WHAT ARE THE AMENDMENTS INTRODUCED REGARDING THE “SUBMISSION AND EVIDENTIALITY OF COMMERCIAL BOOKS? 29 October 2020

Many changes have been made in the Code of Civil Procedure numbered 6100 with the Law No.7251 Amending the Code of Civil Procedure which published on 28.07.2020 dated and 31199 numbered Official Gazette. An example of these changes is the Article 222 paragraph 3 of the Code of Civil Procedure which is regulating the procedures of submission of commercial books to the court as an evidence.

What Is Commercial Book?

Commercial books, according to the regulation under the 64th article of Turkish Commercial Code numbered 6102, are defined as the documents, that merchants are obliged to keep regarding their business, which can create an opinion in a reasonable time period for third party experts who are investigating the operations and financial status of the organization. Liability of keeping commercial books starts with the establishment of the organization and expires after the end of liquidation of the organization.

Are Commercial Books Reliable As An Evidence In Courts?

Commercial books consisting of records containing the transactions that have consequences in commercial life of real and / or legal persons, have a major role in merchant’s or organization’s supervision and management. In addition, commercial books can be examined because they have the quality to enlighten the dispute arising from the relationship in which a merchant or a commercial organization is a party.

In other words, commercial books have evidential value in courts. Commercial books can also be used in favor of or against the owner as an evidence to clarify the disputes.

Are Commercial Books Accepted as Final Evidence or Discretionary Evidence?

In commercial cases, if legal transactions cannot be proved by final evidences or discretionary evidences, or if it is undesirable to prove by, commercial books can be used instead.

Evidential status of commercial books is controversial and they are not defined as final or discretionary evidence in the Code of Civil Procedure and it is only mentioned that they can be used in favor of or against the owner.

In some decisions of the Supreme Court, it is observed that commercial books are used as evidence while the characteristics of evidence are determined according to the documents that are attached to the commercial books.

How It The Procedure of Submitting The Commercial Books to Court As Evidences? Does Every Commercial Book Provide the Qualification to Be Evidence? In Which Cases Commercial Books Constitutes Evidence In Favor of the Owner? Who Is Authorized to Ask for Submission of Commercial Books to the Court?

According to the article 222 paragraph 1 of the Code of Civil Procedure numbered 6100, in case of dispute resolution, court can decide to ask for submission and investigation of commercial books spontaneously or on demand of one of the parties.

According to the Code of Civil Procedure Numbered 6100, What Is the Criteria for Commercial Books to Be Accepted As Evidence?

It is sought to comply with the provision of Article 222, paragraph 2 of Code of Civil Procedure numbered 6100 for commercial books to be accepted as evidence in commercial cases which is stating that commercial books shall be kept fully and correctly, opening and closing approvals should have been made and the books records should have confirmed each other.

In Order to Use the Commercial Books in Favor of the Owner, Which Criteria Shall Be Met?

Within the general principle of law, it is not possible for a document prepared by a person to be considered as evidence in this person’s favor. As it is seen, it is an exceptional situation to be count as evidence in favor of the owner of the commercial books.

In order to be evidence in favor of the owner, commercial books shall meet a number of conditions at the same time. These conditions are regulated in the article 222 paragraph 3 of the Code of Civil Procedure which is named “Submission and Evidentiality of Commercial Books” by stating that "the records in the commercial books of the other party kept in accordance with the same conditions are not contrary to these or contain no records in the relevant matter, or the contrary is not proved by promissory notes or other definitive evidence."

In other words, as the article 222 states, in order to consider commercial books as evidence in favor of the owner,

1. At least one party must be a merchant,
2. Dispute must be arise from the legal transaction about the commercial organization of at least one  party
3. Books that considered to be evidence in favor of the owner must be a commercial book
4. Commercial books must be in accordance with the obligations of relevant laws
5. All the books that kept by merchant must verify each other
6. There must be no record on the commercial book of the other party or the records must be not contrary to these.

In the Scope of HMK, What Are the Amendments Introduced In the Criteria for Commercial Books to Be Evidence In Favor of the Owner With The Law No. 7251 Entered Into Force?

Article 23 of Law No.7251 Amending the Code of Civil Procedure, which entered into force on 28.07.2020, has made an amendment and supplementation on the article 222, paragraph 3 of the Code of Civil Procedure.

Previously, one of the conditions required by the law was that there were no records on the relevant issue in the commercial books of the other party kept in accordance with the same conditions. However within the scope of the amendment introduced on 28.07.2020, instead of this condition; it is required that the other party has not submitted its commercial books.

After the amendment made on 28.07.2020, there is also an supplementation on the same paragraph which states that commercial book kept in accordance with the conditions cannot be used as evidence in favor of the owner if does not contain any records on the relevant issue.

In this case, after the amendment and supplementation made by law no 7251, in order to use commercial books as evidence in favor of the owner, new conditions can be listed as;

1. At least one party must be a merchant,
2. Dispute must be arise from the legal transaction about the commercial organization of at least one party
3. Books that considered to be evidence in favor of the owner must be a commercial book
4. Commercial books must be in accordance with the obligations of relevant laws
5. All the books that kept by merchant must verify each other
6. It is required that the other party has not  submitted its commercial books or commercial books of other party required not to be contrary
7. In the commercial book of the party who used it as evidence in favor, should also have record on the relevant issue.

Since the record of the non-existent transactions cannot be kept, changes have been made due to the weight of the burden of proof. In this respect, making a decision against the other party with the record in the commercial book of only one party is abandoned. And the wording of the relevant article has been changed to result in the detriment of the party that does not actually fulfill the burden of proof by not presenting its commercial book. Thanks to the change, integrity with the other law provisions about the burden of proof has been achieved.