In Order For The Court To Be Reminded Of The Oath Offer, The Party To Whom The Burden Of Proof Falls Must Have Relied On The Oath Evidence
9TH CIVIL CHAMBER OF THE COURT OF CASSATION 2010/2050 E., 2010/5887 K., D.4.3.2010
EMPLOYEE RECEIVABLE ( The Oath Proposed to the Legal Entity shall be taken by the Authorized Body of the Legal Entity – In case of Co-Representation, in order for the Oath to be binding, All of the Persons Authorized to Co-Representation must take the Oath)
OFFERING OATH ( In order for the Court to remind the right to offer an oath, the party to whom the burden of proof falls must have relied on the evidence of oath)
JOINT REPRESENTATION (In order for the oath to be binding, all persons authorized to jointly represent must take the oath)
1086/m.179, 180, 195, 200, 344
SUMMARY : In order for the court to remind the right to offer an oath, the party who has the burden of proof must have relied on the evidence of oath. The oath offered to the legal entity shall be taken by the authorized body of the legal entity. In the case of joint representation, in order for the oath to be binding, all persons authorized to represent together must take the oath.
LAWSUIT : The plaintiff requested a decision for the payment of severance, notice pay, vacation, overtime, weekends, national holidays and general holidays receivables.
The local court partially ruled the request.
Since the judgment was appealed by the lawyers of the parties within the time limit, the file was examined, the file was examined and the necessity was discussed and considered after the report prepared by the examining judge for the case file was heard:
DECISION : 1- According to the writings in the file, the collected evidence and the legal grounds on which the decision is based, all of the plaintiff’s and the defendant’s appellate objections other than the scope of the following paragraph are not relevant.
2- The plaintiff stated that he worked as a concierge in the defendant’s workplace and that his employment contract was terminated unfairly and claimed seniority, notice, leave, overtime, weekends and general holiday receivables.
The defendant defended the dismissal of the lawsuit by stating that the plaintiff’s claims were time-barred, and that the plaintiff did not accept the dates he claimed to have worked and that all his rights and compensations were paid to him.
The court ruled for seniority, notice, week holiday and general holiday receivables. The defendant has submitted a document stating that the plaintiff was paid 15847.67 Riyal for the notice and severance pay in return for the work between 04.07.1989-09.05.2005. This document should be shown to the plaintiff and asked what he has to say. According to the result of this, a decision should be made about the severance and notice pay of the plaintiff, but it is wrong not to value the payment document.
3- On the other hand, the plaintiff is a concierge and there is no witness statement that he worked on week holidays and general holidays. The plaintiff employee could not prove that he worked on week holidays and general holidays. In this case, while it is fixed that the plaintiff did not work on week holidays and general holidays, it is erroneous to award these receivables.
4- In our Civil Procedural Law, the evidence of oath is considered as conclusive evidence; and it is handled under two headings in practice and doctrine. One of them is party oath (definitive oath) and the other is ex officio oath (supplementary oath offered by the judge).
A conclusive oath is the oath offered by the party who has the burden of proof to the other party for the proof of a fact that affects the settlement of the case, and is regulated in Articles 344 and following of the Code of Civil Procedure No. 1086. The party to offer an oath is the party who has the burden of proof but has not been able to prove his claim or defense.
The supplementary oath offered by the judge is regulated under Article 356 of the Code of Civil Procedure No. 1086, and it is accepted that the conditions of “the matter claimed cannot be proved by conclusive evidence” and “the evidence presented to prove the matter claimed cannot convince the judge to the extent that a judgment can be rendered” must be met together.
Again, Article 195 et seq. of the same Law regulates the reply to the merits, and the requirement for the defendant to submit counter-evidence, if any, is clearly stated in Article 200 with a reference to Articles 179 and 180.
Incidentally, it should be noted that the reminder of the right to offer an oath by the court is only possible if the party to whom the burden of proof falls has the right to apply for the oath evidence. It is inconceivable for the court to remind the existence of a right that cannot be legally exercised. It is only possible to rely on the oath evidence if the parties explicitly rely on this evidence in the evidence lists, or if the plaintiff relies on the oath evidence in the statement of claim and the defendant relies on the oath evidence in the statement of reply, or if they include the expression “other evidence” as accepted in practice ( Decree dated 20.10.2008 and numbered 2007/29532 Esas, 2008/27966 Karar).
In cases in which legal entities are parties, the oath offered to the legal entity shall be administered by the authorized body of the legal entity. This representative is the representative at the time the oath is offered, not at the time of the transaction subject to the oath. In addition, in the case of joint representation, in order for the oath to be binding, it is mandatory that all of the persons authorized to jointly represent the legal entity take the oath.
The oath directed to the other party by the party who does not bear the burden of proof does not have legal consequences.
In the concrete case; the defendant party offered the plaintiff an oath regarding the leave of absence. The plaintiff should be offered an oath and the leave receivable should be ruled accordingly.
CONCLUSION : It was unanimously decided on 04.03.2010 that the appealed decision shall be (DISMISSED) for the reasons written above and the prepaid appeal fee shall be returned to the relevant party upon request.