Why is the "Burden of Proof" Important?

Being right in a lawsuit is not enough; it with evidence . The burden of proof determines which party must prove which fact, to what extent, and with what evidence. This is one of the cornerstones of the court process: an unproven claim is rejected; conversely, if the claim is proven, a legal consequence arises. Therefore, correctly determining who bears the burden of proof directly affects the lawsuit strategy, the evidence that should be requested, and ultimately the judge's decision.

Below, we will first explain the general rule and its legal basis; then, we will explain how and why the burden of proof changes in different situations—such as legal presumption, ease of obtaining evidence, judicial discretion, and transfer of obligations by contract—with examples and case law.

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General Rule: Burden of Proof Rule (Fundamental Principle)

The general rule is: The claimant bears the burden of proof. This rule is an established principle in Turkish law, both in civil law and procedural law. It has been adopted particularly the Code of Civil Procedureand the Turkish Civil Code(TMK). In summary:

• Each party is obligated to prove the existence of the facts upon which it bases its claim (based on Article 6 of the Turkish Civil Code / Article 190 of the Turkish Code of Civil Procedure).

In practice, this principle works as follows: If a plaintiff is claiming a debt, compensation, property right, or other legal outcome, they must present evidence to support that claim. The defendant, on the other hand, must prove the facts they wish to refute the claim or base their defense on.

Source: Article 190 of the Code of Civil Procedure states, "Unless otherwise provided by law, the burden of proof rests with the party who derives a right in their favor from the legal consequences attached to the alleged fact."

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The Difference Between the Right to Prove and the Burden of Proof

To avoid confusion, here's a brief distinction:

• Right to prove evidence (Article 189 of the Code of Civil Procedure, etc.): This relates to the parties' right to present evidence and which evidence the court will accept.

• Burden of proof (Code of Civil Procedure Article 190 / Turkish Civil Code Article 6): Specifies which party is obliged to prove which fact.

Both concepts are considered together; because the right to prove something is the possibility of exercising the burden of proof.

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The Effect of Legal Presumption and Burden of Proof

Legal presumption: This is when the legislator assumes the existence or consequences of certain facts in certain circumstances. The consequence of a presumption is this: the party relying on the presumption is obligated to prove the fact forming the basis of the presumption; however, the opposing party, claiming that the presumption does not exist, is obligated to prove the contrary. This creates a kind of divided burden : the party establishing the presumption must prove its basis, while the party claiming the contrary must prove its refutation.

Example: A payment receipt or promissory note may, under certain circumstances, constitute a presumptive proof of payment; however, the other party may prove the contrary (for example, that the note was fraudulently prepared). Supreme Court precedents frequently emphasize that in such cases, the burden of proof to refute the presumption shifts to the other party.

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Introduction to Cases Where the Burden of Proof Shifts/Can Shift

The burden of proof does not remain constant in every case. Below are the main situations in which the burden of proof changes, and the reasons why each affects the burden of proof are explained:

1. Explicit exception or special provision in the law

2. If there is a legal presumption

3. Distribution of evidence or means of evidence (ease/difficulty of obtaining evidence)

4. Assumption of burden by contract or agreement between the parties (burden of proof contract)

5. The reversal of roles in the relationship between fault and damage in tort (compensation) cases

6. In special procedural cases such as enforcement/bankruptcy and annulment of objections

7. Case law and presumptive applications regarding the ordinary course of life

Let's examine each one with examples and explanations.

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1) Explicit Exception or Special Provision in the Law

In some cases, the legislator may explicitly regulate the burden of proof, thus providing for the opposite of the general rule. For example, in some consumer law provisions or special regulations of labor law, the burden of proof for certain facts may be delegated. If such a regulation exists, the legal provisions are procedurally/practically binding; the court cannot produce a different result.

Practical Outcome: Before filing a lawsuit, it should be checked which legal provisions apply; a specific law may have altered the burden of proof.

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2) Legal presumption

The practical effect of a presumption is that the burden of proof divided : the party relying on the presumption is obligated to prove the basis of the presumption; the burden of refuting the presumption falls on the opposing party. This is particularly important with regard to the evidentiary value of written documents such as promissory notes, invoices, and receipts.

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3) Distribution of Evidence or Evidential Tools (Ease/Difficulty of Obtaining Evidence)

In some cases, obtaining certain evidence may be very difficult for one party and easy for another. In law, this situation the ease/difficulty of obtaining evidence . Courts, in order to protect the right and fully reveal the truth, may impose additional burden of proof on the party with easier access to evidence or request clarification from the opposing party.

Example: If an employee claims to have worked for a particular time, and the employer has payroll records, personnel records, and premium declarations, then the employer may be expected to provide these documents. There are examples in the Supreme Court's practice of balancing the burden of proof regarding the employee's working time.

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4) Change in Burden of Proof by Contract or Agreement Between the Parties

Within the limits of freedom of contract, the parties may make arrangements between themselves regarding the burden of proof; for example, it may be agreed that the party claiming the existence of a particular situation in the contract shall submit documents that facilitate proof. However, this must not be contrary to law and mandatory regulations. In legal doctrine, there is also the view that the burden of proof cannot be increased by the parties except in explicitly agreed-upon cases; this should be carefully regulated in practice.

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5) Fault and Causation in Tort (Compensation) Cases

The general rule in compensation cases is that the burden of proof for the damage, the perpetrator of the damage, and the cause-and-effect relationship rests with the plaintiff. However, in practice, proving fault and the cause-and-effect relationship can sometimes be complex. Courts may assign part of the fault to the opposing party depending on the evidence; for example, a party who has knowledge of the circumstances of the event and has access to the relevant documents may have a burden of explanation. This situation can cause a partial shift in the burden of proof.

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6) Special Procedural Cases: Enforcement Proceedings, Annulment of Objection, Service Determination Cases

In some special procedural cases, the burden of proof has unique consequences:

• Rejection of objection: In enforcement proceedings, the burden of proof may change if the debtor raising an objection makes certain claims; generally, the creditor initiating the enforcement proceedings is responsible for proving the existence of the debt, but the debtor's statement may affect the burden of proof.

• Employment determination lawsuits: While the burden of proof generally rests with the employee when proving the employment relationship is required, in practice, the burden of proof may be balanced or shifted due to the employer's obligation to provide documents such as records and payrolls. Supreme Court decisions have regulated this matter.

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7) Case Law and the Presumption of "Ordinary Course of Life"

A common approach in Supreme Court precedents is that if a situation is alleged to be "contrary to the ordinary course of life," the party alleging that situation bears the burden of proof; conversely, prolonged periods of inaction can create a presumptive effect against the defendant, and the opposing party may be reminded of their right to take an oath. The use of such presumptive effects and precedents influences the burden of proof.

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Types of Proof and the Relationship Between the Burden of Proof

The question of which evidence the court accepts and who has the obligation to present that evidence is important in the specific case. The main types of evidence are:

• Written evidence (deed, contract, invoice, receipt): Written evidence often constitutes a presumption; in this case, the burden of proof shifts to refuting the presumption.

• Witness testimony: The party presenting the witness's testimony requests that the witnesses be heard; the credibility of the witnesses is at the discretion of the court.

• Expert report: Especially in technical disputes, the findings of an expert have evidentiary value; the party requesting the expert report presents it as proof, but the opposing party may criticize the report or request an additional expert.

• Oath: An oath is a supplementary element in terms of proof; the court may request an oath, or a party may have the right to request one. The Code of Civil Procedure specifies the rules regarding oaths and requests for oaths.

The distribution and strength of evidence can effectively change the burden of proof. For example, the presumption of written evidence increases the burden of proof for the opposing party.

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What Happens When the Burden of Proof Shifts? Procedural and Substantive Consequences

Shifting the burden of proof leads to the following consequences:

• The strategy for requesting and producing evidence changes as the case progresses. The parties must determine in advance which documents to gather, from whom to bring witnesses, and which expert to consult.

• The court's discretion varies. When the burden of proof shifts to the opposing party, the court will likely wait for the opposing party to provide an explanation; otherwise, it may accept the claim.

• The basis for judicial decisions changes. Claims from parties lacking the burden of proof are rejected; if applicable, decisions based on presumptions may be made for acceptance/rejection.

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Application Tips

1. Early evidence gathering: Determine your burden of proof and gather evidence accordingly before filing a lawsuit.

2. Examine the legal regulations: A specific legal provision may have altered the burden of proof (e.g., consumer law, labor law regulations).

3. If there is presumption, develop a refutation strategy: If you have a counterclaim based on presumption, plan how to refute it (documents, oaths, witnesses, etc.).

4. Pay attention to ease of access to evidence: Determine which party has easier access to the evidence and take steps to request documents from the court.

5. Include clear provisions in contracts: In major commercial contracts, include explicit clauses regarding the burden of proof and evidence (within legally permissible limits).

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Common Mistakes and How to Avoid Them?

• Assuming the general rule and ignoring legal exceptions. Solution: Conduct preliminary research and review legislation.

• Failure to collect evidence in a timely manner (statute of limitations, deletion of records, etc.). Solution: Request for early action and precautionary measures (preliminary evidence gathering).

• Ignoring ways to refute the presumption. Solution: Preparing documents/witnesses/oaths to refute the presumption.

• Ignoring precedents in labor law and private court cases. Solution: Research precedents from the Supreme Court and regional courts.

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Case Studies (Short Scenarios)

1. Rent collection lawsuit: The tenant claims non-payment of rent; if the landlord presents a contract and receipts, presumption is established; if the tenant claims the receipts are forged instead of proving non-payment, the burden of proof shifts to them.

2. Employee's length of service lawsuit: The employee claims their length of service; the employer may be expected to provide documents such as payroll records and social security records; otherwise, the court may accept the employee's claim. There are examples of this in Supreme Court precedents.

3. Promissory note lawsuit: A promissory note is strong written evidence for the creditor; if the debtor claims the note is forged, the burden of proof shifts to the debtor.

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Conclusion

• Basic Principle: As a general rule, the burden of proof rests with the claiming party.

• Exceptions: The burden of proof may change due to reasons such as law, presumption, distribution of evidence, and contracts.

• Application: In labor and enforcement cases, where promissory notes and written evidence are involved, the burden of proof may shift in accordance with Supreme Court precedents; therefore, careful analysis of the specific case is essential.