Wrote 'Oath Evidence' in Your Complaint but Lost the Case? The Limit on the Judge's Duty to Remind

In civil litigation, "oath evidence" is a means of proof of last resort, invoked to resolve claims that cannot be proven by other evidence. Yet in many complaints, this evidence appears merely as a line item in a list — "our evidence: witnesses, expert examination, oath" — without stating which specific fact (vakıa) is to be proven by the oath. So in this situation, is the judge obliged to "remind" the party of their right to offer an oath? This seemingly technical question in fact plays a decisive role in whether many cases are won or lost.

Why This Matters

Particularly in receivable actions based on debt relationships, where proof by written instrument is required, witnesses cannot be heard. In such situations, parties frequently resort to oath evidence. But if the complaint does not explain which fact (for example, the fact that "the debt was paid in cash") this evidence is offered to prove, there is a risk that the question "do you wish to exercise your right to offer an oath" never arises by the end of the proceedings. This can mean the case is lost purely due to a procedural deficiency, without the merits ever being examined.

Summary of the Situation (A Typical Scenario)

A plaintiff, in filing a receivable action, states only the word "oath" in the evidence list of the complaint, without specifying which concrete claim (for example, that payment was not made, or that the contract was formed on certain terms) is to be proven by the oath. Unable to prove the claim with other evidence during the proceedings, the plaintiff expects the judge to remind them, at the end of the file, of their right to offer an oath. But the judge does not give this reminder, and the case is dismissed. The plaintiff, believing this to be contrary to procedure, appeals.

The Legal Issue

At the root of the problem lies a tension between two principles: the judge's duty to clarify the case (HMK Article 31) and the parties' obligation to particularize their evidence (HMK Article 194). Should the judge assist the parties, or is it not the judge's task to remedy a party's own lack of preparation?

The Legislative Framework

• HMK Article 31 (The judge's duty to clarify the case): The judge may have the parties provide explanations on matters that appear factually or legally unclear; however, this authority may not be used to substitute for the parties' obligation to present and particularize their evidence.
• HMK Article 119/1-f: The complaint must indicate, for each fact alleged, by which evidence it is to be proven.
• HMK Article 194 (Obligation of particularization): The parties are obliged to clearly state the evidence on which they rely and which evidence is offered to prove which fact.
• HMK Article 225 et seq. (Oath): The subject matter of an oath consists of facts that are material to the resolution of the case and are in dispute.

What Do the Court of Cassation and Regional Courts of Appeal Say?

A. Where There Is No Particularization, There Is No Duty to Remind

• Konya Regional Court of Appeal, 3rd Civil Chamber (2024, E. 2024/1399, K. 2024/2210): Held that, under the principle of particularization in HMK Article 194, "it is not possible for the judge to remind the parties, of his or her own motion, of the right to offer an oath, absent an explicit statement by the parties as to which fact is to be proven by oath evidence."
• Istanbul Regional Court of Appeal, 16th Civil Chamber (2020, E. 2017/3593, K. 2020/44): Emphasized that, under the principle that the parties prepare the case, the burden of clearly stating which evidence is offered to prove which fact is imposed on the parties, and held that the judge has no duty to remind.

B. Where the Complaint Explicitly Relies on Oath Evidence, a Reminder Is Required

Conversely, in many decisions, it has been considered sufficient for the judge's reminder that the plaintiff explicitly relied on oath evidence in the complaint:

• In numerous decisions of the Court of Cassation, 3rd Civil Chamber (2018, E. 2017/972, K. 2018/11540 and similar), it has been held that, where the plaintiff was unable to prove the claim with other evidence and explicitly relied on oath evidence in the complaint, the court is obliged to remind the party ex officio of the oath evidence, failing which the examination would be deemed deficient.
• A critical decision of the Court of Cassation, 7th Civil Chamber (2010, E. 2009/6325, K. 2010/4036), held that the court must "remind the plaintiff of the right to offer an oath and have it clarified on which matter the defendant is to be put on oath." This decision offers a synthesis consistent with the duty to clarify under HMK Article 31: the judge may resolve the ambiguity by having the matter clarified.

C. The Phrase "Other Evidence" Is Not Deemed to Constitute Oath Evidence (Decision Unifying Case Law)

The Court of Cassation Decision Unifying Case Law of 3 March 2017 (E. 2015/2, K. 2017/1) definitively held that the use of general expressions in a complaint such as "other evidence, any and all evidence" does not amount to explicitly relying on oath evidence. This decision brought an end to the broad interpretation that had applied under the former Code of Civil Procedure (HUMK), reinforcing the requirement of particularization under the HMK.

Points to Watch

• Writing "oath" is not enough; state the fact as well. Instead of merely writing "oath" in your evidence list, use a concrete statement such as "we have oath evidence relating to the claim that the defendant paid the debt in cash."
• Avoid the phrase "other evidence." This phrase is not deemed, under the Decision Unifying Case Law, to constitute explicit reliance on oath evidence.
• Do not rely on the judge's duty to clarify. Although in practice some courts do proactively remind parties of oath evidence, this is not a guarantee; the primary obligation belongs to the party preparing the complaint.
• Correction through amendment (ıslah) is possible. This deficiency at the complaint stage may be remedied during the examination stage through amendment, or with the express consent of the opposing party.
• Pay attention to who bears the burden of proof. The right to offer an oath belongs only to the party who bears the burden of proof and who has failed to prove the claim with other evidence.

Conclusion: What Should You Do?

Oath evidence, when used correctly, is a powerful tool that can change the fate of a case; but if not presented in accordance with proper procedure, it may prove entirely useless.

• When preparing your complaint or answer, if you rely on oath evidence, state clearly and explicitly which concrete fact you intend to prove with that evidence.
• Avoid general expressions such as "other evidence"; these are not deemed to constitute reliance on oath evidence.
• If this deficiency exists in your complaint, consider correcting it through amendment (ıslah) before the proceedings advance.
• Because such fine distinctions in procedural law can lead to the loss of a case, obtaining support from an attorney from the complaint-drafting stage onward is of great importance.