I. INTRODUCTION
Due to inadequate legislative regulations and enforcements regarding the legal status of pets in our country, adoption contracts which have become quite widespread, appear as a condition in the process of pet adoption by animal lovers in recent years. Due to the lack of legal recognition for animals and the ineffectiveness of penalties for cruel acts against them, the widespread practice of adoption contracts among animal lovers aims to protect animal rights, emphasize animals' ownership status, and hold individuals accountable for their actions during the adoption process.
In particular, we would like to state that the fundamental and justified change that has been expected for 17 years regarding animal rights has not been achieved since the fact that the legal status of animals as "property" has been changed only within the scope of the Turkish Criminal Code in by the Law on the Amendment of the Code on the Protection of Animals and the Turkish Criminal Code ("Law No. 7332"), which was published in the Official Gazette on July 14, 2021 regarding the Law No. 5199 on the Protection of Animals ("Code"), which entered into force in 2004. In this article, we will address the widespread "adoption contracts," while firmly rejecting the notion of categorizing animals as mere "property" without distinguishing between owned and stray animals, and examine their implementation and legal status.
II. THE LEGAL STATUS OF ANIMALS AND THE AMENDMENTS MADE TO THE CODE AND THE ANIMAL PROTECTION LAW ON THIS SUBJECT
As we have stated in the introduction of this article, although an important step has been taken regarding animal rights after 17 years with the enactment of Law No. 7332, considering the current problems regarding animal rights, there still has not been a sufficient change in the legal status of animals in line with the needs and demands of animal lovers and civil society organizations. Before expressing our opinion on the legal status of pet adoption contracts, we would say that it is necessary to briefly summarize the changes in Law No. 7332 and the Code regarding the status and legal nature of animals.
According to the prevailing view in the legal doctrine, the concept of "property" is generally defined as anything tangible and "non-human" that has a material existence and can be dominated over. The term "non-human" in this definition leads to the characterization of animals as property, and there is no common regulation on the legal status of animals in the legislation. Article 1 of the Code before Law No. 7332 entered into force states that;
"The purpose of this Law is to ensure the comfortable living of animals and to provide them with good and proper treatment, to protect animals from suffering, pain, and distress in the best possible manner, and to prevent any form of victimization."
With this provision identifies the subject matter that is regulated and protected by the legislative law . Article 3 of the Code titled Definitions defines domestic animals as follows;
"i) Domestic and ornamental animal: Any animal kept or intended to be kept by humans for private pleasure and companionship, especially at home, at their workplace, or on their land, the care and responsibility of which is undertaken by their owners."
Law No. 7332 has introduced different definitions of pets, which are mostly seen as cats and dogs today, as domestic and as ornamental animals. With Law No. 7332, in this article the phrase "ornamental animal" has been removed, and the provisions of the article include the definitions of "pet", "stray animal" and "domestic animal". In this respect, "stray animal" in the Law No. 7332 refers to; "domestic animals that have no shelter or are outside the boundaries of the owner's or guardian's home or land and are not under the control or direct supervision of any owner or guardian". A domestic animal is defined as "animals that have been cultivated and trained by humans". The concept of "pet" is defined as "any kind of animal that is kept by real or legal persons, especially at home, at their workplaces or on their land, for special care and companionship, and whose care and responsibility are undertaken by their owners".
Law No. 7332 made the most significant amendment regarding the sanctions for crimes committed against animals. Before the amendment, the sanction for crimes committed against animals was the administrative fines specified in the Law on Misdemeanors, as animals were considered as "property"; however, both the amounts of administrative fines for crimes committed against animals in the Code on Misdemeanors were increased and the crimes committed against owned animals were included in the scope of the Turkish Criminal Code No. 5237 ("TPC"). In the second paragraph of Article 151 titled "Damage to Property" of the TPC, domestic animals/pets were considered as property. With the amendment made within the scope of the Code, the second paragraph of Article 151 of the Turkish Criminal Code was repealed and animals were removed from the status of "property", taking into account that animals also carry life. In this respect, cruel behavior against animals have been recognized as "crimes" and the issue regarding animals in Article 151 of the TPC has been changed from "damage to property" to "damage to life". Articles 28 and 28/A of the Code list the unlawful acts and stipulate that administrative fines and judicial penalties will be applied.
However, we would like to point out that although the importance of the amendments made by Law No. 7332 cannot be underestimated, the need for a regulation to be adopted in all laws regarding the status of animals as "living beings" has not yet been fulfilled, except for the relevant provision of the Turkish Criminal Code, and the lack of a distinction between owned and unowned animals, as stated by the society, animal lovers and non-governmental organizations. In our opinion, the fact that adopters require adoption contracts in pet adoption procedures is since despite the changes made in the legislation, the legal nature of animals has not fundamentally changed and the deterrence in the application of sanctions remains light.
III. OUR EVALUATIONS OF PET ADOPTION CONTRACTS
As we have mentioned before, due to the shortcomings of the legislation on animal rights and the lack of sufficient deterrence in both the amount and enforcement of penalties for crimes against animals, individuals who adopt animals prefer to draw up adoption contracts to ensure that the adopter is held responsible and sanctioned in case the animal is not provided with the necessary care and/or is subjected to any form of ill-treatment. Although with the amendments brought by Law No. 7332, damaging animals have been removed from the provisions of "damaging property" within the scope of the Turkish Criminal Code unfortunately, in the face of the exponential increase in the number of crimes committed against animals and the number of stray animals, since there is no regulation within the scope of the Turkish Civil Code regarding the fact that animals do not have the quality of "goods/property", the adoption contracts are evaluated within the scope of the contracts made regarding the goods and are tried to be applied by analogy.
Despite the widespread use of pet adoption contracts, we see that there is no common concept regarding the legal status of these contracts. Most animal pet adoption contracts consist of contract templates prepared by animal lovers and non-governmental organizations, and when these framework contracts are examined, it can be seen that they share some similar characteristics with two types of contracts: donation contracts and loan contracts. These contracts are the donation contract and the lending contract. However, we would like to emphasize that upon examining the legal nature of donation contracts and loan contracts, animal adoption contracts can be considered as a type of atypical contract that shares some characteristics with these two contract types but does not fully meet their legal conditions and features.
1. Evaluation of Pet Adoption Contracts in Terms of Donation Contracts:
Article 285-298 of the Turkish Code of Obligations No. 6098 ("TCO") provides the following definition of a donation contracts;
"A contract of donation is a contract whereby the donor undertakes to make a gratuitous gift from his property to the donee, which shall have inter vivos consequences."
The word "property" in this provision is significant, and considering that the concept of property is defined as assets, rights, or debts that can be measured in monetary terms, it can be argued that adoption contracts do not fully possess the nature of a donation contract, as stray animals do not have a monetary value. Therefore, adoption contracts cannot be considered as precisely a donation contract in terms of their subject matter. While pet adoption contracts can be characterized as donation contracts when they are interpreted as the free, gratuitous transfer of an animal owned by one person to the ownership of the other party, we believe that these contracts do not fully comply with the provisions specified in the TCO, considering that the contract does not result in an increase or decrease in the assets of the donor and the donee that can be measured in money.
2. Our Evaluation of Pet Adoption Contracts in Terms of Loan Contracts;
When we examine the pet adoption contracts created by platforms and non-governmental organizations formed by animal lovers, it is seen that the articles in these contracts aim to take back the animal for the protection of the animal in case the adopter does not fulfill his/her responsibilities towards the animal. Contracts that involve the transfer of possession to the adopting person while retaining ownership by the person who carries out the adoption and include provisions for reclaiming the animal under certain conditions are regulated within the scope of loan contracts, as specified in Article 379 of the TCO. Provisions of Article 379 of the TCO;
"A loan for use contract is a contract whereby the lender undertakes to leave the use of a thing to the borrower without consideration and the borrower undertakes to return the thing after using it."
is as follows. As stated in the relevant provisions of the TCO, usage loan contracts involve the transfer of possession of something to the other party for free usage and after the usage period, the subject of the contract is to be returned to the lender. Nowadays, it is seen that animal lovers are drafting adoption contracts as loan contracts with the purpose of having the right to reclaim the adopted animal for protection in case of any mistreatment.
However, considering the purpose of pet adoption contracts, we would like to state that these contracts do not fully meet the characteristics of the use loan contract specified in the provisions of Article 379 of the TCO and the wishes and needs of the animal adopter, since the adopter cannot own the animal, is obliged to return the animal, and most importantly, the adopted animal is not a "usable thing".
IV. CONCLUSION
Although the deficiencies and gaps in the legislation on animal rights, the increase in crimes against animals, and the lack of enforcement and deterrence of sanctions against crimes that have been tried to be eliminated with Law No. 7332 on the Protection of Animals, the Law No. 7332 is incomplete in terms of recognizing the legal status of animals as "goods/property" in terms of all laws. Considering the battles fought for animal rights in our country, we believe that the most fundamental way is to remove animals from the status of movable property and to recognize them as "lives" by all segments of society with unique, comprehensive, and deterrent legal regulations.
Despite the regulations introduced by Law No. 7332, animal lovers and non-governmental organizations have started to implement the adoption procedure with the condition of signing an adoption contract to protect the rights of animals, to ensure deterrence in crimes committed against animals, and to build a responsibility mechanism. In light of the evaluations, we have made in this article, although pet adoption contracts have similarities with donation and loan contracts in terms of certain characteristics, it is seen that they do not fully meet the characteristics of these two types of contracts, considering both the purpose of adoption contracts and the features and conditions specified in the TCO for donation and loan contracts, it can be observed that these two contract types do not fully match the characteristics of adoption contracts. In this respect, due to the insufficient legislation on the legal status of animals and animal rights, adoption contracts can only be considered atypical contracts that have some features of donation and loan contracts; however, recognizing animals as "sentient beings" rather than "property" under all laws would lead to adoption contracts being legally recognized in a manner that better aligns with their purpose and ensures greater protection of animal rights and welfare.
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