Beginning of Evidence in the Proof of a Contract of Faith
(Y14HD-K.2021/3720)
A fiduciary transaction is a transaction in which the believer transfers a thing or right within the scope of its assets to the believer as collateral or to be managed, and the believer uses the thing subject to the fiduciary in accordance with the conditions in the fiduciary agreement and returns it to the believer in the specified manner when the purpose is realized. With a fiduciary transaction, the believer transfers a property or a right to a receivable to the believer through a beneficial transaction, but also places the believer under certain obligations through an obligatory contract.
The parties to a fiduciary transaction are the believer and the believer. A person who faithfully transfers a right or an object to a person he trusts is called a “believer”. The person who directly or indirectly uses the transferred right or object for his/her own benefit as a right belonging to him/her is called the “believer”. The right or object that the believer gives to the believer is characterized as “the thing subject to belief”. In a fiduciary transaction, the parties to the beneficial transaction are the same as the parties to the agreement giving rise to a debt. In a fiduciary transaction, the believer is obliged to comply with the agreed conditions while exercising his right, and to transfer the right or object back to the believer (or to the third party indicated by him) when the purpose is realized or the period expires. A fiduciary transaction is a contract that gives the person who made the transfer, i.e. the believer, the right to demand the return of the transfer when certain conditions are met. If this obligation is not fulfilled, it may be requested to be fulfilled by judgment through litigation.
Pursuant to the Supreme Court of Appeal Unification of Jurisprudence Decision dated 05.02.1947 and numbered 20/6, a belief contract can only be proven by written evidence. This written evidence must be a document brought by the parties and bearing their signatures.
In this case, there is no written document signed by the parties stating that the immovable property subject to the lawsuit belonged to the plaintiff and was transferred to the defendant on the condition of return. Even though there is no written evidence of the described nature, if there is a document that is not sufficient to prove the entire dispute between the parties, but there is a document in the nature of “beginning of evidence” (such as a deed or letter written by hand but not signed by the believer, a document written by typewriter or computer but bearing the initials of the believer, a document with fingerprints or sealed documents that have not been duly approved), the belief contract can be proved by any evidence, including “witnesses”, in accordance with Article 202 of the CCP No. 6100.
Since the money in the plaintiff’s account was withdrawn by the plaintiff from the bank and the immovable property in question was purchased on a date compatible with the dates of withdrawal, it cannot be said that the money withdrawn from the plaintiff’s account is the beginning of evidence.
If there is no written evidence or “prima facie evidence”, it is possible to prove the contract of faith by conclusive evidence such as affirmation (Art. 188 CCP) and oath (Art. 225 et seq. CCP). If the plaintiff relies on the oath evidence, the judge should remind the plaintiff of this right. (The decision of the Court of Cassation General Assembly of Civil Chambers dated 09.12.2015, numbered 2014/14-516 Esas, 2015/2838 is in this direction).
Since it is understood that the plaintiff has waived the oath evidence that the plaintiff explicitly relied on in the petition, it was not deemed correct to make a written decision while it should be decided to dismiss the case that cannot be proved, and the judgment should be reversed.
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