attorney regarding the price of the trappings ordered by the court according to the way of overturning have not been examined, the file must be sent to the Special Department for the examination of these issues.
result
Although the provision established by the local court on the acceptance of the case on the grounds that the burden of proof falls on the defendant for the reasons described above is in place, the Court of Cassation 6 of the file for the examination of the appeals of the defendant’s deputy on the cost of trappings. To be sent to the Legal Department…
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