The fate of money sent via bank transfer without any explanation is regulated in Article 102 of the Turkish Code of Obligations. According to this provision, if no legally valid explanation is provided or the receipt is clear, the payment is deemed to have been made for a current debt. More clearly, if no explanation is provided regarding the reason for the transfer in the explanation section, the transfer constitutes the payment of the debt by the person making the transfer to the other party. Similarly, the Court of Cassation, in its established precedents, accepts as a presumption that money sent via bank transfer without an explicit explanation of the transfer as a debt is sent to pay a debt, and states that the sender of the transfer must prove the contrary of this presumption.
Furthermore, the Court of Cassation acknowledges that bank transfers sent without explanation cannot be considered as the beginning of written evidence, but bank transfer receipts with explanations can serve as the beginning of evidence. Furthermore, the Court of Cassation’s decisions emphasize that if the party alleging that the money sent by bank transfer without explanation was sent as a debt relies on “oath” evidence in their petition, the court must remind the plaintiff of their right to take an oath and make a decision on the case based on its outcome. Accordingly, if the person offered an oath swears, the non-existence of the fact alleged by the party offering the oath is proven with conclusive evidence. If the party duly summoned to take the oath attends the hearing but fails to take the oath or fails to return the oath to the party offering the oath, they are deemed to have confessed to the fact that forms the subject of the oath.
Court of Cassation, 13th Civil Chamber, Merits No: 2014/27506, Decision No: 2015/2152;
“The plaintiff claimed that he sent 49,737,50 TL to the defendant via bank transfer as a debt. He requested payment of the loaned money, but the payment was not made. Consequently, he initiated enforcement proceedings to collect the debt. He objected to the proceedings unfairly. He requested the annulment of the objection and a judgment for denial of enforcement.
The defendant argued that he did not borrow money from the plaintiff, that the money sent via bank transfer was repayment of a receivable from the plaintiff by a non-compliant individual named …, a partner in the hotel where he worked. He then sent the money to the non-compliant individual … to pay off the plaintiff’s debt. He also argued that the proceedings were unfair. He requested dismissal of the case.
…a money order is a means of payment and demonstrates the payment of an existing debt. The person sending the money order must prove the contrary of this presumption. In his defense, the defendant denied the debt and made a reasoned denial. Furthermore, the money order receipt contained no evidence indicating that the money sent was a loan. It appears there is no annotation. In its current form, the transfer is insufficient to prove that the money was sent as a debt. In the present case, since the defendant denies the loan relationship, the plaintiff must prove the existence of the loan relationship. The burden of proof lies with the plaintiff. Therefore, while the court should have conducted an investigation and rendered a judgment based on its findings, the court’s decision to accept the case based on an erroneous written assessment is contrary to procedure and law and requires reversal.”[1]
Court of Cassation 13th Civil Chamber, Merits No: 2008/2938, Decision No: 2008/8575;
“The plaintiff filed a lawsuit claiming that he sent money to the defendant to become a partner in …, which belonged to the defendant, but was not accepted as a partner. The defendant argued that the money sent via bank transfer was sent to pay the plaintiff’s debt to him. The defendant’s defense, stating that he received the money, constitutes a reasoned denial. Therefore, the plaintiff must prove with written documentation that he sent the money to become a partner due to the legal relationship between them. The bank receipt copies subpoenaed also contain no explanation as to the purpose for which the money was sent. Therefore, the plaintiff has failed to prove with written documentation that the money he sent was sent to the defendant to become a partner, as he claimed. However, since it was understood that the plaintiff relied on oath evidence by mentioning “all legal evidence” in his petition, the court should have reminded the plaintiff of his right to swear an oath to the defendant on this matter, and while a decision consistent with the outcome should have been rendered, the written judgment is contrary to procedure and law. It requires reversal.”[2]
Court of Cassation 13th Civil Chamber, Merits No: 2011/13759, Decision No: 2011/18936;
“The defendant sent 9,999,84 TL via bank transfer on October 28, 2008, to the plaintiff, and the plaintiff received this money, is not in dispute. The plaintiff claimed that this money was transferred to his name by the defendant to be sent to a non-compliant employee and company director at the same company, and that it was not sent as a debt. The defendant, however, maintained that he issued the money transfer to the plaintiff as a debt. A review of the bank receipt in the file reveals that there is no explanation that this money was sent as a debt to the plaintiff. It should be noted first that the money transfer is a means of payment, not a document of debt. In this case, the defendant must prove with legal evidence that the money subject to the lawsuit and the proceedings was sent as a debt. The plaintiff’s failure to object to the enforcement proceedings initiated against him within the time limit and his making some payments under threat of enforcement cannot constitute evidence that this money was not sent as a debt. The defendant’s oath-taking before the court, for whom the burden of proof rests, has no bearing on the outcome. From the evidence gathered, It appears that the defendant failed to prove that he sent the money, which is the subject of the lawsuit and the proceedings, as a debt to the plaintiff. The defendant did not rely on oath in the evidence list. In this case, while a decision should be made to determine that the plaintiff is not indebted to the defendant due to the initiated proceedings and to recover the amount paid, the issuance of a written judgment by reversing the burden of proof is contrary to procedure and law and requires reversal.”[3]
Court of Cassation 13th Civil Chamber, Merits No: 2015/1446, Decision No: 2015/29277;
“A bank transfer, as a rule, is a document indicating the payment of an existing debt, and the person sending the money via the bank transfer must prove the contrary of this presumption. The plaintiff has made a reasoned denial, stating that the money sent via the transfer was sent due to the defendants’ existing debts. Contrary to the court’s acceptance, the plaintiff has not assumed the burden of proof with this statement. Since the document relied upon by the defendants is a money transfer receipt, constituting a presumption that the existing debt was paid, and the plaintiff has made a reasoned denial, the burden of proof in the case lies with the defendants. Since the burden of proof rests with the defendants, the defendants are obligated to prove their allegations. While the court should have considered the burden of proof to be on the defendants and requested and received evidence from the defendants, and rendered a decision consistent with the outcome, issuing a written decision based on an erroneous assessment and assuming that the burden of proof lies with the plaintiff is contrary to procedure and law. It requires reversal.”[4]
Court of Cassation 13th Civil Chamber, Merits No: 2012/8428, Decision No: 2012/11398;
“It is undisputed that the plaintiff sent 25,000.00 Turkish Lira to the defendant via bank transfer, and the defendant received it. Although the plaintiff claimed the money was sent as a debt, the defendant maintained that it was sent without consideration. It should be noted immediately that a money transfer is a means of payment and indicates the payment of an existing debt. The person sending the money transfer must prove otherwise. The defendant did not admit the debt in his defense, but submitted a reasoned denial. Furthermore, it appears that the bank receipt contains no annotation regarding the reason for the transfer, other than the statement “Opel Astra fee for…” The money transfer, in its current form, is insufficient to prove that the money was sent as a debt. In the present case, since the defendant denies the existence of the loan relationship, the plaintiff must prove the existence of the loan relationship. While the plaintiff’s evidence should have been collected and the decision made in this regard, reversing the burden of proof and accepting the case is procedurally and legally unlawful and grounds for reversal.”[5]
Court of Cassation 13th Civil Chamber, Merits No: 2014/28725, Decision No: 2015/20230;
“The plaintiff claimed that she and the defendant were friends with the intention of getting married between 2008 and 2011. During this period, she loaned the defendant a total of 50,000 TL via bank transfer. While 12,000 TL was paid, the remaining 38,000 TL remained unpaid. The plaintiff filed a lawsuit, requesting the annulment of the objection to the lawsuit and the collection of enforcement denial compensation from the defendant. The defendant argued that the transfers were sent to offset the plaintiff’s debt and requested the dismissal of the lawsuit.
The court accepted the transfers as evidence, and the debt agreement was proven through witness testimonies and text message recordings (SMS) sent via GSM. The defendant also acknowledged the debt of 36,000 TL to the plaintiff in an SMS record sent to the plaintiff on June 7, 2011. After deducting the 12,000 TL payment, the remaining debt remained at 24,000 TL. The lawsuit was partially accepted, the defendant’s objection to the proceedings was partially annulled, and the proceedings continued for 24,000 TL. The defendant appealed the judgment.
This lawsuit seeks to annul the plaintiff’s objection based on the allegation that the money sent to the defendant’s account was a debit. The bank receipts on which the plaintiff bases his claim show a transfer to the defendant’s account. There is no statement on the transfer indicating that this money was given as a loan.
In the concrete case, the plaintiff’s reliance on the document alone is not sufficient to prove a loan. As a rule, a transfer is a means of payment, and the transfer document must state that the money was sent as a debt. Otherwise, it should be presumed that the transfer was sent to pay a debt. The plaintiff must prove that he is a creditor due to the transfer, which is proof of debt payment. Because the transfer cannot be accepted as the beginning of written evidence, and witnesses cannot be heard regarding the amount in this dispute.
Although the expert report on which the judgment is based indicates that the defendant sent the plaintiff Although the SMS recording dated June 7, 2011, was deemed a “document” under Article 199 of Civil Procedure Code No. 6100, and the defendant acknowledged a debt of 36,000 TL through this recording, the lawsuit was filed on April 11, 2012, and Civil Procedure Code No. 6100 was not in effect as of the date of the lawsuit. Furthermore, the defendant did not explicitly acknowledge the SMS recording. Because the defendant lacked explicit consent, no witnesses could be heard regarding the amount. Therefore, the plaintiff has failed to substantiate his claim with legal evidence. Therefore, although the plaintiff has failed to substantiate his claim regarding the money he sent from the account with legal evidence, it is understood that he explicitly relied on “oath” evidence in Article 7 of the petition. Therefore, the plaintiff should have been reminded of his right to an oath, and a decision should have been rendered in the case based on the outcome. The issuance of a written judgment is unlawful and unlawful, and requires the judgment to be overturned.”[6]
[1] Court of Cassation, 13th Civil Chamber, Merits No: 2014/27506, Decision No: 2015/2152.
[2] Court of Cassation 13th Civil Chamber, Merits No: 2008/2938, Decision No: 2008/8575.
[3] Court of Cassation 13th Civil Chamber, Merits No: 2011/13759, Decision No: 2011/18936.
[4] Court of Cassation 13th Civil Chamber, Merits No: 2015/1446, Decision No: 2015/29277.
[5] Court of Cassation 13th Civil Chamber, Merits No: 2012/8428, Decision No: 2012/11398.
[6] Court of Cassation 13th Civil Chamber, Merits No: 2014/28725, Decision No: 2015/20230.