Is this a take-home exam question or are you kidding us? During my law school exchange year in the States, I used to get punished by similar quetions...

Alas, you might be serious (if someone could manage to sell her father's soul on the net lately), or better, a serious law student, so I will help! Let me tell you that in this field of internet law, the legal situation in Turkey is anything but a sytematic order.

Normally, general rules on Law of Obligations, particulary those on contracts apply, if by analogy you can establish that a contract was aggreed upon. If you can’t, it might be the case that rules on „unjust enrichment“ (set forth by the Code of Obligations) apply (which makes the issue a little bit more complicated)

But this an issue with a foreign element. So, rules on conflicts of law might also get involved. Furthermore, if the seller is a trader, then provisions of the Commercial Code would come into question as well. Electronic contracts, if fulfilled the requirements of traditional ones are considered as usual contracts here. Some contracts involving obligations above a certain amount or certain goods and services necessitate hand-written documents (and according to the newly adapted law onn electronic signature a Turkish and secure electronic one) or an agreement before the notary public. Please distinguish here between the rules on establishment of a contract and evidence rules on whether a contract have been established at all.

With whom did you agree upon the contract? Is he/she just an individual or a legal person or a trader? Did you and the other part pre-determine the law to be applied (if so, and if another country, Turkish law can not come into question at all) If you did not pre-determine the applicable law, then your country’s law would govern the situation the same -since according to the Code on Conflict of Laws in Turkey, the law of the location, where the essential debt of the synallagmatic contract is to be fulfilled, should be the governing law. The essential debt here is "the transfer of the aircraft", and the fulfilling location seems to be your location (all this under the general principles of contracts law of Turkey with a view to rules concerning conflict of laws).

And this is also valid for statute of limitations. The law of the fulfilling locality applies.

But all this is not about jurisdiction! They are only about the applicable law...There again, we have to resort to the Turkish Code of Conflict of Laws which stipulates that, if not otherwise agreed upon by the parties, general jurisdiction rules of the The Civil Procedural Law apply. According to these, and as a general rule, the „Court“ where the legal residence of the respondent has jurisdiction. (Competence is another thing which should be discussed according to the nature of the contract etc.) So, you might well be entitled to file a suit in Turkey.

If this is just not a brain gym, or a take-home exam, just give him a deadline (officially through a Turkish notary public) which you deem appropriate according to the circumstances (exception to the rule is a clear evidence that the other part has been so dishonest to let the final deadline appear unreasonable). Than if he does not hold the deadline, then file a suit before the competent court (depends on his status –trader or not etc.) where he legally resides. Than the court needs to determine which state’s law will apply. If Turkish law on contracts comes into question, you can demand that your money back, plus compensation.

First of all, and this is very serious, inquire exactly about where the person resides, what he does, his assets etc. and secure possible electronic evidence as well as money transfer documents. For some precautionary measures might be applicable.

This said, I have not talked about the possible involvement of criminal law. If it appears to you that everything was just a fake business at all and a fraud, then you can file an official complaint before the public prosecutor’s office. But again, the whole story must be discussed with a view to the jurisdiction rules concerning criminal law. Don’t forget, if so, this might be a crime committed by a Turkish national against a foreign national, and God knows „where“ (this could be decisive on jurisdiction and competence of the courts). Yet it should not be discussed at this stage.

Last but not least, Convention On The Law Applicable To International Sale Of Goods (which I do not know whether your country is a party to) does not seem applicable because registered aircrafts are not covered (yet! Is the aircraft registred?)

I will not give any clue on how a sale of an aircraft is legally to realize in Turkey (there you should do your homework) Because of the nature of the obligation: transferring an aircraft everything „migt“ be regulated differently (you should also check with these regulations) and not even on the law if the purchase was realized in an auction (which makes the whole story legally different).

Best for the exam Dr. Didem Aydin
Associate Professor, Attorney at Law

Alıntı: Alıntı yapılan mesajın sahibi: Konuk Hi, we purchased an aircraft through an advertisement on the internet here in the united states,from an induvidual in istanbul turkey.we have paid for the aircraft, and still have not received. the individual keeps putting us off, and we are asking for our money back,and are not sure how to go about going through your legal system to persue this matter.also is there a statue of limitations on this? thank you very much, gary.