Ercüment Erdem Prof. Dr. H. Murat Develioglu

Have Form Requirements been brought for Engagements?

August 2019

Introduction

In accordance with the two decisions of the 3rd Civil Chamber of the Court of Cassation, the validity of “engagement” depends on the engagement to be made in a certain form. However, both decisions are contrary to the basic principles of Turkish private law. Firstly, general rules regarding the form of engagement will be explained, below, and then these decisions will be discussed.

Form of Legal Procedures in General

One of the basic principles in Turkish private law is the freedom of contract principle. One of the sub-branches of the freedom of contract principle is the “freedom of form”. Indeed, according to Article 12 in the “General Provisions” section of the Turkish Code of Obligations (“TCO”), titled “Form of Contracts”, ‘the validity of a contract is not subject to any particular form unless otherwise specified by the law’.

Whether an Engagement is Subject to Form

As stated, above, there is no form requirement for validity of legal transactions unless otherwise specified by the law. The Turkish Civil Code states that engagements are made with a reciprocal promise of marriage by a man and a woman, and no form requirement is required as to how this promise will be made. In the doctrine, it is also clearly and undoubtedly accepted that engagements are not subject to any form requirement.

For instance, according to Erdem, “Engagement takes place when the parties promise to marry, reciprocally; in other words, when one party accepts the proposal of the other party. There is no specific form required by law for engagement. The will of the parties to marry can be declared explicitly (verbally or in writing) and, as well, it can be provided, implicitly (in particular, by the behaviors exhibiting the will). In events such as engagement ceremonies and ring exchanges, these are considered only in terms of showing the will of the parties".[1]

Again, according to Dural/Öğüz/Gümüş, “The statement of will, which includes the promise of marriage, could be made explicitly, either verbally or in writing, or by behavior that reveals this desire. If a man and woman extend their hands to wear an engagement ring without saying anything, this is considered as behavior that includes the promise of marriage. Likewise, some behaviors may constitute a presumption of will for the existence of the promise of marriage. The existence of long-term, sexual intercourse between parties can be interpreted as such”. [2]

According to the same authors, there is no obstacle for parties to attribute the validity of an engagement to a form, for example, as sought in the decisions of the Court of Cassation, below, to an engagement ceremony. This is a “voluntary form” in terms of Article 17 of the TCO. But it should be known that even in this case, an engagement that is not subject to any form can be made, even by not performing the ceremony[3].

Decisions of the 3rd Civil Chamber of the Court of Cassation Considering Engagement

In the case that was the subject of the decision of the 3rd Civil Chamber of the Court of Cassation dated 05.03.2018 and numbered 12231/2059, the plaintiff requested pecuniary and non-pecuniary damages due to the breaking-off of the engagement. The Court of Cassation rejected this decision, as follows:

“It has been decided on the merits of the case by the Court with the statement that the dispute is based on Article 121 of the Turkish Civil Code (“TCC”) regarding breaking off an engagement.

An engagement is a kind of promise regarding the marriage of a girl and a boy who are at marriageable age, given by their families and close friends, in line with the customs and traditions of the region.

An engagement is a family law agreement, and it is regulated under Article 118 of the TCC without any form requirement. In order for the engagement is to be legally valid, it shall be conducted with a ritual, be announced, and be realized with the witness by family members.

Although the claimant requests pecuniary and non-pecuniary damages with a claim that her personal rights have damaged as the result of the breaking-off of the engagement, an engagement ceremony had not been conducted in a traditional manner, and this matter has been accepted by the claimant.

In the case at hand, since the parties gathered sporadically in an informal manner, it is impossible to find the existence of an engagement and a relationship under which legal protection is necessitated. Since it is understood from the contents of the file that the parties are not engaged, the parties’ relationship shall be evaluated, not according to principles of family law, but with the law of obligations, especially with the provisions regarding tortious acts.”

The same Chamber reached the same conclusion in its decision numbered 22515/9548 and dated 04.10.2018.

The conclusion under which the parties have subjected the engagement to a voluntary form shall not be drawn from any of the decisions. The 3rd Civil Chamber of the Court of Cassation has clearly stated that an engagement is a family law agreement, and any form requirement is not regulated under Article 118 of the TCC. Nevertheless, the Chamber has subjected engagements to a form requirement, stating that “in order for the engagement to be legally valid, it shall be conducted with a ritual, be announced, and be realized through the witnessing by the family members”.

Conclusion

The decision of the 3rd Civil Chamber of the Court of Cassation links the validity of engagements through the conduct of a ritual, being announced, and being realized through the witness of family members. This decision is clearly contrary to the freedom of form principle that is the basic rule of Turkish private law, since no form requirement is regulated under the law.

[1] Mehmet Erdem: Aile Hukuku, Istanbul 2019, p. 24.

[2] Mustafa Dural/Tufan Öğüz/Mustafa Alper Gümüş: Türk Özel Hukuku, V. III, Aile Hukuku, Istanbul 2019, p. 16.

[3] Dural/ Öğüz/ Gümüş: p. 18.